dissenting.
I respectfully dissent, as a new trial is required because of the trial court’s limitation on the subpoena duces tecum for the newspaper’s photographs and because of the irrelevant and inflammatory evidence admitted. The first issue is addressed in Division 1 and the second in Divisions 4, 5, 7 and 8 of the majority opinion. In so dissenting, I do not mean to concur in the ruling on the photographs subpoenaed from law enforcement authorities but simply acquiesce in it at this juncture. I do concur in Divisions 2 and 3. As to Division 9, since the presentation of evidence was reversibly flawed, the issue is moot.
Defendant was charged with making a terroristic threat to Jalasker Lyles with the purpose of terrorizing him, by threatening to commit a crime of violence upon him, that is, by threatening to shoot him. OCGA § 16-11-37 (a) defines the crime of terroristic threat as occurring “when [a person] threatens to commit any crime of violence . . . with the purpose of terrorizing another ... or in reckless disregard of the risk of causing such terror. . . .” The latter alternate is not involved here. The statute also provides that a conviction cannot be had on the uncorroborated testimony of the victim.
Thus three elements must be proved: that the statement (if it was a statement, as here) was made; that it was a terroristic threat; and that the maker intended to terrorize the subject of the threat. See Wilson v. State, 151 Ga. App. 501, 503 (6) (260 SE2d 527) (1979); Boone v. State, 155 Ga. App. 937, 939 (2) (274 SE2d 49) (1980).
1. A representative for the newspaper stated that there were “215 or so negatives and slides” of the occasion. The defendant advised the court that all of them were needed because at least some of them would be relevant to test the truth of the testimony of the alleged corroborating witnesses, who obviously were present, to possibly impeach the police officer and witnesses as to what happened and who was where when, and to confirm defendant’s version of the situation so as to support his defense that the statement, if made, was uttered in self-defense and for his own protection because of fear in the circumstances.
There would be no way to test the precise relevancy of the photographs in advance because defendant did not know how the state’s *442witnesses would describe the incident or how far beyond its immediacy into the whole demonstration event the court would allow the evidence to extend. Yet the photographs, by their very nature as described by the newspaper’s representative, “could well have been critical” to the purposes of impeachment and the corroboration of the defense. The quoted words state the test that was applied in Cofield v. State, 247 Ga. 98, 106 (3) (274 SE2d 530) (1981), another case involving the compulsory process issue. What is dispositive in the first place, however, is that the newspaper had no privilege which would guard these photographs from production for the purposes advanced here. Hurst v. State, 160 Ga. App. 830 (1) (287 SE2d 677) (1982). Defendant was denied access to arguably material evidence.
The problem is not solved by the in camera inspection. To begin with, the court could not in advance divine what would or would not be impeaching evidence.
In the second place, the court refused to look at all of the photographs sought. The lines of demarcation which the court drew, with respect to what had to be produced for its viewing and what could be withheld, left outside of its determination photographs which prima facie would have been relevant to one of these material purposes stated. The reconstruction of events, which was in fact assertedly shown by the State through testimony at the trial which followed, is often measurably aided by photographs, especially when taken simultaneously with the event. Memories fade and are warped by perspective.
As defendant has shown, the refusal here was especially harmful because so much emphasis was put by the State on what occurred outside of the presence of the defendant and the allegedly threatened person at the time of the confrontation and also much in advance of that incident.
Thirdly, what is the authority for an in camera inspection of these non-privileged negatives and slides? Neither Byrd v. State, 171 Ga. App. 344, 345 (3) (319 SE2d 460) (1984), nor Jinks v. State, 155 Ga. App. 925 (2) (274 SE2d 46) (1980), provide it. Byrd addresses the in camera procedure provided by law for protection of prosecution files when a Brady1 request is made for exculpatory materials. Jinks affirms denial of access to the arresting officer’s personnel file because defendant could show no relevancy to the issues on trial. It did not even mention an in camera inspection.
Moreover, how can “we find any photographs not depicting defendant or the victim irrelevant to defendant’s defenses to the offense of a terroristic threat or for the purpose of impeaching the State’s *443witnesses,” without an examination of the photographs which are admittedly a) in existence, b) in the custody of the newspaper, and c) depictions of the very event about which there was much testimony at trial? We cannot make such a judgment without viewing the depictions and comparing them with the evidence produced at trial.
Thus, as appellant urges, his Sixth Amendment right to compulsory process to secure relevant evidence, recognized in Washington v. Texas, 388 U. S. 14 (87 SC 1920, 18 LE2d 1019) (1967), was violated because arguably relevant and material evidence was foreclosed. See Cofield v. State, supra; Hurst v. State, supra.
2. The evidence discussed by the Court in the remaining divisions listed went far afield of proving the intent to terrorize Mr. Lyles when the statement was made as the two men confronted one another during the demonstration.
Tapes made of recorded telephone messages days and even weeks before the incident on trial, which messages were not even directed to the victim, only remotely suggested defendant’s intent when he made the statement “[g]et back or I’ll shoot, I’ll shoot.” If the racist telephone messages tended to prove that defendant intended to terrorize Mr. Lyles when the statement was made, their inflammatory nature outweighed their probative value because of the prejudicial effect they would have on the jury. That is the test, as applied in Wood v. State, 255 Ga. 697, 698 (4) (341 SE2d 442) (1986). Defendant’s intent at the time, which was amply ascertainable by evidence of the circumstances of the demonstration and the environment in which the statement was made, was the issue. Nor were these or any other evidence discussed herein evidence of “similar transactions” so as to be probative of defendant’s bent of mind or intent and admissible under that principle, which is set out, e.g., in Bacon v. State, 209 Ga. 261 (14) (71 SE2d 615) (1952); Felts v. State, 154 Ga. App. 571 (2) (269 SE2d 73) (1980).
The evidence that defendant had been seen at other demonstrations with weapons was totally without relevance to the issues involved in this case. Defendant was not charged here with a weapons offense. In addition, the undisputed evidence was that he did not have a weapon at the time he allegedly made the threat. Thus the evidence did not involve similar “prior criminal actions,” which is what Sport v. State, 253 Ga. 689 (1) (324 SE2d 184) (1985) stands for. Moreover, defendant and Mr. Lyles were strangers, so he could not be making the threat with the idea that he knew Mr. Lyles would fear that he had a weapon based on any previous knowledge Lyles had of defendant’s prior weapon-carrying. Thus the purpose on which the Court pins relevancy is non-existent here, and none other appears.
Evidence about the arrest and conduct of Billy Roland at a time much previous and at another location that day was not shown to *444have any relevancy whatsoever, except to inflame and draw attention away from the sole issues in the case. By agreeing to stipulate to the simple fact that Roland had been arrested, defendant did not agree to a full exploration of this event, which did not directly involve defendant and concerning which he was not on trial. The stipulation was made precisely for the purpose of averting such an excursion. Defendant here did not step into that territory, as did counsel in Brown v. State, 175 Ga. App. 246, 247 (3) (333 SE2d 124) (1985).
Decided December 18, 1987 Rehearing denied December 18, 1987 Sam G. Dickson, for appellant. C. Andrew Fuller, District Attorney, Daniel A. Summer, Donald F. Chase II, Assistant District Attorneys, for appellee. James C. Rawls, V. Robert Denham, Jr., Jennifer F. Weiss, amici curiae.Nor did defendant open the door to evidence of the effect of the demonstration on law enforcement and the costs of it to the public, members of which sat on the jury deciding this leading demonstrator’s fate. This evidence is irrelevant, according to the majority, and with that I agree. Defendant had inquired of the officer on another subject entirely, that is, whether the area of the incident was a known area of drug traffic and police efforts there in that regard. This line of cross-examination did not lie in the same territory as that described above which the State elicited on redirect examination over objection.
Due to the vast amount of irrelevant and prejudicial evidence which the jury was permitted to consider, it is difficult to conclude that defendant’s trial was confined to whether or not he committed the offense of making a terroristic threat to Jalasker Lyles. For the reasons stated, the law requires a new trial.
Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).