BEFORE HAWKINS, P.J., DAN LEE AND ROBERTSON, JJ.
HAWKINS, PRESIDING JUSTICE, FOR THE COURT:
Richard Gallion appeals from his conviction of armed robbery in the circuit court of the First Judicial District of Hinds County and sentence to life imprisonment.
Only one issue of substance is presented on this appeal, whether the State's use of photographs not shown to defense counsel prior to trial constituted a discovery violation of Uniform Criminal Rule 4.06 requiring reversal. Under the circumstances of this case we find it did not, and affirm.
On October 19, 1981, the Poindexter branch of the First National Bank, located in downtown Jackson, was robbed by two males of approximately $19,400. The men entered the bank around 10:00 a.m. and proceeded to the window of the head teller Ethel Fisher. One of the men, wearing a lady's sheer blue scarf over his face, stepped up to the window and asked for money. The other man, who was wearing a straw hat, pointed a pistol at Fisher while the first man stuffed money in a bag. After taking funds from Fisher, the" bag man "proceeded to the teller window of Pamela Roberts, and under pistol threat took money from her. Fisher identified the defendant, Richard Gallion, as the" bag man. "
Bank teller Brenda Burse Walker testified that the gunman wore black clothes and a straw hat, and the bag man wore a blue scarf, blue shirt and slacks, and a light blue knit hat. Walker identified Richard Gallion as the bag man. (At the first trial, Walker had stated that Richard was the gunman. R.70)
Bank secretary Inez Little testified that the bagman wore a light blue shirt, darker pants, a chiffon-like scarf, and a straw hat. Little testified that the gunman had black pants and a shirt. Little identified Richard Gallion as the bagman and noted that he had put on weight.
Bank customer A.D. Montgomery testified that the bagman wore a powder blue ski cap, a blue veil, and dark blue clothes. Montgomery identified Richard Gallion as the gunman.
Although there were some discrepancies by the witnesses as to clothing worn by the defendant, all eyewitnesses identified Richard Gallion as one of the two men participating in the bank robbery that day. The other robber was M.C. Gallion, a brother of the defendant.
Detective C. M. Crisco recovered a portion of a sheer blue scarf and other items of clothing while searching the basement of an abandoned house next door to the residence of Gallion's sister, Hilda Gallion. Inside the trousers appeared the names" M. C. Gallion, Michael Gallion, M. C. John Gallion "marked with a laundry pencil. At trial, Fisher and Walker recognized the clothing as resembling that worn by the men who robbed the bank.
Richard Gallion denied robbing the bank. He testified that on the morning of October 19, 1981, he walked from his car to Hilda's house around 8:15, and went with his sister and her children to the Unifirst Bank, leaving about 9:30. Gallion stated that he remained in the car with his sister's children while she went inside to make a withdrawal. Hilda corroborated Richard's alibi. Unifirst Bank records also revealed evidence that Hilda did make a $10.00 withdrawal from Unifirst Bank at 9:51 a.m. on that date.
Gallion testified that he had only two or three dollars when he went to the bank with his sister, but when he was arrested later that day he had $164 in cash on his person. Gallion was convicted of armed robbery and sentenced to life in the custody of the Mississippi Department of Corrections.
A NEW TWIST TO RULE 4.06.
Rule 4.06 of the Uniform Criminal Rules provides, in pertinent part:
The prosecution shall disclose to each defendant or to his attorney, and permit him to
inspect, copy, test, and photograph upon request and without further order the following:
(5) Exhibit any physical evidence and photos to be offered in evidence; and
(6) Copy of any exculpatory material concerning defendant.
Defense counsel's August 15, 1985, letter to the prosecution contained the following paragraphs:
Further, you advised me that the photographs taken during the actual commission of the robbery had been destroyed by the Jackson Police Department.
If I have made any incorrect statements regarding our discussion in conference, please advise me immediately.
The photographs referred to by defense counsel were Polaroid snapshots taken from a videotape made by the bank's surveillance camera. During trial Officer Crisco did in fact testify that the photographs were never used or tagged as evidence because of their poor quality.
We now factually detail how the bank's video and the photographs therefrom create the Rule 4.06 violation issue on this appeal.
The opening statement of defense counsel contained the following comments:
The testimony that will be presented to you is, because of the age of this case, recollection of events that is four years old and there's going to be one really important piece of evidence that Mr. Peters didn't mention to you today and I want you to keep this in mind as the evidence is presented. [That's photographs.] * This is a bank robbery. There were electronic cameras in the bank at the time. There were pictures being taken. [We expect the evidence to show that the photographs were obtained, that they were turned over to the State of Mississippi and that those photographs will not be presented to you today for your inspection and view.] * You will not have the opportunity to look
at the unforgetting eye of a camera. You will be asked to look through - and I think Mr. Peters used the lying eyes this morning - those pictures show what happened. They would show how people were dressed. They would show whether they had masks on it, masks over their face - whether they could, in fact, have been identified as the witnesses tell you. They would show heights of witnesses, approximate weights of witnesses, locations of customers, who was where. There was a record that would not require - would not ask people who were under severe stress, having a gun pointed at them - to come into court four years later and rely on their memory to send a man to the penitentiary the rest of his life. [We ask that you listen to those witnesses' testimony carefully and that you keep in the back of your mind where are the photographs.] * [Emphasis added]
During cross-examination of bank teller Ethel Fisher, Gallion's attorney asked the following:
Q. You have been asked about the various security devices in the bank. There were cameras, in fact, operating during this whole bank robbery, were there not, please, ma'am?
Q. And you have had a chance to view those pictures since the bank robbery, haven't you?
Q. And you recall when you did view them that those were clear - some of them were pretty good and some of them were fuzzy, but some of them were fairly distinct photographs, weren't they?
Q. And they, of course, showed the type clothing that the robbers were wearing, didn't they?
Q. And those photographs, I believe were turned over to the Jackson Police Department after the robbery, weren't they?
Q. And that's the last you have seen of them. Is that right?
Fisher was then asked to describe what Gallion was wearing the day of the robbery, but was unable to do so.
During direct examination of Officer Crisco, he testified that photographs were taken, but they were of poor quality. Crisco stated that he did not know where the photographs were at the time he was testifying. On cross-examination, Crisco admitted that the photographs showed the location of the participants in the robbery, but did not recall whether or not the photographs were used in the investigation of the case.
At the beginning of the second day of trial, the following ...