Before McMILLIN, P.j., Coleman, And Southwick, JJ.
The opinion of the court was delivered by: McMILLIN, P.j.
DATE OF JUDGMENT: January 24, 1997
TRIAL JUDGE: HON. HENRY LAFAYETTE LACKEY
COURT FROM WHICH APPEALED: CALHOUN COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: MURDER: SENTENCED TO SERVE A TERM OF LIFE IN PRISON
¶1. This case is an appeal from a criminal conviction returned by a jury in the Circuit Court of Calhoun County. Willis Booker stands convicted of the murder of James Avant and has appealed his conviction to this Court, raising three issues that he claims require his conviction to be reversed. We disagree and affirm the conviction.
¶2. Evidence presented by the State indicated that Booker and Avant had a heated face-to-face confrontation on the evening of Avant's death. Cooler heads had prevailed and Avant had turned and begun to walk away when he was attacked from the rear by Booker, who had produced a knife that had been concealed on his person. Booker inflicted a mortal wound with the knife on Avant before he could be restrained. Booker, in his defense, claimed that Avant had long been engaged in a practice of threatening, taunting and tormenting Booker, causing him to fear for his personal safety. Booker claimed that this fear had led him to carry the knife at all times. He said that Avant had physically attacked him and that he had drawn the knife to use in self-defense.
II. The First Issue: The Admission of Evidence of Booker's Prior Criminal Conviction
¶3. During pre-trial discovery, defense counsel requested the State to furnish "a copy of the criminal record of the Defendant, if the State of Mississippi proposes to use any such record for the purpose of impeachment." The State responded "none."
¶4. After the State rested, Booker elected to testify in his own defense. During direct examination, his attorney asked, "Willie, what crimes have you ever been convicted of?" Booker replied, "None, really." A probation officer who happened to be observing the trial knew that Booker had a 1991 conviction in Calhoun County for aggravated assault and he informed the prosecuting attorney of this fact. Outside the presence of the jury, the prosecuting attorney notified the court of this information and indicated his intention to cross-examine Booker concerning that conviction. Defense counsel objected, claiming that the failure to disclose the conviction was a discovery violation that could only be cured by the exclusion of the evidence. Over defense counsel's objection, the trial court permitted the State to cross-examine Booker about his earlier conviction. Booker now claims that this was reversible error since this "ambush" by the State left his credibility in tatters.
¶5. We find this argument unpersuasive. In the first place, we find ourselves unsympathetic to the proposition that the State's failure to disclose a prior conviction grants a criminal defendant a license to blatantly lie to the jury on that issue without any adverse consequence. Certainly, based on the State's discovery response, Booker was free to take the stand and relate his version of the events surrounding Avant's death without concern that his credibility could be attacked by disclosure of a prior conviction that met the admissibility standard in Mississippi Rule of Evidence 609. However, rather than availing himself of the protective shield afforded him by the State's negative discovery response, Booker elected to rely on what he perceived to be the State's ignorance of a prior criminal conviction to affirmatively misrepresent his general character to the jury by claiming that he was a law-abiding citizen with no history of prior criminal activity - a proposition that he had to know at the time was false. The rules of evidence and the rules regarding criminal discovery, as they relate to impeaching a witness by use of prior criminal convictions, are designed to prevent trial by ambush and to permit a defendant to make an informed decision as ...