author: HAWKINS, Justice, ROBERTSON, Justice,

text:
    John Albert BOX v. STATE of Mississippi.
    No. 54105.
    Supreme Court of Mississippi.
    Aug. 24, 1983.
    Jon M. Barnwell, Whitman D. Mounger, Greenwood, for appellant.
    Bill Allain, Atty. Gen. by Bill Patterson, Sp. Asst. Atty. Gen., Jackson, for appellee.
   HAWKINS, Justice,

for the Court:

I.

At dusk on the evening of July 27, 1981, Ms. Catherine B. Short was robbed at gunpoint in her home in Greenwood, Mississippi. In due course on October 16,1981, John Albert Box, defendant below and appellant here, together with two others, Robyn Sabrina Russell and Timothy Ray Davis, were charged with armed robbery in a joint indictment returned by the Leflore County Grand Jury. Miss.Code Ann. § 97-3-79 (1972). The proceedings against Box were severed from those against Russell and Davis.

On March 17, 1982, this case was called for trial in the Circuit Court of Leflore County, Mississippi. After hearing all of the evidence and receiving the instructions of the court and the arguments of counsel, the jury on the following day found John Albert Box guilty of armed robbery. As a recidivist, Box was sentenced to life imprisonment without eligibility for probation or parole.

From this conviction and sentence, Box appeals. Because of the State’s failure to comply with its obligations under Rule 4.06 of Uniform Criminal Rules of Circuit Court Practice, we reverse.

II.

A.

Shortly after indictment, defendant Box filed a written motion seeking discovery of nearly every aspect of the State’s case. He properly invoked the provisions of Rule 4.06 which, in pertinent part, provides as follows:

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:
(1) Names and addresses of all witnesses in chief proposed to be offered by the prosecution at trial;
(2) Copy of any recorded statement of the defendants to any law enforcement officer.
Upon a showing of materiality to the preparation of the defense, the court may require such other discovery to defense counsel as justice may require.

Although under the rule it was not necessary, a hearing on Box’s discovery motion was held November 19, 1981, some four months prior to the trial of this case. Box’s attorney specifically requested:

“A list of all of the State’s witnesses having knowledge of the case, along with their addresses.”

The State’s attorney responded:

“The State has no objection to providing that. We have a list of witnesses which we will furnish him if he has not already been furnished. That’s witnesses having personal knowledge, not hearsay knowledge.”

Defendant Box also requested production of physical and tangible evidence in order to enable his counsel to examine same. The prosecution interposed no objection and the court noted “You are entitled to that.” We do not find the word “photographs” expressly used in defendant’s discovery request. On the other hand, the only reasonable construction of the discovery allowed at the November 19 hearing was that the prosecution should produce photographic evidence. We do not understand the State to contest the point here.

At trial the State called as its witness one Michael Waters, the owner of the automobile allegedly used to make the trip from Jackson to Greenwood to perpetrate the robbery. Waters was a witness clearly within the scope of the discovery allowed at the November 19 hearing. His name was not disclosed to the defense until late on the evening before the trial began.

In addition, the State offered into evidence photographs of the Waters automobile. These photographs depicted an automobile similar to that observed on the evening in question by two of Ms. Short’s neighbors. The photographs likewise were within the scope of the discovery order but had not been disclosed until a few moments before they were produced at trial. Over the strenuous objection of the defendant, these items of evidence were received and were presented to the jury. Defendant did not, however, seek a continuance or a mistrial.

On this appeal, defendant Box makes the following assignment of error:

“The court erred in admitting into evidence testimony of a witness and photographs which had not been furnished defense counsel in compliance with an order for production.”

We find the assignment well taken and dispositive.

B.

The question presented here brings into direct conflict two important interests. First, there is the prosecution’s interest in presenting to the jury all relevant, probative evidence. On the other hand, there is the accused’s interest in knowing reasonably well in advance of trial what the prosecution will try to prove and how it will attempt to make its proof which, of course, includes the names of persons the State expects to call as witnesses.

This State is committed to the proposition that these conflicting interests are best accommodated and that justice is more nearly achieved when, well in advance of trial, each side has reasonable access to the evidence of the other. See Rule 4.06, supra; Rules 26-37, Miss.R.Civ.P.

C.

The instant controversy surrounds the testimony of the witness, Michael Dean Waters, and the admission of photographs of Waters’ automobile. Without contradiction, the automobile used by the robbers was the Waters automobile.

On July 29, 1981, officers of the Greenwood Police Department obtained a statement from Box’s accomplice, Timothy Davis, which, in pertinent part, indicated that Russell, Davis and Box were together in Jackson on the day of the robbery and that they borrowed Waters’ automobile. In other words, nine months before the trial be,low, the State knew of Waters and knew that he was a witness who most likely could place Box with Russell and Davis leaving Jackson in Waters’ automobile en route to Greenwood on the day of the robbery. In view of the other evidence at trial, such testimony was important to the State’s case.

Waters’ identity as a prospective witness was not disclosed until the evening before the trial began. Timely and proper objection was made. Nevertheless, Waters was allowed to testify.

When Defendant objected to the State’s attempt to introduce this evidence at trial, the prosecuting attorneys were questioned by the trial judge at length. They were asked to give the reason for their failure to disclose the identity of Waters and to allow pretrial examination of the photographs. Both the district attorney and the assistant district attorney were candid with the court. Until the evening before the trial, they simply were not aware of the indication in the Davis statement that the robbers borrowed Waters’ car. Accordingly, they had no actual knowledge that Waters was in a position to testify that he saw Box with Russell and Davis on the day of the robbery leaving Jackson in a car fitting the description given by the eyewitness in Greenwood. The information was available to them in the form of the Davis statement.

Under the facts of this case we believe reversal is warranted. Although we are not hide-bound to reverse every case in which there was some failure by the State to abide by a discovery rule, this case should be reversed and remanded for a new trial. Prosecuting attorneys, as well as defense attorneys, must recognize the obligation to abide by discovery rules. A rule which is not enforced is no rule.

For the reasons stated above, this case is reversed and remanded for a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, DAN M. LEE and ROBERTSON, JJ., concur.

ROBERTSON, DAN M. LEE and PRATHER, JJ., specially concur.

ROBERTSON, Justice,

specially concurring:

I.

I concur in everything said by Justice Hawkins in his opinion for the Court. I certainly concur in the Court’s judgment that John Albert Box’s conviction be reversed and that the case be remanded for a new trial on all issues. In my view, however, there is at the core of this case something bigger than the by no means insignificant case of John Albert Box.

This case is one of many. It presents the situation we see repeatedly. Rule 4.06 of our Uniform Criminal Rules of Circuit Court Practice is being diluted daily. Over and over, we see the situation where a timely discovery request is made by the defendant, where the identity of a witness or the existence of physical evidence is not disclosed by the state until the last minute (with a variety of excuses being offered), where the trial judge then gives defense counsel a minimal period of time to talk to the witness or examine the evidence, and the trial proceeds apace.

Emphatically, this is not the way Rule 4.06 is supposed to operate.

With deference and with some temerity, I suggest that this Court ought do more to vindicate the important interests secured by Rule 4.06 and discovery orders which may be entered thereunder — and to assure that discovery requests or orders in criminal cases are taken seriously.

II.

Rule 4.06 has been on the books for over four years now. We have considered many cases arising under it, where discoverable but undisclosed evidence was offered by the state. See, e.g., Overstreet v. State, 369 So.2d 275 (Miss.1979); Thomas v. State, 377 So.2d 593 (Miss.1979); Gallion v. State, 396 So.2d 621 (Miss.1981); and Spots v. State, 427 So.2d 127 (Miss.1983). And now we have the case of John Albert Box.

My concern is that nothing in our prior cases gives the trial judge any clear guidelines suggesting what he ought do when faced with the sort of situation we confront here: The attempt by one party or the other to offer as evidence testimony, matters, or things which ought to have been disclosed in discovery but weren’t. We tell the trial judge he has a certain amount of discretion without telling him how much. We tell him to consider how the defendant may be prejudiced, again without giving much of a clue how much or how little prejudice may require a particular result.

On appeal we have developed an equally ruleless, ad hoc approach to deciding these cases. We inquire as to whether the defendant was prejudiced by the state’s failure to disclose discoverable evidence. See, e.g., Gallion v. State, supra, 396 So.2d at 622; Spots v. State, supra, 427 So.2d at 130. Then we affirm or reverse, seemingly willy nilly.

Today’s case continues the pattern. While we reverse, the opinion of the Court wholly fails to articulate a principled basis for so doing. Far more important than that, there is little in the opinion of the Court that will give the trial judge any real guidance as to what he ought to do when confronted with such cases in the future. Presumably in a future case which is essentially identical in its facts to this case, the trial judge will refuse to allow the state to use the undisclosed evidence. But suppose he chooses to overrule the defendant’s objection, and defense counsel then moves for a continuance, claiming unfair surprise. Nothing in the Court’s opinion or in our earlier Rule 4.06 cases tells the trial judge whether he can or ought grant the continuance.

The record reflects that in this case the trial judge let the undisclosed evidence in on the premises that the defendant was not being unfairly prejudiced. I would like to think that today’s decision, reversing as it does, would be construed as disapproving the prejudice inquiry altogether. The opinion, however, fails to make that point clear either.

In short, I submit that the state of our cases is sufficiently unhappy and the cutting of corners around Rule 4.06 is sufficiently widespread that we have a responsibility to step in. We have had enough experience. What is happening is apparent to all. I suggest that the only way we can secure enforcement of Rule 4.06 is to provide further clarification regarding the consequences of the state’s failure to make discovery — for whatever reason. We should provide this clarification in the form of guidelines that will be fair to both the prosecution and the defense — and will be consistent with the public interest.

III.

A.

Both the prosecution and the defense have important interests at stake in Rule 4.06 cases. Vigorous though fundamentally fair prosecutions are the public’s interest. In my view, these interests will be fairly accommodated and served by employment of and adherence to the general guidelines I suggest below. There are, to be sure, an infinite variety of factual contexts in which failure-to-make discovery problems will arise in criminal cases. I therefore put my suggestions in the form of flexible guidelines that ought generally be followed, not rigid rules the letter of which must always be obeyed.

My suggested guidelines are:

First

In cases where the state seeks to offer into evidence that which it ought to have disclosed pursuant to a discovery request but didn’t, it is first incumbent upon the defendant to make, timely objection. If this be done, the court’s initial response should be a directive that the defense be given a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs, etc. The court should not be grudging in this allowance.

Second

If, after examining the evidence involved or interviewing the would-be witness, the defendant is of the opinion that he has been subjected to unfair surprise and that his defense will be prejudiced if the evidence is offered without his having had the opportunity to investigate independently the credibility of the evidence and possible responses thereto, it should then be incumbent upon him to request expressly that the court grant a continuance. In most instances this will necessitate a declaration of a mistrial. In any event, and in such a situation and absent unusual circumstances to the contrary, the trial court ought conditionally grant the requested continuance, at which time the matter is checked back to the state.

Third

If the state is of the opinion that for whatever reason it wants to use the witness or the evidence in its case against the defendant, the order for a continuance must stand. At this point, however, the state should have the election. If the state withdraws its offer of the evidence in dispute and agrees to proceed wholly without use of this evidence, the order for continuance should be withdrawn and the trial should proceed as in the ordinary course.

I would hold that these guidelines ought generally be applied in all cases in which the new evidence has not been disclosed to the defendant more than 48 hours prior to the beginning of the trial. There may be cases where it would be appropriate to apply these guidelines where discoverable but unproduced evidence has been disclosed to defendant more than 48 hours before trial.

B.

There are several salient features of the procedure outlined here.

First and foremost, our concern is with fairness, with avoiding unfair surprise to either the state or the defense. I emphasize that we are dealing with otherwise admissible evidence, with otherwise competent witnesses, where the sole objection is a failure to disclose in response to a discovery request. Under these circumstances, if this defect can be cured, the evidence should be admitted and the case should proceed. I would not adopt a per se rule of inadmissibility of undisclosed evidence. Such is not necessary to the effective enforcement of our discovery rules.

Second, these guidelines would effectively take this Court out of the business of judging ad hoc and without an adequate record whether the defense has been prejudiced, that is, subjected to unfair surprise. This is proper because this Court is not in a position to decide that a tardy disclosure of the witness or evidence has or has not resulted in unfair surprise, or prejudice, to the defendant. This Court has only the cold record to review. That the record does not affirmatively reflect prejudice does not logically demonstrate that there has been none. Where there is prejudice, it more than likely will pertain to matters that will not be reflected in the record. The line of questioning defense counsel failed to pursue because he didn’t have time to prepare will not be reflected in the record. The rebuttal witness who could have impeached the state’s newfound witness, but who was not found because the defense had no time to get out and search for him, will not be in the record. There are numerous other similar examples of actual prejudice that will necessarily not be disclosed in the record but which the experienced trial lawyer will readily call to mind.

Moreover, there is little value in judicial speculation regarding the probative value or significance of the evidence to the state’s case. It should be presumed that, if the state seeks to have the evidence placed before the jury, the state is of the opinion that the evidence is such that it will enhance the chances of conviction. Likewise it should be presumed that the defendant will suffer this form of prejudice from the offer of this evidence.

Third, the decision whether a continuance be sought should be exclusively the defendant’s. Here, defense counsel should be required to make a judgment call. For the reasons just noted, defense counsel is in a far better position to make that judgment call than is the trial judge. The trial judge, in his position of neutrality, is not by temperament or role as sensitive to possible prejudice as is defense counsel. It being presumed that the evidence would be prejudicial to the defendant, defense counsel should be allowed to make the judgment whether he wants the trial stopped.

Fourth, these guidelines recognize that, in a great many cases, merely giving defense counsel a recess within which he may interview the newly found witness or examine the newly discovered document is not sufficient to prevent prejudice to the defendant. Defense counsel not only needs the chance to find out what the witness knows and will say on the witness stand. He needs a full and fair opportunity to investigate independently the witness’ credibility and veracity. The witness may have some undisclosed motive for wanting to testify against defendant, but the brief recess interview may not disclose that. There may be a dozen other ways to impeach or discredit the witness, if counsel only had time to develop and pursue his leads. These guidelines offer the defendant the same opportunity to prepare a response to the newly discovered witness or other evidence as the law affords the defendant on all other features of the prosecution’s case.

I emphasize here that the defendant should not be allowed to have his cake and eat it too. I would not adopt a per se rule of inadmissibility. If on balance defendant is of the opinion that he has been unfairly surprised by the state’s new evidence, he ought be required affirmatively to request a continuance. As indicated, defendant ought first have been allowed a reasonable opportunity to examine the newly discovered evidence or to interview the newly discovered witness. At that time, defense counsel must make a decision. The trial may otherwise have progressed to his satisfaction. He may feel that a reasonably favorable jury has been seated. In this case, the two eyewitnesses had failed to identify Box. The prosecuting witness, Ms. Short, not only did not identify Box but stated that there were only two people who participated in the robbery. It was apparent that Robyn Sabrina Russell was not going to testify. For these or other reasons it may have been that, at the time the evidence in question was offered, the Defendant felt on balance he should proceed. He may have concluded that the prejudice resulting from unfair surprise was outweighed by good breaks he had gotten on other aspects of the trial. I do not know, and nothing turns on my speculations. I merely suggest that, as a matter of sound trial tactics, defense counsel, after his recess to acquaint himself with the new evidence, may rationally eschew moving for a continuance.

The defendant’s objection when the evidence or witness is tendered at trial should entitle him only to a temporary break in the action, a reasonable opportunity to examine the evidence or to interview the witness— nothing more, nothing less. Where the objection is not followed by a motion for a continuance, the defendant should be presumed to have made his judgment call and to have decided on balance that his chances are better if the case proceeds, rather than giving the state the opportunity to start afresh. Where no motion for a continuance is made, the Rule 4.06 issue should be deemed waived for purposes of appeal.

Finally, the general guidelines suggested above would realistically and effectively tell the state that its obligation to conform to discovery orders must be taken seriously. The state ought not be heard to say “we only discovered this evidence last night”, or “the defendant should have known about this witness all along anyway” or, “this evidence is merely cumulative or corroborative”, or the like.

Summarizing, if it be found that the state has for whatever reason failed to conform to a proper discovery request, after reasonable recess and opportunity for the defendant to examine the evidence or witness, defendant should be granted the right to request a continuance. The court should honor such a request, subject only to the state’s judgment that the offer of the new evidence be withdrawn. If the district attorney in the exercise of his judgment determines to withdraw his offer, this should wholly vitiate the necessity for continuance or a new trial. Under such circumstances, the trial court should rule that the evidence tendered by the state, having been objected to by the defendant, is inadmissible. The trial should resume and proceed as in other cases where objections to offered evidence may have been sustained.

C.

I emphasize that there are two important checks against defense abuse built into these guidelines. I recognize the instinct of defense counsel to avoid trial as long as possible, to abort the trial once it has begun. There will no doubt be many occasions where, in the face of theretofore undisclosed evidence being offered by the state, the defense nevertheless elects to go forward. Where the evidence, in the eyes of the defense, is not particularly harmful and where otherwise the trial has gone well, astute defense counsel may for tactical reasons decide that a continuance would be contrary to his client’s interest.

On the other hand, assume that things are going badly for the defendant and that his lawyer is looking for any possible way to obtain a mistrial. In that situation, under the guidelines proposed here, the defendant will surely request a continuance. But the state would be given complete power to circumvent defendant’s maneuver by electing not to use the undisclosed evidence. It should not be overlooked that the prosecution has the power to avoid the Rule 4.06 dilemma by simply complying with the discovery request.

When a discovery request is made in a criminal case, the prosecution has a duty to be diligent in compliance. It has a continuing duty to supplement its response to discovery as new evidence becomes available. Suffice it to say that nothing in Rule 4.06 or in any circuit judge’s order granting discovery deprives the prosecution of the opportunity to go to trial and proceed vigorously with all relevant, probative evidence at its disposal. What — and all — we ought expect is that the prosecution act diligently and fairly.

IV.

Having said all of this, I concur in the judgment of the Court that John Albert Box’s sentence be vacated, his conviction reversed, and his case remanded for a new trial on all issues. At this new trial, the State, pf course, will be free to use the disputed evidence, for the defense has now had fair notice of same.

DAN M. LEE and PRATHER, JJ., join in this opinion.

      . Russell had been convicted of armed robbery and sentenced to serve a term of 20 years in the Mississippi State Penitentiary. See Russell v. State, 422 So.2d 749 (Miss.1982, unpublished opinion).

      . Davis has entered a guilty plea to the reduced charge of robbery and has received a five-year suspended sentence.

      . Rule 4.06 was amended effective October 26, 1982. Here, of course, we are concerned with the rule in the form in which it appeared at the time of trial. Nothing in the amendment alters the parts of Rule 4.06 construed here.

      . Waters was the only independent witness who placed Box with Davis and Russell before the robbery. According to Waters on the morning of the robbery Davis called and asked to borrow his car. Waters told Davis to meet him at the parking lot of Frito-Lay in Jackson, Waters’ place of employment. Davis arrived at Frito-Lay with two companions, Robyn Russell and a man Waters identified in open court as being John Albert Box. Waters delivered his car keys to Davis. The three left Waters at about 3:30 p.m. on the day of the robbery. Greenwood is less than a two-hour drive from Jackson. Waters’ car matched the description given by the Greenwood witnesses Palmertree and Parker.

      . There are a number of other Rule 4.06 cases decided by this Court. See Bracy v. State, 396 So.2d 632 (Miss.1981); Turner v. State, 415 So.2d 689 (Miss.1982); Young v. State, 420 So.2d 1055, 1059-1060 (Miss.1982); Jackson v. State, 426 So.2d 405 (Miss.1983) and Hooten v. State, 427 So.2d 1388 (Miss.1983). In those cases, unlike the case at bar and those cited above, the undisclosed evidence was not received into evidence against defendant at trial.

      . Here the trial judge should be vested with considerable discretion. He should look at the nature and form of the evidence in dispute. He should give substantial deference to the reasonable representations of counsel concerning the amount of time necessary for defendant to prepare to meet the new evidence. He should consider how much time is left in the term and, of course, the state of his trial docket. He should consider any other factors that seem relevant. If it be feasible, and consistent with the interests and policies recognized and sought to be vindicated herein, to recess the trial and continue in the next day or two before the same jury, the trial judge may so order. If this is not practical, the trial judge should declare a mistrial and schedule a new trial at the next convenient date.

      . Discovery under Rule 4.06 is a two way street. When the defendant withholds discoverable evidence which, under Rule 4.06, he was required to produce, I would urge that these same guidelines be made applicable.

      . Another familiar excuse is that the police had the information but the prosecuting attorneys were not aware of it. This will not do. When police officers have been in possession of discoverable information for nine months, the State is entitled to no consideration because the District Attorney or his assistant did not look at the file until the night before trial. The State, in the present context, is a team COnsiSting of the attorney, the law enforcement officers of the jurisdiction in which the case is brought, all other cooperating law enforcement officials — municipal, county, state or federal, the prosecution witnesses, and any other persons cooperating in the investigation and prosecution of the case. What is known or available to any one or more is deemed known by or available to the State. All are collectively “the State” for present purposes. See United States v. Deutsch, 475 F.2d 55, 57 (5th Cir.1973). When responding to requested or ordered discovery under Rule 4.06, the State, as here collectively defined, should disclose all information it has plus all information it could obtain with due diligence or upon reasonable inquiry. And, discovery responses should be supplemented when, as trial approaches, (a) the information previously furnished appears incomplete, misleading or downright incorrect or (b) the State comes into possession of new information within the scope of the discovery request as allowed. Gallion v. State, 396 So.2d 621, 622, 624 (Miss.1981).


source: Caselaw Access Project

author: DAN M. LEE, Justice,

license: Public Domain

text:
    Robert BLACK v. PEOPLES BANK AND TRUST COMPANY.
    No. 53826.
    Supreme Court of Mississippi.
    Aug. 24, 1983.

      Gene Barton, Candace Porter, Tupelo, for appellant.
    Mitchell, Eskridge, Voge, Clayton & Beasley, William M. Beasley, Tupelo, for appellee.
    Before WALKER, P.J., and DAN M. LEE and ROBERTSON, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Lee County wherein the trial judge entered a judgment non obstante veredicto for the appellee, Peoples Bank and Trust Company. The cause originated when appellant, Robert Black, filed suit alleging appellee had wrongfully refused to allow him to redeem a repossessed pickup truck. The jury found for appellant and assessed damages at $2,500. On motion the trial judge entered a judgment n.o.v. For reasons set forth below, we reverse.

On December 22, 1979, the appellant, Robert Black, purchased a pickup truck from Dye and Pierce Motors. The truck had been selected by Robert’s son, Romie, as a Christmas gift from Romie to his son, Randy. The testimony revealed that the purchase was made in Robert’s name because he had good credit and Romie did not; however, there was an agreement that they would both help to make the payments. The purchase price of the truck was $5,500 but because Robert used one of his older pickups as a trade-in the balance was $4,777.29.

After the transaction was completed at Dye and Pierce Motors, the contract for the sale of the truck was purchased by the appellee bank. Bank officers testified that they would have refused to purchase the contract and finance the sale if it had been known that Romie was responsible for making the payments. The security agreement contained a provision that default occurred when “... the holder with reasonable cause determines that its interest in the vehicle be in jeopardy, or (11) if buyer shall fail to purchase and maintain insurance coverage

The first two payments due on the loan (January and February of 1980) had not been received by February 26,1980, making both past due. On the evening of February 27, 1980, the bank sent two collection officers, Charles Richey and Mitch Waycaster, to Robert’s house to repossess the pickup. Robert testified that Richey and Waycaster demanded payment of the arrearage immediately and that he told them he did not have it that evening but would “try to get it up.” Richey and Waycaster testified that Robert told them it was Romie’s duty to make the payments and that he (Robert) was not going to. Robert then told them the truck was at Romie’s house and was being used by Randy.

The collection agents then went to Ro-mie’s house. Finding no one at home and the keys in the truck, they accomplished the repossession. Richey then phoned the bank’s vice-president in charge of collections, Lawson McClellan, and informed him that the truck had been in Romie’s possession.

Two days after the repossession Robert and Romie went to the bank with their attorney, Roy Parker. At that time they tendered the past due payments in cash. The bank accepted the payments, and it was then discovered that the truck was not insured. Robert immediately left the bank and purchased an insurance policy to cover the truck. The next business day Parker phoned McClellan to arrange the redemption but was told that the bank had accelerated the debt and that Robert would have to pay the entire amount owed before the truck would be released. Shortly thereafter, Robert received a letter from the bank which informed him that the truck had been repossessed for reasons other than the past due payments. Enclosed in the letter was a check for the amount Robert had tendered in attempting to redeem the truck. Bank officers testified that the bank’s refusal to allow the truck to be redeemed was founded on Romie’s involvement and his bad credit history. The bank also presented evidence that this decision was made after consultation with its attorney who advised that it could refuse the attempted redemption.

Other testimony revealed that Romie Black and Charles Richey had several heated arguments regarding the truck and Ro-mie’s credit rating. The evidence relating to Robert’s damages included the loss of the pickup used as a trade-in, the increased value of the repossessed truck (Randy had added fog lights and a stereo tape player), great worry, and the bank’s temporary seizure of his checking account which contained forty-three dollars. The only other testimony regarding damages was Robert’s assertion that his credit rating had been impaired; however, he admitted that he had not attempted to make any purchases on credit since the repossession. A bank officer testified that Robert’s credit was then, and had always been, good. The jury returned a verdict for Robert Black and assessed his damages at $2,500. On motion of the bank’s attorney the trial judge entered a judgment non obstante veredicto, setting aside the jury’s verdict and finding for the bank.

It must be remembered that the standard of appellate review where a judgment n.o.v. has been entered requires this Court to view the evidence in the light most favorable to the plaintiff, disregard any evidence on the part of the defendant in conflict with that favorable to the plaintiff, and if the evidence and reasonable inferences to be drawn therefrom would support a verdict for the plaintiff then such verdict must be reinstated. Gee v. Hawkins, 402 So.2d 825 (Miss.1981); Blackwell v. Dairymen, Inc., 369 So.2d 511 (Miss.1979); Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss.1975).

In this case the bank claims that it repossessed the truck because of past due payments and failure to acquire insurance; however, it asserts that it refused to allow the redemption because of its feelings of insecurity due to Romie Black’s involvement. There can be no doubt that the initial repossession was lawful and that the bank was rightfully acting to protect its interest in the security. Until the past due payments were rendered and insurance pro-curred the bank had every right to possess the vehicle. The difficulty arises only after the bank deemed itself insecure and accelerated the debt in the face of Robert Black’s tender of payment and purchase of insurance. The initial question then is the bank’s right to deem itself insecure and accelerate the debt. The statute reads:

A term providing that one party or his successor in interest may accelerate payment or performance or require collateral or additional collateral ‘‘at will” or “when he deems himself insecure” or in words of similar import shall be construed to mean that he shall have power to do so only if he in good faith believes that the prospect of payment or performance is impaired. The burden of establishing lack of good faith is on the party against whom the power has been exercised.

Miss.Code Ann. § 75-1-208 (1972). The significant term here is “good faith” and there is considerable disagreement among the states (not to mention the parties to this suit) whether good faith is measured subjectively or objectively.

The bank argues that good faith is to be measured solely by the honesty of its actions, citing Miss.Code Ann. § 75-1-201(18) (1972). That code section defines good faith as “honesty in fact” and is wholly subjective in its application. In other words, the state of mind or belief of the creditor is the measure of its good faith, regardless of the reasonableness of such state of mind or belief. This view is frequently referred to as the rule of “the pure heart and empty head” and has been adopted in a number of jurisdictions. See Van Horn v. Van De Wol, Inc., 6 Wash.App. 959, 497 P.2d 252, 61 A.L.R.3rd 241 (1972); Farmers Co-op Elevator, Inc., Duncombe v. State Bank, 236 N.W.2d 674, 18 U.C.C.R.S. 607 (Iowa 1975); and Ginn v. Citizens and Southern National Bank, 145 Ga.App. 175, 243 S.E.2d 528 (1978).

The appellant, Robert Black, argues that the appropriate measure of good faith is honesty in fact coupled with the objective reasonableness standard. This formula requires that the creditor not only believe the prospect of payment or performance is impaired, but also requires that such belief be reasonable. This is the standard embodied in the trial court’s instruction to the jury.

The subjective test of honesty has been severely criticized because of the great latitude it gives the creditor and the onerous burden of proof it imposes on the debtor. In a concurring opinion in Universal C.I.T. Credit Corporation v. Shepler, 164 Ind.App. 516, 329 N.E.2d 620 (1975), Judge Garrard said:

It is clear that the drafters of the UCC intended to promote commercial dealing and credit financing by permitting creditors to realize upon their security in doubtful situations without the necessity of a specific default.
It is, however, equally clear that a purely subjective test is subject to arbitrary abuse. It would allow a creditor to be unreasonable and place the debtor in an unjust position since the creditor might at any time call the entire debt and require the debtor to prove the non-existent state of mind of the creditor. Thus, under this interpretation, the code would permit a creditor to destroy a viable contractual relationship without requiring him to justify his actions.

329 N.E.2d 620 at 625, 626. Indeed, even Professor Gilmore, one of the drafters, writes that the code intends the reasonableness standard. “The creditor has the right to accelerate if, under all the circumstances, a reasonable man, motivated by good faith, would have done so.” 2 G. Gilmore, Security Interests in Personal Property § 43.4 at 1197 (1965).

Although this Court has not addressed the secured creditor’s standard of conduct in deeming itself insecure since Mississippi adopted the Uniform Commercial Code, decisions prior to the code hold that the reasonableness standard is applicable. Universal C.I.T. Credit Corp., et a1 v. Turner, 56 So.2d 800 (Miss.1952); Commercial Credit Co. v. Cain, 190 Miss. 866,1 So.2d 776 (1941). Cain was the first case to adopt this standard by holding that a creditor “may proceed upon such circumstances of presently apparent danger as would furnish probable cause for the belief that the security is unsafe when viewed in good faith by a man of reasonable prudence.” 190 Miss. at 871, 1 So.2d at 777. We are of the opinion that this standard is the better rule of law and hereby adopt it. Of course, the existence of good faith and the reasonableness of a creditor’s belief are questions of fact reserved for the jury.

The second question then becomes whether there is a right of redemption where the creditor repossesses because of its feelings of insecurity. The bank takes the position that there is no such right and argues that a right of redemption exists only in a default owing to the nonperformance of a duty, not where the default is occasioned by the creditor’s insecurity. The argument assumes that there is no benefit to the creditor arising from a redemption. An examination of that assumption shows it to be erroneous.

In the case of a debtor who fails to make a payment the injury to the bank is immediate, it is the loss of the amount due plus any consequential damages. However, in the case of a creditor who accelerates a debtor’s obligation because it feels insecure, there is no immediate injury, only the prospect of future injury. If the statute allows a debt- or who has caused an immediate injury to repair the harm by tendering past due obligations, why would it not permit a debtor who has not caused immediate injury to save the contract by providing some assurance of performance and thus remove the creditor’s insecurity? In either situation the acceleration clause has the same effect, upon failure to redeem, the creditor may sue on the entire obligation. The reasonableness of a creditor’s refusal to allow a redemption in the face of a debtor’s tender of assurance of performance is again a question of fact for the jury.

Further, support for this interpretation of the statute is found in its legislative history. The original Uniform Commercial Code § 9-506 allowed redemption but required the debtor to pay the entire amount due including any accelerated obligation. In adopting the Code our legislature modified it to give the debtor an opportunity to mend the breach. This was done by the addition of the following clause: “(excluding any sums that would not then be due except for an acceleration provision).... ” Miss.Code Ann. § 75-9-506 (1972).

Finally, in applying the law to the facts of this case, we must conclude that the trial court was in error when it granted the judgment non obstante veredicto. Viewing the facts in the light most favorable to the appellant, as we must, it was a jury question whether the bank’s officer acted as a “reasonable person, motivated by good faith,” in refusing to permit the redemption. For this reason, we reverse the judgment non obstante veredicto and reinstate the verdict of the jury, awarding appellant damages in the sum of $2,500.

REVERSED AND RENDERED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, PRATHER and ROBERTSON, JJ., concur.


author: BOWLING, Justice,

text:
    Johnnie WALLS and Robert Buck v. MISSISSIPPI STATE BAR.
    Misc. No. 59.
    Supreme Court of Mississippi.
    Aug. 24, 1983.

      Walker & Walker, John L. Walker, Jackson, for appellant.
    Jimmy L. Miller, Andrew J. Kilpatrick, Jr., Jackson, for appellee.
    Shirley Payne, Jackson, Miss., Jeffrey Robert White, Washington, D.C., Howard A. Specter, Pittsburgh, Pa., for amicus curiae.
    Before BROOM, ROY NOBLE LEE and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

This appeal involves a complaint against appellants, Attorney Johnnie Walls and Attorney Robert Buck, conducting their profession as a partnership. The proceedings were brought by the Mississippi State Bar under the provisions of Mississippi Code Annotated, Section 73-3-301 et seq. (Supp. 1982). The complaint alleged that on February 14, 1979, appellants, after opening a branch office in Clarksdale, Mississippi, held an “open house” contrary to the provisions of Disciplinary Rule 2-101(B) and Disciplinary Rule 2-102(A). Under these disciplinary rules the particular breach alleged was of Ethics Opinion No. 10 of the Mississippi State Bar, adopted on November 20, 1962, as follows:

Solicitation — Advertising—It is unethical and professionally improper for a lawyer to hold an “open house” at his law office.
RULE 27
The attention of the committee has been directed to the practice of some individual attorneys and law firms holding “open houses” at the opening or renovation of their offices and/or at Christmas, and/or on other special occasions. Invitations, either personally or in writing, are given to other attorneys, clients and non-clients.
Rule 27 of the Rules of Professional Conduct of the Mississippi State Bar provides that it is unprofessional for a lawyer to solicit professional employment either directly or indirectly.
The intent of a lawyer in having an “open house” is obviously to advertise the office facilities of the host and the services that are available and in effect to solicit and encourage the guests to utilize his services.
In the opinion of the committee this constitutes a form of advertising and solicitation of business and is highly improper and unprofessional.
This ruling does not apply where all of the local lawyers only and no other persons are invited. (Emphasis ours).

The original State Bar Petition alleged that 500 invitations to the “open house” were ordered and distributed. The invitation reads as follows:

WALLS AND BUCK, LTD.
Attorneys at Law
A Professional Association
819 Main Street
P.O. Box 634
Greenville, Mississippi 38701
are pleased to announce the opening of their second office in Clarksdale, Mississippi
220 East Second Street
P.Ó. Box 1071
Clarksdale, Mississippi 38614
Phone (601) 627-4714
You are cordially invited to our Open House in Clarksdale on February 14, 1979 between the hours of 1 and 5.

Appellants answered the allegations of the petition primarily contending that their limited activities in connection with the allegations of the petition were after the opinion rendered by the United States Supreme Court on June 27,1977, in Bates v. Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977). Appellants alleged that their limited open house which occurred approximately two years after Bates, supra, was fully authorized by that opinion which resulted in many changes regarding permissible activities of attorneys in relation to advertising on a limited scale. There is no need to discuss the opinion in Bates as in reality, it does not have relevancy to the issues here, except as hereinafter discussed.

Although the complaint was originally filed by an individual prior to May 1979, a hearing was not had by the Complaints Tribunal until June 29,1981, more than two years after the original complaint.

At the hearing the attorney for the State Bar introduced the petition with its exhibits and a stipulation between the parties and rested the bar association case. The stipulation stated that the bar association “at no time intended to say in any of its pleadings that there was an attempt by either one of the respondents to actually solicit the business of any person who may have attended the open house and does not intend to allege it or attempt to prove it today.”

The testimony of appellants consisted chiefly of their explanation regarding the alleged objectionable action. These attorneys had their principal law offices in Greenville, Mississippi. One of the attorneys was reared in Coahoma County, the county seat of which is Clarksdale. They decided to open a branch office there. This was done and the hereinbefore set out invitation was distributed according to appellants to not more than around one hundred persons. The testimony was undisputed that only about fifty people attended the function and many of these were children; that there were never more than twenty persons at the office at any one time. They reiterated, as set out in the bar’s stipulation, that there was definitely no solicitation of any kind. They merely wanted their friends, relatives and former clients to be greeted by them at their new branch office. This testimony was undisputed, a situation that is very material as hereinafter discussed.

After a very short hearing, the complaints tribunal made its findings and entered its order on February 5, 1982. The opinion and order was based solely on the hereinbefore quoted Ethics Opinion No. 10.

Of paramount importance are some of this Court’s findings in the recent case of Levi and Denham v. Mississippi State Bar, 436 So.2d 781 (Miss.1983). There we stated that bar disciplinary proceedings are inescapably “adversary proceedings of a quasi-criminal nature” and that “[a] standard of proof higher than the ordinary ‘beyond a preponderance of the evidence’ ” is required. We held that in such proceeding the State Bar has the burden of proving in this Court by clear and convincing evidence each and every evidentiary and ultimate fact necessary to support a judgment that the attorney or attorneys should be disciplined or disbarred. We further held that the statutes require this Court to consider the cause de novo.

As hereinbefore stated, the petition of the bar association merely set out the two disciplinary rules and the ethics opinion under those rules alleged to have been violated by appellants. It was stipulated that no solicitation of any kind was involved on the part of the appellants. This was the meager evidence upon which appellee attempted to prove a violation by “a standard of proof higher than the ordinary and beyond a preponderance of the evidence” and by which it attempted to prove its cause “by clear and convincing evidence.”

The testimony of appellants stands undisputed in this record. It should be clear therefore without further discussion that the State Bar Association did not meet its burden of proof. It offered no proof other than the mere fact of the “open house”. We note in Ethics Opinion No. 10 that the reason for the opinion was “the intent of a lawyer in having an ‘open house’ is obviously to advertise the office facilities of the host and the services that are available and in effect to solicit and encourage the guests to utilize his services.” The bar association stipulated itself “out of court” by stating that appellants did not “solicit” in any manner. Therefore, for this reason alone, the complaints tribunal was in error in ordering appellants reprimanded.

Further, in compliance with Bates, supra, which was decided in June of 1977, the bar association finally got around to filing a petition before this Court on January 24, 1988, requesting amendments to the Canons of Ethics regarding advertising as dictated in Bates. This Court’s order sustaining the bar association’s petition was issued on March 16, 1983, approximately five months prior to the submission of the present cause to the Court. Various amendments were requested by the bar regarding the Canons of Ethics, including those under which the petition sub judice was filed, viz. Disciplinary Rule 2-101(B) and 2-102(A). Pursuant to the amendments it was requested that Ethics Opinion No. 10 be deleted. This Court included that deletion in its order, as requested. We have heretofore seen that Ethics Opinion No. 10 was stated as the sole reason for reprimanding appellants. We have held when cases are in the bosom of this Court and there is involved a statute that is modified prior to a final decision of this Court, we shall take that modification into consideration. Oliphant v. Carthage Bank, 224 Miss. 386, 80 So.2d 63 (1955); Stone v. Independent Linen Service Co., 212 Miss. 580, 55 So.2d 165 (1951); Stone v. McKay Plumbing Co., 200 Miss. 792, 26 So.2d 349 (1946); and Deposit Guaranty Bank & Trust Co. v. Williams, 193 Miss. 432, 9 So.2d 638 (1942).

Further in considering the matter de novo, as we are required to do, we may take judicial notice of certain activities of bar members which have either been overlooked subsequent to 1962 or no one has seen fit to complain. We can take judicial notice that many law firms have open houses at their offices and elsewhere during the Christmas holidays and at other times. In a metropolitan area, we certainly know that “all of the local lawyers only” as set out in the antiquated Ethics Opinion No. 10, have not been invited to these festive occasions. We also may take judicial notice that many firms that specialize in certain areas of law have had open houses for many, many years, including since 1962, and have invited attorneys who do not so specialize in that particular area and occasionally need specialized services.

We find that it was error for the complaints tribunal to have entered its order directing that appellants be reprimanded. The cause is therefore reversed, rendered and the petition dismissed with prejudice.

REVERSED AND RENDERED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, HAWKINS, DAN M. LEE and ROBERTSON, JJ., concur.

PRATHER, J., not participating.


text:
    Clyde PARKER & Johnny Parker, d/b/a Parker’s Jewelry v. Tom BAILEY.
    No. 54432.
    Supreme Court of Mississippi.
    Aug. 31, 1983.
    J. Kennedy Turner, Philadelphia, for appellant.
    Alford, Thomas & Kilgore, Donald L. Kil-gore, Philadelphia, for appellee.
   Appeal from Circuit Court, Neshoba County; Marcus D. Gordon, Judge.

Before BROOM, P.J., and DAN M. LEE and PRATHER, JJ.

AFFIRMED.


text:
    Emanuel ROBINSON v. Alva DILLON, Executor of the Estate of Beatrice Pickens, Deceased.
    No. 54421.
    Supreme Court of Mississippi.
    Aug. 31, 1983.
    Robert S. Reeves, McComb, for appellant.
    C. Ashley Atkinson, McComb, for appel-lee.
   Appeal from Chancery Court, Pike County; Bert H. Jones, Chancellor.

Before WALKER, P.J., and ROY NOBLE LEE and HAWKINS, JJ.

AFFIRMED.


text:
    Stevens R. FRANKS v. STATE of Mississippi.
    No. 54417.
    Supreme Court of Mississippi.
    Aug. 31, 1983.
    J.W. Kellum, Sumner, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Tallahatchie County; Andrew C. Baker, Judge.

Before WALKER, P.J. and ROY NOBLE LEE and HAWKINS, JJ.

AFFIRMED.


text:
    Earl PITTS, Jr., Executor of Estate of Fountain Erald Pitts, a/d/a F.E. Pitts, Dec’d v. Pearline Pitts WELCH, Lola Pitts Wages & Audrey Pitts Reeder.
    No. 54409.
    Supreme Court of Mississippi.
    Aug. 31, 1983.
    Mauldin, Sneed & Mauldin, William L. Sneed, Pontotoc, for appellant.
    Douglas M. Wright, Tupelo, for appellees.
   Appeal from Chancery Court, Pontotoc County; George F. Adams, Chancellor.

Before WALKER, P.J., and ROY NOBLE LEE and HAWKINS, JJ.

AFFIRMED.


text:
    Roy FORNETT v. STATE of Mississippi.
    No. 54446.
    Supreme Court of Mississippi.
    Aug. 31, 1983.
    Roy Fornett, pro se.
   Appeal from Circuit Court, Jackson County; Clinton E. Lockard, Judge.

Bill Allain, Atty. Gen. by Bill Patterson, Sp. Asst. Atty. Gen., Jackson, for appellee,

Before PATTERSON, C.J., and BOWLING and ROBERTSON, JJ.

AFFIRMED.


author: PRATHER, Justice,

text:
    Winford DORROUGH v. STATE of Mississippi.
    No. 54383.
    Supreme Court of Mississippi.
    Aug. 31, 1983.
    Kenneth C. O’Neal, Grenada, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

Winford Dorrough was convicted of aggravated assault on a police officer and received a life imprisonment sentence because of enhanced punishment as an habitual offender. His appeal here from the Circuit Court of Grenada County assigns only one error. We affirm the conviction.

The question for decision is whether the trial court committed reversible error by overruling a defense motion for a new trial because one juror failed to respond to a question during voir dire examination. The trial court held the question was ambiguous.

Defense co-counsel for Dorrough were Kenny O’Neal and Leon Provine. Prospective jurors had answered an information card for the court, which card asked “Have you ever been an accused, complainant, or witness in a criminal case?” The juror in question, Bobby McNeer, answered “No”.

O’Neal conducted voir dire examination for the defense. No record was made of voir dire questioning at the time of its occurrence. Recollections of questions asked were later testified to on the motion for a new trial. O’Neal testified that he asked if any juror had ever been “the victim of an assault and battery or attack.” McNeer did not respond to this question and was accepted as a juror.

After the conviction, Attorney Provine recalled that he had represented another defendant, Richard Bailey, on an aggravated assault charge in which McNeer was the victim some three years before. Bailey, who was charged with shooting into a vehicle occupied by Bobby McNeer, pleaded guilty; therefore, McNeer did not testify. Upon verifying his recollection of this prior case, co-counsel Provine and O’Neal filed a motion for a new trial based upon newly discovered evidence. Attorneys Provine and O’Neal, McNeer, and three other jurors testified as to their recollection of voir dire questions. McNeer recalled O’Neal’s question about “assault and battery,” and his understanding of the question was that he meant “bodily harm.” Since McNeer wasn’t “harmed,” he did not reply to the question. He further said that the Bailey incident had no bearing on his decision in Dorrough’s case.

The trial judge found that the question as asked was ambiguous to the panel. Further, he found that the juror McNeer considered the question and determined that it did not apply. No evidence of evasiveness or untruthfulness by McNeer was presented, and the court further found no apparent prejudice to the defendant.

For resolution of this question, our decision in Odom v. State, 355 So.2d 1381 (Miss.1978) presents our guideline. Where a prospective juror in a criminal case fails to respond to a question by defense counsel on voir dire, the Court should determine whether the question was (1) relevant to the voir dire examination, (2) whether it was unambiguous, and (3) whether the jur- or had substantial knowledge of the information sought to be elicited. If all answers to the above questions are affirmative, then the court determines if prejudice to the defendant in selecting the jury could be inferred from juror’s failure to respond. This test has been applied in Laney v. State, 421 So.2d 1216 (Miss.1982), Atkinson v. State, 371 So.2d 869 (Miss.1979), Dase v. State, 356 So.2d 1179 (Miss.1978), Brooks v. State, 360 So.2d 704 (Miss.1978).

Applying this test to the case sub judice, the trial judge found affirmatively two of the three guidelines. However, he found that the question was ambiguous to the jury panel. The witnesses’ answers showed variances in their recall of the exact wording of the question and their understanding of its meaning. His finding states that the jurors understood the question to relate to a situation without personal injury. Although he recognized the legal definition of the words “assault, battery, and attack” as technical terms of the legal profession, he applied these terms “on the basis of what the questions meant to the person to whom it was posed.”

Reference to the record on the motion for a new trial supports his conclusion. This Court has previously held that it will not set aside a factfinder’s decision, in this instance, the judge, unless it is clear that the decision is the result of prejudice, bias, or fraud, or that it is manifestly against the weight of the evidence. Marr v. State, 248 Miss. 281, 159 So.2d 167 (1963), Clanton v. State, 49 So.2d 267 (Miss.1950). The finding that an ambiguous question was asked supports his decision to deny a new trial. Additionally, however, the Court went further to find no prejudice to the defendant in light of McNeer’s response that his decision was unaffected by his personal incident. We find no error in this result and affirm.

Under the supervisory powers of this Court, we suggest that the trial courts require, as a minimum, a recording of all facets of a criminal trial, especially the voir dire examination and closing arguments. As here, where errors are assigned in a portion of the record not accurately preserved for appeal, this Court and the defendant are disadvantaged on review. On appeal, counsel may subsequently state that part of the reporter’s transcript of the testimony and evidence that they desire to be transcribed, or omitted, where not in issue for review. Miss.Code Ann. § 9-13-33(3) (1972).

We affirm.

AFFIRMED.

PATTERSON, C.J., ' WALKER and BROOM, P. JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and ROBERTSON, JJ., concur.


author: ROY NOBLE LEE, Justice, ROBERTSON, Justice,

text:
    Carol E. PENNINGTON v. STATE of Mississippi.
    No. 53867.
    Supreme Court of Mississippi.
    Aug. 31, 1983.

      Billy J. Jordan, T. Lynn Woolbright, Columbus, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before BROOM, P.J., and ROY NOBLE LEE and BOWLING, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Carol E. Pennington was found guilty in the Circuit Court of Lowndes County, Honorable Harvey Buck, presiding, on a charge of capital murder, and was sentenced to life imprisonment in custody of the Mississippi Department of Corrections. She has appealed here and assigns the following errors in the trial below:

(1) The lower court erred in refusing to allow defendant’s counsel to offer proof outside the presence of the jury, regarding the excluded fingerprint demonstration and testimony offered by witness, Robert Butler.
(2) The lower court erred in overruling defendant’s motion for mistrial based upon innuendo of the State that statements of the State’s key witnesses had been verified by Officer Jackie Persons through the administration of polygraph examinations.
(3)The lower court erred in overruling defendant’s motion to suppress oral statements made by defendant to police officers John Peavey and Harold Malone.

About 3 a.m. on June 11, 1981, appellant went by the home of Carrie Butler and asked her to go accompany appellant to the Checkmate Lounge. Butler agreed, and they went to the lounge where appellant met and began dancing with one J.D. Walker. About 5 a.m., Butler decided she needed to go home and Walker and appellant left with her. They went to appellant’s car, but it failed to start and Walker called a taxicab. The driver took them to their destination, Walker paid the fare of $2.35, and appellant started cursing the taxicab driver, telling him it was a rip-off. She began to wrestle with him over a cigar box in which the taxi driver kept his money. During the altercation, appellant discharged her pistol four times, which resulted in the taxi driver’s death.

When the taxi driver failed to answer the taxicab dispatcher, a search was started for him and the police were called. The taxi driver was found slumped over the steering wheel near appellant’s apartment. Officers inquired in the area of residents as to whether they had heard or seen anything, and, in the investigation, talked with appellant. At that time, the officers apparently did not realize the taxi driver was dead.

Appellant did not testify, and only one witness, Robert Butler, a former policeman and sheriff’s department employee, was called by her. He attempted to demonstrate how easily fingerprints could be taken from a cigar box.

I.

It is first contended by appellant that she was not permitted to make a record of proffered testimony and a demonstration of how easily fingerprints could be lifted from a cigar box. The purpose of this evidence was to show that the police could have removed fingerprints from the cigar box which contained the taxi driver’s money, if they had been diligent. Testimony involving this point follows:

Q. Do you have the ability and the expertise to develop a fingerprint from this cigar box?
A. Yes, sir, I do.
MR. MONTGOMERY:
Your Honor, we would object to that question; that’s a legal conclusion to be determined by the Court, not this witness.
MR. JORDAN:
Your Honor—
THE COURT:
Sustained.
MR. JORDAN:
Your Honor, we — we would move that out of the presence of the jury to have this done for the Court’s benefit.
THE COURT:
Counsel, I don’t think there’s been any testimony that a print could not be moved from that material. I don’t know what you’re trying to rebut.
MR. JORDAN:
Your Honor, I think the testimony was that they didn’t have the equipment that was necessary to so remove same, and we want to show what a simple process it is.
MR. HOWARD:
Your Honor, we’d object; this box has no relationship to the box that was in the cab; this undoubtedly is a new box that they just produced here; it wasn’t furnished during discovery and we would object to the—
THE COURT:
All right, the objection will be sustained.
MR. JORDAN:
And we’d move for a mistrial, Your Honor.
THE COURT:
Overruled.

Appellant argues that under Jones v. State, 306 So.2d 57 (Miss.1975), Kidd v. State, 258 So.2d 423 (Miss.1975), and Hitt v. State, 217 Miss. 61, 63 So.2d 665 (1953), the lower court erred in refusing to permit her counsel to make a record of the excluded demonstration and testimony of the witness. The trial judge always should permit attorneys to make a record of objectionable testimony or to make a proffer of same in order tht this Court may know whether it is relevant or material. Although the lower court here did not permit appellant’s counsel to make a record and no real proffer was made by dictating into the record what the appellant desired to show by the testimony and by the evidence, appellant’s counsel did state that the purpose of the evidence was to show what a simple process it is to remove a latent fingerprint from a cigar box. That officially indicates to this Court what was the purpose of the evidence.

Trial and appellate courts are knowledgeable about the process of removing latent fingerprints from objects. From this record we are able to determine whether or not exclusion of such evidence constituted error. There was direct testimony from the witnesses Butler and Walker that appellant grabbed the cigar box and was trying to wrestle it away from the taxi driver. The appellant does not argue that by failing to remove fingerprints from the cigar box, the State suppressed possible exculpatory evidence in violation of her constitutional rights as was contended in Campbell v. State, 437 So.2d 3 (Miss.1983). Under the facts here, we are of the opinion that it was not material to demonstrate how fingerprints could have been removed from a different cigar box to determine whether or not they were the appellant’s.

II.

The appellant next contends that the lower court erred in overruling her motion for a mistrial because in questioning Officer Jackie Persons, the prosecuting attorney attempted to bolster the testimony of Butler and Walker by referring to a polygraph examination. That testimony follows:

MR. HOWARD:
Q. I believe you testified to extent about your use of the — or training in the use of the polygraph, is that correct?
A. Yes, sir.
Q. And I believe you arrested one defendant in this case, is that right?
A. Yes, sir.
Q. And who was that defendant?
A. Carol Pennington.
Q. And I believe J.D. Walker and Carrie Butler, did you arrest those individuals?
A. No, sir.
Q. Are they witnesses in this case?
A. Yes, sir, they are.
Q. Have they ever been arrested in this case?
A. No, sir.
Q. Did you verify the statements that they gave you concerning this case? (No audible answer)
Q. You can answer. Did you verify the statements that they gave you concerning this case?
A. As much as possible, yes, sir.
MR. JORDAN:
Your Honor, at this time the defense moves for a mistrial based upon the — the innuendo District Attorney’s office has placed in this jury’s mind. First of all, he brought up the term polygraph, and then he brought up verification, the next question, and the answer was yes, sir. We submit that it is an automatic inference intentionally placed to place in the minds of these jurors that this detective ran these witnesses on a polygraph test, and we submit we’re entitled to a mistrial.
THE COURT:
Counsel, you sat there and let him answer and made no objection. Now if you had made an objection I could have ruled on it at that time. You sat right there and let him answer this question without making any objection, and then after he answered you asked for a mistrial.
MR. JORDAN:
Your Honor, I didn’t know how he was going to answer.
THE COURT:
Well the motion for a mistrial is overruled.
MR. JORDAN:
We re-new our motion.
MR. HOWARD:
Your Honor, I didn’t ask him anything about a — whether he ran these people, I’m sorry—
THE COURT:
Counsel, I’ve heard all I want to hear about it. I’ve already ruled on his objection and motion.
MR. HOWARD:
Yes, your Honor, I apologize.

The taking of a polygraph examination and the results thereof are not admissible in evidence. Jordan v. State, 365 So.2d 1198 (Miss.1978); Harrison v. State, 307 So.2d 557 (Miss.1975); Mattox v. State, 240 Miss. 544, 128 So.2d 368 (1961). In the case sub judice, there was no objection to the questions at the time they were asked. When the trial judge stated to appellant’s attorney that he had not interposed an objection, the attorney responded, “Your Hon- or, I didn’t know how he was going to answer.”

An attorney may not refrain from objecting to a question, thinking that the answer might be favorable to him, and, when it is unfavorable, object and ask for a mistrial. Also, the answer of the officer was vague and not direct, and, in our opinion, was not prejudicial to the appellant.

III.

The appellant last contends that the lower court erred in overruling appellant’s motion to suppress oral statements made by her to police officers John Peavey and Harold Malone.

The officers checked several houses in the immediate area where the taxicab was discovered to determine whether or not anyone had seen or heard anything which might aid in the investigation. Officers Peavey and Malone went to the house of Carol Pennington, the appellant, and she was asked routine questions such as her name, age and address. She refused to state her age, and told the officers that her address could be seen from the mailbox outside. She was dressed in a nightgown and said she had neither seen nor heard anything with reference to the taxicab.

The appellant was not under arrest or in custodial detention at the time the questions were asked her. The interrogation was clearly a part of an on-the-scene investigation and is excepted from the Miranda rule. Yazzie v. State, 366 So.2d 240 (Miss.1979); Ford v. State, 226 So.2d 378 (Miss.1969); Nevels v. State, 216 So.2d 529 (Miss.1968). There is no merit in this contention.

The judgment of the lower court is affirmed.

AFFIRMED.

AS TO SECTIONS I AND III: PATTERSON, C.J., WALKER and BROOM, P. JJ., and BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.

AS TO SECTION II: PATTERSON, C.J., WALKER and BROOM, P. JJ., and BOWLING and PRATHER, JJ., concur.

ROBERTSON, BOWLING, HAWKINS and DAN M. LEE, JJ., specially concur.

ROBERTSON, Justice,

specially concurring:

I.

It is a familiar aphorism that it takes a judge approximately six months after going on the bench to forget completely what it was like to practice law. I have just passed that temporal line of demarcation, and as I look back I already see substantial evidence which would support my conviction of that offense. Section II of today’s majority opinion is additional evidence toward the conviction of my colleagues.

To preserve an error for appeal, more and more, the Court is imposing technical requirements the quickest witted lawyer would have difficulty complying with. In Holifield v. State, 431 So.2d 929 (Miss.1983), for example, we were hypertechnical in our enforcement of the rule that, before an assignment of error predicated upon the giving of a jury instruction could be considered on appeal, objection must have been made in the trial court “stating the particular ground or grounds for such objection”. I plead guilty, for I joined in the Holifield opinion. Upon reflection, I think Justices Hawkins, Bowling and Dan M.- Lee were closer to the mark when they wrote, “The majority makes a technical and unrealistic demand on trial attorneys as to the adequacy of an objection.” 431 So.2d at 931. Even if the technical legal correctness of their position is a matter on which reasonable minds may differ, the Holifield dissenters were indisputably right in fact. A realistic appreciation of those inevitable human frailties of even the most competent trial lawyers faced with the tensions and pressures of trial simply must undergird our rules of practice.

Put in historical context I find what we are doing all the more disturbing. For years our courts were governed by rigid rules of pleading and practice. One false step by the pleader and his client’s claim was lost forever. If the proof varied from the cause of action pled, that too could be fatal. We endured such foolishness as the two witness rule, the necessity for waiving answer under oath in chancery, and so much more.

In the past two decades our rules of practice have gradually undergone long overdue corrective surgery. The primary impetus for these reforms has been that ultimately irrepressible imperative of substantial justice, coupled with a realistic recognition of what it is like to practice law. One by one, needless technicalities have been discarded. I had thought we were approaching the point where lawyer and litigant could concentrate on the merits of the case, without having their attention constantly diverted by a procedural mine field. I fear my optimism has been premature.

In a very real sense, this case shows that the cancer has not been uprooted at all. It has simply changed its home. It has come to rest in the appellate process. More and more, appeals to this Court are marked by controversies over the preservation of error, not the justice of the case. Procedural bars are invoked here as demurrers were once filed in the trial courts. We have merely changed the location of the mine field— with the familiar results: Needless consumption of judicial resources hearings and deciding technical procedural questions, harsh substantive results resulting from the bobbles of less than nimble counsel.

In Section II of the majority opinion here we continue apace in our imposition of unrealistic requirements for preservation of error. The majority holds that objection should have been made the first time the word “polygraph” was mentioned. I have no doubt that there are many trial judges in this state who, had an objection been made at that point, would have held that it was premature. Construing the trial colloquy in favor of the majority, it seems to me at most that the state’s attorney was laying a predicate for an impermissible question. Even if defense counsel’s performance at this point was not textbook perfect, it was certainly adequate to preserve the point for appeal.

The lawyer in the course of trial has a million things on his mind. He may simultaneously be listening to the witness who is testifying, taking notes, fielding a whispered question from his client, weighing possible lines of cross-examination, worrying about his (unsubpoenaed) witness who is late showing up, watching the jurors for their visceral reactions, recalling the testimony of prior witnesses for consistency with what the current witness is saying, considering the witness’ prior written statement or deposition — if he is doing his job, there are at least a dozen other thoughts racing through his mind.

In this context, why are we demanding such perfection of the trial lawyer? When counsel opposite hints at an impermissible line of proof, we here require an instantaneous objection. Not only that, we require, again instantaneously, an articulation of each and every ground on which the proposed evidence might not be admissible. Why? We did the same in the Holifield case. We seem on the verge of requiring that when objections are made, the lawyer be as well versed on the point of law as we would expect him to be here — after full opportunity to brief the questions, to review the brief of counsel opposite, and to prepare for argument.

We are demanding that lawyers in a second or two at trial do that which from observed experience we know they frequently fail to do in oral argument before this Court when they have had a year or more to prepare.

What of the situation at trial where— with a million other things on his mind— the lawyer hears an impermissible question asked? He instinctively objects, but for the moment his mind is blank as to the possible basis for the objection. Quite likely the trial judge will be fully aware of one or more grounds on which the objection might be sustained. And surely most trial judges would rule immediately though no grounds be stated. It is his duty to do precisely that.

I fear that by this decision, by Holifield and others we are undermining this salutary practice. We are beginning to lay the groundwork for the case where the trial judge, faced with an inarticulate objection to inadmissible evidence, and even where he knows why the evidence is inadmissible, may nevertheless overrule the objection and not be held in error by this Court on appeal.

A trial is not a chess game. It is a search for justice, or perhaps more modestly, for acceptable dispute resolution. The single dominant trend in judicial reform in the past century has been the elimination of needless formalities and technicalities in trial procedure. Yet our rules on preservation of error have become as hypertechnical, as conducive to mischief and injustice, as were the rules of pleadings of several decades ago.

I have participated in many lawsuits as a trial lawyer. I am confident that the other members of this Court have done likewise, and I know that some members of this Court have tried many more cases than have I. We disserve justice and the bar when we forget what it was like to practice law.

II.

As I read the colloquy set forth in Section II of the Court’s opinion, I can see no reversible error, even had a perfect contemporaneous objection been made. Defense counsel reads much more into this colloquy than do I. That someone may or may not have been given a polygraph examination is hardly made apparent, directly or by innuendo, from this colloquy. At most a cautionary instruction to the jury would have been appropriate — although that would merely have served the purpose of highlighting in the jury’s mind the idea of a polygraph examination. It is inconceivable to me that what happened at trial, as outlined in Section II of the Court’s opinion, should be considered grounds for a mistrial. For this reason, and not because of any failure to make a contemporaneous objection, I would affirm.

BOWLING, HAWKINS and DAN M. LEE, JJ., join in this opinion.

      . Consider the case of the defense counsel in a serious criminal case come jury instruction time. The state offers a particular instruction. Defense counsel objects, stating perhaps inart-fully several state law grounds. Suppose two weeks earlier the Supreme Court of the United States has handed down a decision which makes the instruction clearly erroneous — except that defense counsel does not subscribe to U.S. Law Week and doesn’t know of the new ruling. Surely we would not refuse to reverse in such a case because defense counsel did not state the proper ground for his objection to the instruction.


author: ROY NOBLE LEE, Justice,

text:
    Barbara Swartzfager CUNLIFFE v. Paul Gee SWARTZFAGER, Jr.
    No. 53880.
    Supreme Court of Mississippi.
    Sept. 7, 1983.

      R. Conner McAllister, Jackson, for appellant.
    Thomas L. Casey, Laurel, for appellee.
    Before WALKER, P.J., and ROY NOBLE LEE and HAWKINS, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Barbara Swartzfager Cunliffe filed a contempt proceeding in the Chancery Court of the Second Judicial District of Jones County, Mississippi, against Paul Gee Swartzfager, Jr., for failure to pay child support. At the conclusion of all the evidence, the lower court, Honorable J. Shannon Clark, presiding, entered an order denying the relief sought and dismissed the petition. Mrs. Cunliffe has appealed and assigns three errors in the trial below. •

The parties were divorced in 1970 by the Circuit Court of Dade County, Miami, Florida. Appellant was granted custody of the two minor children of the marriage, Helen Elizabeth Swartzfager, born November 5, 1962, and Paul Gee Swartzfager, III, born May 5, 1964. Appellee was permitted visitation rights with the children and was required to pay monthly support for them.

In March, 1975, appellant remarried and her husband was sent to Campinas, Brazil, as an executive of the B.F. Goodrich Company. The children spent part of the summer in 1975 with appellee, and then went back to Laurel and spent Christmas of 1975 with appellee. He decided not to return the children to their mother in Brazil, which resulted in appellant’s spiriting away the boy, Paul Gee Swartzfager, III, after finding him at a movie theater in Laurel. Shortly prior thereto, appellee filed a petition to modify the child custody decree entered by the Florida court, seeking custody of the children in himself. Preliminary motions were filed by the attorney for appellant; she entered her appearance; the court heard the matter and granted custody of Helen Elizabeth Swartzfager to appellee and custody of Paul Gee Swartzfager, III, to appellant; and ordered appellee to pay $200.00 per month for the support of the boy.

The record reveals that for a period of approximately five years there existed strife and bitterness between the parties. Appellant lived during that time in Brazil and Bogota, Columbia, but, at intervals in the summers, she, her husband and the boy would visit in Florida where the Cunliffes owned a condominium. Appellant contended that appellee refused to pay a substantial amount of child support, while appellee countered that he did not know where appellant resided, that she concealed her whereabouts and address from him, and that he was not permitted to communicate with or see his son. Suffice it to say, in this regrettable situation, appellee did not see the boy until he attained the age of eighteen, and appellant did not see her daughter for the same period of time. Helen Swartz-fager did visit her mother in Bogota, Columbia, during Christmas of 1979, when she became eighteen years old.

The lower court held that appellee was not required to pay the support ordered for Paul Gee Swartzfager, III, and was forgiven the unpaid amounts due to the fact that he found appellant had concealed the boy and had prevented appellee from exercising visitation rights with him. Appellee admitted at the trial on cross-examination that he was in arrears for child support in the sum of $7,140.00 as charged by the appellant. The lower court also declined to allow appellant attorney’s fees and medical bills.

I.-II.

Did the chancellor commit manifest error in ordering the appellant to produce the minor child of the parties as a material witness for the appellee?

Did the chancellor commit manifest error in assigning more weight to the testimony of appellee than to the testimony of appellant when the testimony of appellant provided the court with more consistent and credible evidence?

The lower court ordered appellant to have the child in court for the contempt hearing. She appeared without him but produced a note purportedly written by the boy to the effect that he did not want to come to court and declined to do so. Appel-lee filed a motion to dismiss because of failure to perform the order. The court took same under advisement and later overruled it.

The appellant next contends that the lower court erred in assigning more weight to the testimony of appellee than to that of appellant and that the testimony of appellant was more consistent and more credible.

We have examined the record pertaining to those two assignments of error and are of the opinion that there is no merit in them.

III.

Did the chancellor commit manifest error in failing to award appellant past-due child support, past-due medical expenses, and attorney’s fees?

The real question presented to this Court is whether or not the lower court erred in declining to enforce the provisions of the former decree fixing child support for Paul Gee Swartzfager, III, at $200.00 per month, in failing to find appellee in contempt for not paying the support and medical expenses, and in dismissing the petition.

The appellee cites Cole v. Hood, 371 So.2d 861 (Miss.1979), relied upon by the lower court in denying relief. In that case, the ex-wife and her new husband, on cross-examination, admitted that they had purposely concealed the child from the father, who had no knowledge of their whereabouts and did everything in his power to locate them. That case is distinguished from the facts of the present case. Here, the appellant declined to give appellee their exact address and wanted to communicate with .him through her relatives. There was evidence of telephone calls to appellee by the boy. Appellee knew where appellant’s relatives were, and it is indicated that he knew generally where his former wife and child resided.

Under the facts, the appellee could have taken proper steps to relieve himself from the support payments. The court probably would have directed him what, if anything, should be done toward discontinuing the support payments. The court could have entered an order relieving him from making the payments, or holding the payments in abeyance, or other alternatives.

The lower court entered an order in 1976 for the payment of the support and, under the facts of this case, we think that the court had no authority to relieve appellant from payment of accrued child support. In Howard v. Howard, 191 So.2d 528 (Miss.1966), which involved a contempt situation for nonpayment of support, the chancellor found appellant was not in contempt for his failure to pay the amounts due but adjudicated the amounts in arrears. The Court held that, as the payments became due, they became fixed and constituted a judgment against the appellant. See also Duncan v. Duncan, 417 So.2d 908 (Miss.1982).

We hold that the appellee here was not in contempt of the court for failure to make the payments but that, since the payments had become fixed as they were due, the appellant is entitled to a judgment against the appellee in the sum of $7,140.00. We further hold that, inasmuch as the record does not indicate appellee was furnished with medical bills or willfully declined to carry medical insurance covering the child, the chancellor should be affirmed on that issue. The chancellor is also affirmed on his denial of attorney’s fees under the peculiar facts of this case where the appellant spirited away the child of the parties from Laurel, Mississippi, and failed to seek the court’s enforcement of the provisions of the decree until after the boy became eighteen years of age, at which age he was permitted to reside with his father.

AFFIRMED IN PART, REVERSED AND RENDERED IN PART.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and BOWLING, HAWKINS, PRATHER and ROBERTSON, JJ., concur.

DAN M. LEE, J., dissents.

      . Apparently, she was afraid appellee would come to her home and get the child as she had done at the movie theater in Laurel.


author: BROOM, Presiding Justice,

text:
    Mary Ezell COWAN, et al. v. FORD MOTOR COMPANY.
    No. 54983.
    Supreme Court of Mississippi.
    Sept. 7, 1983.
    Melvin & Melvin, Leonard B. Melvin, Jr., Sarah L. Entrekin, Laurel, for appellants.

      Watkins & Eager, H.H. Whitworth, Michael W. Ulmer, Jackson, for appellee.
    Before BROOM, P.J., and DAN M. LEE and PRATHER, JJ.
   BROOM, Presiding Justice,

for the court:

Certified to us by the United States Court of Appeals for the Fifth Circuit is this cause, asking us to decide the following question:

May a nonresident plaintiff utilize Mississippi’s courts to sue a foreign corporation qualified to do business and actually doing business in Mississippi for an accident which occurred outside Mississippi and which had no relation to the foreign corporation’s business activities in Mississippi when the statute of limitations of the state in which the plaintiff resides and in which the accident occurred has barred the claim in that state?

The matter is a diversity tort suit, filed in Federal District Court in the Southern District of Mississippi, arising from a fatal accident which occurred in the state of Texas. None of the individual parties reside in Mississippi but the defendant, Ford Motor Company, is expressly authorized to do business in Mississippi, actually does business in this state, and has in Mississippi for service of process a designated agent on whom process was served in this cause. The Federal District Court declined to assume jurisdiction and dismissed the case. On appeal, the Fifth Circuit held that under Mississippi law our state courts would have jurisdiction over the cause of action. Cowan v. Ford Motor Co., 694 F.2d 104 (5th Cir.1982). On petition for rehearing, Ford has asked the Fifth Circuit to reconsider its decision, and before us for construction is Mississippi Code Annotated § 15-1-65 (1972), which provides as follows:

§ 15-1-65. Action barred in another jurisdiction barred here.
When a cause of action has accrued in some other state or in a foreign country, and by the law of such state or country, or of some other state and country where the defendant has resided before he resided in this state, an action thereon cannot be maintained by reason of lapse of time, then no action thereon shall be maintained in this state.

In certifying the question to us, the Fifth Circuit notes that “this question was addressed in the earlier part of this century, see Louisiana & Mississippi R. Transfer Co. v. Long, 159 Miss. 654, 131 So. 84 (1930),

We think that in the present case we should decline to rule on the question certified to us for the following reasons: (1) the chief issue which we are asked to rule upon involves the construction of a statute of Mississippi, which we have previously ruled upon; and (2) the case before us does not involve any matter of great public interest presenting any unique or unusual legal problem not already decided by this Court. Accordingly, we respectfully decline to rule upon the question presented. Blanchard v. Engine and Gas Compressor Services, Inc., 371 So.2d 265 (La.1979) (mem.).

CERTIFICATION DECLINED.

PATTERSON, C.J., WALKER, P.J., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.