Opinion
No. 2010-KA-00466-COA.
May 10, 2011.
TRIAL JUDGE: HON. C.E. MORGAN III, DATE OF JUDGMENT: 02/24/2010
COURT FROM WHICH APPEALED: CHOCTAW COUNTY CIRCUIT COURT
TRIAL COURT DISPOSITION: CONVICTED OF DELIVERY OF A CONTROLLED SUBSTANCE AND SENTENCED TO FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH EIGHT YEARS TO SERVE AND SEVEN YEARS SUSPENDED
DISPOSITION: REVERSED AND REMANDED
ATTORNEY FOR APPELLANTS: W. DANIEL HINCHCLIFF
ATTORNEYS FOR APPELLEE: STEPHANIE BRELAND WOOD
DISTRICT ATTORNEY: DOUG EVANS
EN BANC.
¶ 1. In February 2010, Jerome Patterson was convicted in Choctaw County Circuit Court of delivery of a controlled substance and sentenced to fifteen years in the custody of the Mississippi Department of Corrections (MDOC) with eight years to serve and seven years suspended. After continued failure of the State to provide requisite information regarding its confidential informant, who was set to be its key witness, the defense filed a motion to continue on the day before the trial. The State subsequently released the requested information less than twenty-four hours before the start of the trial, and the circuit court denied the motion to continue. After his conviction, Patterson filed a motion for a new trial or, in the alternative, a judgment notwithstanding the verdict (JNOV), which again raised the issue of the State's refusal to complete compulsory discovery in a timely manner. The circuit court denied the motion, and Patterson now appeals. Finding manifest error in the State's refusal to adhere to the mandatory rules of discovery until the eve of trial, we reverse the judgment of conviction and sentence and remand this case to the circuit court for a new trial.
STATEMENT OF FACTS
¶ 2. On January 26, 2010, Patterson was indicted for the crime of delivery of a controlled substance. The indictment alleged that Patterson had sold, transferred, distributed, or delivered twelve dosage units of the Schedule III controlled substance, Hydrocodone. The case was set for trial on February 18, 2010, less than a month after Patterson was indicted. On January 28, 2010, the defense filed a motion for discovery, requesting that the State provide the names, addresses, and any written or oral statements of intended witnesses. The State indicated that they would present key witness testimony from a confidential informant who had first-hand knowledge of Patterson's alleged crime. However, the State did not release pertinent information regarding the witness as required by Uniform Rule of Circuit and County Court 9.04(A) and requested in the defense's discovery motion until the eve of the trial.
URCCC 9.04(A) provides, in pertinent part, that the prosecution must disclose to the defendant and allow inspection, copying, testing and photography of the names, addresses and statements, whether written or oral, of all witnesses in chief which the prosecution intends to offer at trial.
¶ 3. On February 16, the defense moved to compel discovery and requested a continuance of the trial given the State's failure to provide the requisite witness information. The circuit court reasoned that because the defense had been given the confidential informant's name two days prior to the trial and was granted an opportunity to speak with the informant on the day before the trial, the State had honored its duty. Thereafter, Patterson was convicted of delivery of a controlled substance and sentenced to fifteen years in the custody of the MDOC, with eight years to serve and seven years suspended. The defense filed a motion for a new trial or, in the alternative, a JNOV and again raised the issue of the State's failure to complete discovery in a timely manner. The circuit court denied the post-trial motion, and Patterson now appeals.
DISCUSSION
¶ 4. Patterson alleges that the circuit court erred by denying his motion for a continuance and that the State's refusal to reveal pertinent information to the defense regarding its key witness until the eve of the trial denied Patterson a fair trial. This Court has held that: "The decision to grant or deny a motion for a continuance is within the sound discretion of the trial court and will not be grounds for reversal unless shown to have resulted in manifest injustice." Pilgrim v. State, 19 So. 3d 148, 152 (¶ 13) (Miss. Ct. App. 2009) (citing Payton v. State, 897 So. 2d 921, 942 (¶ 67) (Miss. 2003)). However, the Mississippi Supreme Court recently addressed a case strikingly similar to the one at hand and stated the following:
When a prosecutor reveals evidence on the eve of trial that should have been disclosed earlier, and when that evidence . . . renders most of [the defense's] trial preparations worthless, then the only effective remedy is a continuance. Otherwise, the defense attorney is left with inadequate time and opportunity to investigate the newly arisen evidence, evaluate its trustworthiness, discuss its implications with his client, allow time for due consideration thereof, and, if necessary, to develop a new trial strategy.
Fulks v. State, 18 So. 3d 803, 805 (¶ 10) (Miss. 2009).
¶ 5. In this case, the trial was set less than thirty days after Patterson's indictment, placing his counsel at an automatic disadvantage in preparing the case. Nonetheless, the State further handicapped the defense by failing to provide the defense with the name of the State's star trial witness, a confidential informant claiming to have been present during the alleged crime, until approximately two days before the trial. Furthermore, the defense was not provided the witness's address, statements, or any other information at the time it received the witness's name. It was not until a day before the trial, after Patterson's counsel had filed a motion to compel and a motion for a continuance, that the defense was given the address of the witness and an opportunity to speak with the witness.
¶ 6. The State's abuse of the rules of discovery unquestionably handicapped the defense in formulating a trial strategy. Having only been afforded the requisite information regarding the witness and an interview with the witness less than twenty-four hours before the trial, the defense was not allowed adequate time to assess the State's case, investigate the witness, follow up on information gleaned from the interview and newly gathered information, and generally prepare for trial.
¶ 7. By comparison, under Uniform Rule of Circuit and County Court 4.04(A), absent special circumstances, a court "will not allow testimony at trial of an expert witness who was not designated . . . at least sixty days before trial." (Emphasis added). Just as civil cases often hinge upon expert testimony, many criminal cases turn upon the testimony of a confidential informant, as in this case. Yet counsel involved in a civil case would receive the requisite information regarding a star expert witness months before the trial begins, whereas here, counsel in a criminal case, which involves a human being's freedom, was not granted critical information on a star witness until hours before the trial.
¶ 8. Additionally, Uniform Rule of Circuit and County Court 9.04(I) provides that in the event that the State fails to disclose evidence in a timely manner, such as information of a star witness, to the defense, the court shall:
[G]rant the defense a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents . . . and [i]f, after such opportunity, the defense . . . seeks a continuance or mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the non-disclosed evidence or grant a mistrial.
URCCC 9.04(I)(1)(2) (emphasis added). Thus, despite a timely request for discovery from the defense, a motion to compel discovery, and a motion to continue the case, Patterson was blatantly denied the rights granted to him under the rules of discovery. As stated by the Mississippi Supreme Court: "A rule which is not enforced is no rule." Box v. State, 437 So. 2d 19, 21 (Miss. 1983). Accordingly, we find reversible error in the circuit court's reluctance to enforce the applicable rules of discovery in this case and determine that Patterson was subsequently denied a fair trial.
¶ 9. THE JUDGMENT OF THE CHOCTAW COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CHOCTAW COUNTY. LEE, C.J., IRVING AND GRIFFIS, P.JJ., AND MYERS, J., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. ROBERTS, CARLTON AND MAXWELL, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION.