MILLER, Justice:
The defendant appeals from a conviction in the Circuit Court of Marshall County of first degree murder without a recommendation of mercy for having killed a fellow inmate at the West Virginia State Penitentiary. The defendant assigns three errors. First, he contends the trial court gave an erroneous instruction to the jury on the factors it could consider in determining whether to grant mercy in the event it found him guilty of murder in the first degree. Second, he contends that the State failed to disclose his incriminating oral statements to two inmates at the Penitentiary. Third, he contends the prosecuting attorney engaged in prosecutorial misconduct by obtaining from the circuit court a grant of immunity to two inmates who testified against him.
I.
The defendant maintains that State’s Instruction No. 4,
which contains a
list of factors for the jury to consider in recommending mercy, was erroneous. He points out that this type of instruction has never been sanctioned by this Court, and argues it is misleading and confusing. He emphasizes the fact that after the jury began its deliberations, it sent a note asking the court to reread the list of factors it should consider in determining whether to recommend mercy. Ten minutes after the jury was given a copy of all the instructions and advised that State’s Instruction No. 4 was the one it had expressed an interest in reviewing, it reached a verdict without a recommendation of mercy.
The State argues that the factors listed in State’s Instruction No. 4 were generally held to be proper for jury consideration in
State ex rel. Leach v. Hamilton,
W.Va., 280 S.E.2d 62 (1980), and urges this Court to specifically adopt this instruction as a permissible method for guiding the jury in its deliberation as to mercy, in what it submits would otherwise be a vague and confusing task. Furthermore, the State argues that the defendant only preserved by objection two very limited areas of the instruction. This was an objection to Section G dealing with insanity and intoxication, and the last sentence of the instruction relating to not utilizing sympathy to grant mercy.
We have traditionally held that it is the mandatory duty of the trial court to instruct the jury that it may add a recommendation of mercy to its first degree murder verdict.
Syllabus Point 3,
State v. Lindsey,
160 W.Va. 284, 233 S.E.2d 734 (1977)
;
see also,
Syllabus Point 4,
State v. Headley,
168 W.Va. 138, 282 S.E.2d 872 (1981); Syllabus Point 3,
State v. Loveless,
139 W.Va. 454, 80 S.E.2d 442 (1954). This rule is based on the fact that juries in this State are given a limited sentencing role by letting them decide whether to return a first degree murder conviction with a recommendation of mercy under the provisions of W.Va.Code, 62-3-15 (1965).
This statute provides that in the event of a recommendation of mercy, the defendant is then eligible for parole under the provisions of W.Va.Code, 62-12-13(a)(l)(B).
We pointed out the jury’s limited role in a
murder case in
State ex rel. Leach v. Hamilton,
W.Va., 280 S.E.2d at 64:
“The West Virginia first-degree murder statute leaves very little sentencing discretion to juries. A finding of guilt automatically results in a life sentence and a jury’s only discretion is whether to grant parole eligibility by recommending mercy. The factors that a jury should consider in deciding whether to recommend mercy are not delineated, but these are for legislative determination.”
Contrary to the State’s argument, we did not suggest in
State ex rel. Leach v. Hamilton, supra,
that factors for jury consideration of mercy should be delineated in an instruction.
Leach
dealt with the question of whether a unitary trial was constitutional on a murder charge. We relied on our earlier decision of
State ex rel. Rasnake v. Narick,
159 W.Va. 542, 227 S.E.2d 203 (1976), which rejected a similar claim for bifurcation to a charge of rape under former W.Va.Code, 61-2-15 (1965). In the course of delineating what evidence a defendant might seek to introduce at a unitary trial, just as easily as at a bifurcated trial, that would motivate a jury to recommend mercy, we listed: “defendant’s age, mental state, defenses, family responsibilities, the nature of the offense and circumstances surrounding the crime.” W.Va., 280 S.E.2d at 65. Nowhere in the opinion did we suggest, much less direct, that a jury should be instructed on factors in determining whether to recommend mercy.
It does not appear that any court has considered whether a detailed jury instruction on the mercy issue should be given where there is no death penalty. In the past, a number of states had statutes permitting the jury in homicide cases to recommend mercy and thereby avoid imposition of the death penalty.
In a number of cases, an issue arose as to whether the jury had been properly instructed on their right to recommend mercy. This type of case is illustrated by
McLendon v. State,
205 Ga. 55, 52 S.E.2d 294 (1949), where the defendant appealed from a death sentence for first degree murder under a statute which permitted the jury to recommend mercy, resulting in a sentence of life imprisonment. At trial, the jury foreman questioned the trial court as to what the jury should consider in deciding to recommend mercy. The trial court simply stated that this issue was entirely within the discretion of the jury.
On appeal the defendant argued this statement was misleading and that the trial court should have charged the jury as to factors it should consider in deciding whether or not to recommend mercy. The court, in rejecting this claim, stated:
“There is no merit in these contentions. The jury, presumably being men of intelligence, could not have been misled by the instructions, and of necessity must have known that the matter of recommending mercy was within their discretion, and a recommendation or refusal could be made with or without reason. In
Hicks v. State,
196 Ga. 671(2), 27 S.E.2d 307, 309, it was held: ‘The jury in determining whether or not to recommend mercy is not controlled by any rule of law, nor could the court under any circumstances instruct them as to when they should, or should not, make such a recommendation. They may do so with or without reason, and they may decline to do so with or without a reason. It is a matter wholly within their discretion.’ ... ‘For ourselves, we think little, if anything, can be added to the words of the statute without qualifying it.’ ”
205 Ga. at 68, 52 S.E.2d at 302.
More recently, in
Manor v. State,
223 Ga. 594, 157 S.E.2d 431 (1967),
vacated in part,
408 U.S. 935, 92 S.Ct. 2256, 33 L.Ed.2d 750 (1972), the Georgia court held that the trial court properly refused to give an instruction offered by the defendant in a capital case. The instruction would have told the jury it should consider the defendant’s intelligence, his mentality and comprehension in determining whether to recommend mercy. The refusal to give such an instruction was upheld on the ground that it would interfere with the jury’s unlimited discretion to decide whether to recommend mercy.
In jurisdictions where the decision to recommend mercy is left entirely within the discretion of the jury and is made binding on the trial court, it is uniformly held that an instruction which enumerates instances or suggests when a mercy recommendation might be appropriate is reversible error.
Cohen v. State,
116 Ga. 573, 42 S.E. 781 (1902);
State v. Martin,
92 N.J.L. 436, 106 A. 385 (1919);
State v. Jones,
201 S.C. 403, 23 S.E.2d 387 (1942); Annot., 138 A.L.R. 1222 (1942); Annot., 87 A.L.R. 1363 (1933); Annot., 17 A.L.R. 1117, 1129 (1922).
One of the difficulties with the mercy instruction in this case is that it contains matters that are directly related to possible defenses to a criminal charge. As a consequence, the jury in its deliberations could be deflected from deciding the merits of a defense issue and treat it as part of the mercy recommendation. Section D of the instruction tells the jury that it must consider whether “the murder was committed under circumstances while [sic] the defendant believed to provide a moral justification or extenuation for his conduct.” This is analogous to the concept of self-defense, which provides a justification or excuse for a killing, and is a complete defense to criminal liability.
E.g., State v. Baker,
177 W.Va. 769, 356 S.E.2d 862 (1987);
State v. W.J.B.,
166 W.Va. 602, 276 S.E.2d 550 (1981). Even where the self-defense act is not a complete defense, it may serve to reduce murder to voluntary manslaughter because of provocation.
See, State v. Starkey,
161 W.Va. 517, 527, n. 7, 244 S.E.2d 219, 225, n. 7 (1978);
State v. Kirtley,
162 W.Va. 249, 252 S.E.2d 374 (1978).
Much the same problem exists as to Section B relating to whether the murder was committed “while the defendant was- under the influence of extreme mental or emotional disturbance,” and Section G which dealt directly with mental disease and intoxication at the time of the crime. These factors are recognized defenses to a crime such as the insanity defense under
State v. Bragg,
160 W.Va. 455, 235 S.E.2d 466 (1977), or a diminished mental capacity defense which may negate a specific criminal intent.
See, State v. Simmons,
172 W.Va. 590, 309 S.E.2d 89 (1983). We have also recognized that extreme intoxication can negate specific criminal intent.
State v. Keeton,
166 W.Va. 77, 272 S.E.2d 817 (1980).
Finally, and perhaps most tellingly, the instruction did not relate to any evidence that was actually before the jury at the trial. Consequently, the jury was left in the posture of not having the unfettered discretion of making the determination of mercy based solely on their impression of the defendant and the circumstances of the case. Rather, it was given specific guidelines, none of which applied to the evidence, and in effect advised that if it found none
of these existed, then mercy was not available.
Consequently, we hold that an instruction outlining factors which a jury should consider in determining whether to grant mercy in a first degree murder case should not be given.
Although the State argues that the defendant only objected to portions of this instruction, we believe there was a sufficient objection to preserve the point. This is particularly true in view of the fact that it was this specific instruction that the jury requested a review of after it had commenced its deliberations. Shortly after the jury received it, it returned a verdict without a recommendation of mercy.
II.
The defendant next contends that the prosecution violated Rule 16(a)(1)(A) of the West Virginia Rules of Criminal Procedure by not supplying the substance of incriminating oral statements he allegedly had made to fellow inmates after the crime was committed. The defendant contends the nondisclosure was prejudicial.
The State’s brief does not address the issue of whether the prosecution violated Rule 16. Rather, it relies on cases such as
State v. Lassiter,
177 W.Va. 499, 354 S.E.2d 595 (1987), and
State v. Duell,
175 W.Va. 233, 332 S.E.2d 246 (1985), where we discussed whether nondisclosure was prejudicial under Syllabus Point 2 of
State v. Grimm,
165 W.Va. 547, 270 S.E.2d 173 (1980):
“When a trial court grants a pre-trial discovery motion requiring the prosecution to disclose evidence in its possession, non-disclosure by the prosecution is fatal to its case where such non-disclosure is prejudicial. The non-disclosure is prejudicial where the defense is surprised on a material issue and where the failure to make the disclosure hampers the preparation and presentation of the defendant’s case.”
The record shows that after the jury was impaneled on the first day of trial, the defense was provided with the written statements two prison inmates, Jack Hubbard and Merle Outright, had made to law enforcement officers. Neither of these statements indicated that the defendant had made any incriminating comments to these individuals after the killing.
On the first day of trial, Mr. Hubbard testified in detail about a plot by members of the Avengers’ Motorcycle Club to kill the victim. Mr. Hubbard testified that he and another prisoner, Mr. Outright, had participated in the crime by distracting correctional officers at the top of the stairs near a hallway where the killing took place. The plan had been for the defendant to grab the victim and for another inmate, Harry Jarrell, to stab him to death.
Mr. Hubbard testified that he did not, however, see the actual stabbing, but did indicate he saw the defendant in the vicinity of the stairs along with the victim and the co-defendant, Mr. Jarrell. He also heard the victim cry out. Mr. Hubbard then related that several days following the murder, the defendant had stated that he grabbed the victim as he came through the basement door, and had laughed about how the co-defendant, Mr. Jarrell, had nearly stabbed him instead of the victim.
Prior to commencement of trial the next day, counsel for the defendant moved for a mistrial due to the nondisclosure of the defendant’s incriminating oral statements to Mr. Hubbard. He also moved to strike Mr. Hubbard’s testimony concerning the oral statements and stated that any such testimony from Mr. Outright should not be permitted. The trial court acknowledged that a serious question was presented as to whether Rule 16(a)(1)(A) of the West Virginia Rules of Criminal Procedure
had
been violated because of the failure to disclose, but denied the motion for mistrial.
The State then called Mr. Outright, who corroborated the testimony of Mr. Hubbard. He also testified that a few days after the killing he had also heard the defendant describe how he had grabbed the victim and had nearly been stabbed himself by Mr. Jarrell. After the trial was concluded, the defendant moved for a new trial under Rule 33 on the basis that the Rule 16 violation had prejudiced him in the preparation and presentment of his defense. He emphasized that he was deprived of an opportunity to interview witnesses allegedly present when his statements were made.
It is apparent that the State violated Rule 16 by not disclosing the substance of the defendant’s alleged oral incriminating statements it intended to use at trial. The defendant filed a timely discovery motion under Rule 16, specifically requesting any such statements. The State did not argue below that it was unaware of these incriminating oral statements, but only that Rule 16(a)(1)(A) referred to statements made to law enforcement officers.
This argument is not pressed on appeal, for as we observed in
State v. Lambert,
175 W.Va. 141, 331 S.E.2d 873, 878 (1985), our Rule 16(a)(1)(A) of the West Virginia Rules of Criminal Procedure, unlike its federal counterpart, requires the prosecution to disclose the substance of any oral statement of the defendant it intends to offer in evidence at trial, and is not limited to oral statements made to law enforcement officers. Consequently, this portion of our Rule 16 is broader in scope than the federal rule
and follows the American Bar Association’s model standards on pre-trial discovery in criminal proceedings.
The question that remains here is whether the nondisclosure constitutes reversible error.
Our traditional appellate standard for determining whether the failure to comply with court-ordered pretrial discovery is prejudicial is contained in Syllabus Point 2 of
State v. Grimm, supra.
It essentially involves a two-pronged inquiry: (1) did the non-disclosure surprise the defendant on a material fact, and (2) did it hamper the preparation and presentation of the defendant’s case. This was evolved prior to the adoption of our Rules of Criminal Procedure,
but is applied to Rule 16 discovery.
E.g., State v. Hager,
176 W.Va. 313, 342 S.E.2d 281 (1986);
State v. Duell,
175 W.Va. 233, 332 S.E.2d 246 (1985);
State v. Fauber,
175 W.Va. 324, 332 S.E.2d 625 (1985). This appellate standard of review basically comports with federal court decisions relating to whether the failure to comply with court-ordered discovery under Federal Rule 16 constitutes reversible error, as illustrated by
United States v. Barragan,
793 F.2d 1255, 1259 (11th Cir.1986):
“This Court will not reverse a conviction based on a violation of Fed. R.Crim.P. 16(a)(1)(A) unless the appellant demonstrates that the violation prejudiced his substantial rights.
See United States v. Rodriguez,
765 F.2d 1546, 1557 (11th Cir.1985)_ In determining whether substantial prejudice exists, this Court considers whether the defendant was unduly surprised and did not have an adequate opportunity to prepare a defense, or whether the mistake had substantial influence on the jury.
Id.”
See also United States v. McAllister,
747 F.2d 1273 (9th Cir.1984),
cert. denied,
474 U.S. 829, 106 S.Ct. 92, 88 L.Ed.2d 76 (1985);
United States v. Jackson,
757 F.2d 1486 (4th Cir.),
cert. denied,
474 U.S. 994, 106 S.Ct. 407, 88 L.Ed.2d 358 (1985); 2 C. Wright,
Federal Practice and Procedure
§ 261 (1982).
Admittedly, Grimm’s standard provides little specific guidance to a trial court which is confronted with a late discovery issue. We have not had occasion to emphasize Rule 16(d)(2) which enables a trial court to impose sanctions that may have the effect of curing a late discovery problem.
This portion of our Rule 16 is identical to Rule 16(d)(2) of the Federal Rules of Criminal Procedure. There are numerous federal and state cases dealing with late discovery problems which can be divided into two major categories.
The first is where there is late discovery in the pretrial stage of the case and the party should be aware of the material. The solution is fairly simple as outlined in 2 C. Wright, supra, § 260: “If a request for discovery is refused or not responded to in the pretrial stage, it is unlikely that-there will be a need for sanctions. A motion to compel disclosure is ordinarily enough to remedy the situation.”
The second and more difficult category is exemplified by the present case where the discovery failure is revealed at trial. As
Wright
notes, all courts agree that the rule “gives the [trial] court broad discretion in deciding what should then be done.” 2 C.' Wright,
supra
at § 260. The threshold inquiry is to “take into account the reasons why disclosure was not made, the extent of the prejudice, if any, to the opposing party, the feasibility of rectifying that prejudice by a continuance [or recess if the trial has begun]
, and any other relevant circumstances.” 2 C. Wright,
supra
at § 260. Some courts have added that consideration should be given to “whether the prosecution acted in bad faith in violating the ...
discovery order.”
United States v. Fernandez,
780 F.2d 1573 (11th Cir.1986), citing
United States v. Soto,
711 F.2d 1558 (11th Cir.1983).
The critical question is the degree of prejudice suffered and whether this can be offset by appropriate remedial sanctions. The rule enumerates several sanctions, such as a continuance or prohibiting the use of the evidence
that was not disclosed, and contains a general catchall phrase “such other order as it deems just.”
Rule 16(d)(2).
Here the trial court utilized no sanctions to alleviate what was recognized as a prejudicial Situation. The testimony of Mr. Hubbard was already in the case and defense counsel had made no contemporaneous objection, but moved to strike the testimony or declare a mistrial.
The trial court could have advised the jury to disregard that portion of Mr. Hubbard’s testimony dealing with the defendant’s oral incriminating statement made after the killing. The court could also have prevented Mr. Cut-right, who had not testified, from mentioning the defendant’s oral statements.
We need not determine, in view of the mercy instruction error, whether this error, standing alone, would be sufficient to warrant a new trial. In a number of cases, courts have concluded that the overwhelming nature of the State’s case renders the late discovery nonprejudicial.
E.g., United States v. Scafe,
822 F.2d 928 (10th Cir.1987);
United States v. McKinney,
758 F.2d 1036 (5th Cir.1985);
Montgomery v. State,
504 So.2d 370 (Ala.Cr.App.1987);
Dickey v. State,
179 Ga.App. 383, 346 S.E.2d 864 (1986);
State v. Busby,
464 So.2d 262 (La.1985);
State v. Moore,
703 S.W.2d 183 (Tenn.Cr.App.1985). We are doubtful that this rule could be applied here.
III.
As a final assignment the defendant contends that the prosecution granted immunity from prosecution to both Mr. Hubbard and Mr. Cutright without court approval. The defense, on discovering this fact, sought by way of a mandamus action in the circuit court to compel the prosecutor to take the evidence against Mr. Hubbard and Mr. Cutright to the grand jury. The prosecutor then moved the court to grant immunity to them.
The court set both of these matters for a consolidated hearing, but took the immunity question first, reasoning that if it granted immunity then the mandamus was moot. The court did grant immunity, but the defendant now contends that the immunity procedure was invalid under
Myers v. Frazier,
173 W.Va. 658, 319 S.E.2d 782 (1984).
We believe the defendant misperceives our discussion in
Myers
which dealt with the power of a prosecutor to grant immunity against prosecution. We initially pointed out that there was no common law authority for a prosecutor to grant immunity, and stated in Syllabus Point 16:
“Most courts have held that in the absence of some express constitutional
or statutory provision, a prosecutor has no inherent authority to grant immunity against prosecution.”
We also pointed out in
Myers
that W.Va.Code, 57-5-2, placed the power of immunization with the circuit court. Even though the prosecutor’s initial attempt to grant immunity could not confer it, the subsequent decision by the circuit court to bestow it renders this issue moot.
For the foregoing reasons, we reverse the judgment of the Circuit Court of Marshall County.
Reversed and remanded.