Before McMILLIN, P.j., Herring, And Hinkebein, JJ.
The opinion of the court was delivered by: Herring, J.
RICKY LENARD, APPELLANT v. STATE OF MISSISSIPPI, APPELLEE
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT: 01/30/96
TRIAL JUDGE: HON. JOSEPH H. LOPER, JR.
COURT FROM WHICH APPEALED: GRENADA COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: AGGRAVATED ASSAULT: SENTENCED TO SERVE A TERM OF 12 YRS IN THE MDOC & DEFENDANT PAY COURT COSTS & ASSESSMENTS IN THE AMOUNT OF $186
DISPOSITION REVERSED AND REMANDED
Ricky Lenard appeals from a judgment of the Circuit Court of Grenada County, Mississippi, wherein a jury convicted him of aggravated assault. The trial court sentenced him to serve twelve years within the custody of the Mississippi Department of Corrections. For the reasons set forth in this opinion, we reverse and remand this case for a new trial.
On January 15, 1995, at approximately 9:00 P.M., James Gregory entered Lenard's Three Corners, a local bar in Grenada, Mississippi, owned by Jeff Lenard, the brother of the Appellant. According to Gregory, a friend of his introduced him to Melissa Barnett, and the two danced. Gregory and Barnett were sitting at the bar when they were approached by Ricky Lenard. Gregory was wearing a cowboy hat, and Gregory and Barnett both testified that Ricky Lenard asked Gregory if he was a cowboy. Gregory snickered, "yes," and then Lenard said "I think cowboys are f------ dorks." Thereafter, Lenard shoved Gregory off the bar stool on which he was sitting. Barnett stated that Lenard shoved Gregory a second time. Gregory testified that he suggested to Lenard that they take the matter outside, while Lenard testified that the bar bouncer ordered the two men leave to the premises. Lenard admitted that he "may have" shoved Gregory off the stool.
Lenard walked in front of Gregory as they left the bar. Melissa Barnett followed behind Gregory. According to Gregory, Lenard turned immediately after they stepped outside and stabbed Gregory in the forehead with a knife. Lenard, on the other hand, testified that Gregory made the first swing and had a knife in his hand. Lenard stated that he grabbed the knife and turned it back at Gregory stabbing him in his forehead. Gregory, however, testified that he never had a weapon of any kind on him. After Lenard stabbed Gregory in the forehead, the two men wrestled to the ground. Gregory stated that as they fought, Lenard stabbed him in the back several times. Lenard testified that he blacked out and did not recall stabbing Gregory.
After the two men separated, Gregory asked Lenard why he had stabbed him. Lenard responded that he did not know why. Lenard left the scene before local law enforcement officers arrived, and Gregory was taken to the hospital where he was treated for his injuries. He was hospitalized with a punctured lung.
On the morning after the altercation between the two men, Lenard turned himself into the Grenada County Sheriff's Department. An investigator for the Grenada County Sheriff's Department, Buster Grantham, gave Lenard a Miranda*fn1 warning, and Lenard gave an oral statement and then a written statement as to what happened on the preceding evening. Lenard's written statement is as follows:
At Jeff Lenard Beer joint around 9:00 o'clock or so James Gregory started a fight with me on the place. I shoved him away from me. And I went outside [and] he came out the door behind me [and] said he was going to kill me. He swang something at me. I thought it was a knife. I felt it graze my hand. I didn't know what to do. All I could do was try to defend myself. I guess I just blacked out or something. The next thing I remember was some girl was leaned against me up against the wall. Then I kept hearing every body say you better leave so I left and went home.
At trial, Buster Grantham testified that Lenard orally informed him that after observing Gregory holding a knife he "pulled his own [Lenard's] knife" to defend himself. Lenard raised a contemporaneous objection to this testimony on the basis, in essence, that the prosecutor violated the court's discovery rules by not making him aware of the oral statement prior to trial in which Lenard admitted pulling out a knife. The oral statement contradicted Lenard's written statement in which he did not admit possessing a knife. The trial court overruled the Appellant's objection and stated that Lenard would have the opportunity to cross-examine Grantham concerning the oral statement. At trial, Lenard testified in his own behalf. In his testimony, Lenard admitted to drinking approximately sixteen beers prior to his altercation with Gregory. Lenard testified that it was Gregory who introduced a knife to the struggle between the two men, and he was forced to defend himself. While Lenard claims that he recalls turning the knife away from himself and toward Gregory, he does not recall stabbing Gregory in the back because he claims he blacked out at some point during the struggle.
At the close of the trial, the jury convicted Lenard of aggravated assault, and the trial court sentenced Lenard to twelve years within the custody of the Mississippi Department of Corrections. It is from this conviction and sentence that Lenard appeals.
Lenard assigns five issues for our consideration on appeal:
I. THE TRIAL COURT ERRED IN ALLOWING A PROSECUTION WITNESS TO TESTIFY TO MATTERS WHICH WERE NOT FURNISHED TO THE DEFENDANT IN DISCOVERY AND WHICH WERE ACTUALLY IN VARIANCE WITH THE WRITTEN STATEMENT FURNISHED PURSUANT TO DISCOVERY.
II. THE COURT ERRED IN NOT ALLOWING THE DEFENDANT TO PRESENT TO THE JURY THAT, BASED ON HIS VERSION OF THE FACTS, THE JURY COULD FIND HIM GUILTY OF A LESSER INCLUDED OFFENSE OF SIMPLE ASSAULT.
III. THE TRIAL COURT ERRED IN REFUSING THE INSTRUCTIONS ON BEHALF OF DEFENDANT.
IV. THE COURT ERRED IN REFUSING TO ALLOW DEFENDANT'S ATTORNEY TO QUESTION THE PROSECUTING WITNESS, THE ALLEGED VICTIM, JAMES L. GREGORY, ABOUT HIS PRIOR CONVICTION OF A FELONY, BEING THE FELONIOUS POSSESSION, TRANSFER ...