IN THE SUPREME COURT OF MISSISSIPPI
N O. 2013-CT-01236-SCT PRESTON OV

ERTON

v. STATE OF MISSISSIPPI
ON WRIT OF CERTIORARI DATE OF JUDGMENT: 03/15/2013 TRIAL JUDGE: HON. FORREST A. JOHNSON, JR. TRIAL COURT ATTORNEY: JEFFERY KENDRICK HARNESS COURT FROM W HICH APPEALED: ADAMS COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE JASON L. DAVIS DISTRICT ATTORNEY: RONNIE LEE HARPER NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: REVERSED AND REMANDED - 04/28/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. DICKINSON, PRESIDING JUSTICE, FOR THE COURT: ¶1. A jury convicted Preston Overton of possession of cocaine and possess i o n of a f irearm by a convicted f

elon. The day bef

ore trial, the def

e nse disclosed its intent to c a l l t wo witnesses, but the circuit judge excluded their testim ony as a discovery sanction. Because

t he record lacks a ny evidence that the def e nse m ade its late disclosure to gain a t a c t i c a l advantage, the circuit judge erred by excluding Overt o n ’ s w i t nesses. So we reverse Overton’s convictions and rem a nd this case f or a new trial.FACTS AND PROCEDURAL HISTORY

¶2. On July 12, 2012, L ieutenant George P i r k e y a n d D e p u t y D a v i d W a shington responded

to s uspected drug activity at Overton’s residence. T h e v e r s i o n s of what occurred at the

r e sidence dif

f er. According to the of

f icers, they knocked on the door and O verton invite d them inside. Overton’s girlf

riend, Christine Dunm ore, was present. Once inside, Overton signed a consent to search the hom e, and the of f icers f ound c ocaine, a .38 caliber handgun, and a docum ent bearing Overton’s personal inf or m ation in one bedroom

. The of f icers placed
Overton under arrest, and Overton signed a written statem e nt adm i tting the cocaine belonged to him

. ¶3. According to O verton, however, the of f icers entered h is hom e u ninvited, looking f or Jerem y Page. Overton explained that Page was renting a b edroom in the hom e b ut was not hom e at the tim e. Unaware o f the cocaine’s presence, Overton consented t o the s earch and, when the of

f icers f ound the cocaine and handgun, he inf orm e d the o f

f icers that the bedroom belonged to Page. He also t old the of f icers that the gun belonged to his grandm o ther, who had passed aw a y i n 2009, a nd t hat he was unaware that i t w as i n t he house. Finally , according to Overton, he signed the written c onf ession only because the of f icers threatened
to arrest Dunm ore if

he did not conf

ess. ¶4. On March 15, 2013, h aving heard these conf licting versions of the s earch and arrest,

a j ury convicted O v e r t o n f or possession of c ocaine and p ossession of a f irearm by a

2convicted f elon. He a

ppealed, arguing that the circuit judge had erred b y e x c l uding the testim o ny of two def ense witnesses. 1 ¶5. The day bef

ore trial, the def

e n s e f i l e d a w i tness list, indicating its intent to call
Dunm ore and Eunice Cheatham

. During voir dire t he next m o rning, the State objected that it had b een blindsided by these witnesses. T he def ense suggested that a continuance would be proper. Af

t er the judge a llow e d t h e S t ate’s i nvestigator to interview Dunm ore and Cheatham , the S tate asked that they b e precluded f rom t e stif y ing, and the circuit judge agreed. T he record does not ref lect why these witnesses were disclosed o n the eve of trial. And the circuit judge’s only com m ent on the reason was that: The C o u r t d id not intend in any way t o im pute any t hing im proper about counsel h a n d l i n g this m atter, and it w as a m a tter w here the f am ily , I think, cam e up with these w itnesses right toward the end there, a nd so it’s a situation like that. ¶6. The judge did a l l o w O v e r t o n t o p r o f f e r t h e w i t n e s s e s’ testim ony . D unm ore corroborated Overton’s version of the search and arrest. She explained that the police had entered without knocking o r invitation, that they had asked f o r Page, that Page had lived in the house, and that Overton had i nf orm ed the police that t hey had f ound the cocaine and gun in Page’s bedroom

. She conf irm e d that the of

f icers had threatened to arrest her if Overton

wo u l d n o t conf

e ss. S he explained that the docum ent bearing Overton’s i nf orm ation was f ound in Page’s bedro o m because Overton had used the room f or s torage bef

ore he rented

1 O verto n v. S

ta te , N o . 2 0 1 3

- K A -0 1 2 3 6 -C O A , 2 0 1 5 WL 3 9 4 8 4 6 1 , * 1 (M iss. C t. A p p . Ju n e 9 , 2 0 1 5 ). 3it to P age. Finally , Dunm ore i ndicated that she f irst had talked to Overton’s c ounsel the day bef ore trial. But counsel then s tated that he had interviewed her s om e tim e in February 2013. ¶7. Cheatham

—Overton’s aunt—stated that Overton’s hom e p reviously had belonged to her m other, his grandm other. She explained t hat the gun belonged to her m other, and that she had put it in the b e droom bef ore Page rented a bedroom in 2008 because her m o ther was suf f e ring f rom Alzheim er’s and she f eared f or her m other’s saf

ety

. She conf

irm ed that Page l ived in the hom e and explained that, af ter Overton was a rrested, she had f ound Page’s belongings in the bedroom , i ncluding clothes, shoes, and identif i cation. She stated that she
f irst had told Overton’s lawy er this inf orm ation som e tim e during the week bef ore trial. ¶8. The Mississippi Court of Appeals concluded t hat “in light of his conf e ssion and the length of tim e that the gun had been in h is h o me , O v e r t o n w as not prejudiced by the

exc l u s i o n of the two d e f ense witnesses.” 2 Overton also claim ed t hat his counsel had provided constitutionally inef f ective representation by f ailing to disclose the witnesses

ear lier. The Court of Appeals lef t this claim f

o r post-conviction review. 3 Overton then petitioned this Court f

or certiorari, arguing that t he Court of Appeals h ad erred b y af f irm ing the circuit judge’s decision to exclude his witnesses’ testim ony . W e agree. ANALYSIS ¶9. W i th regard to discovery sanctions, t his Court has recognized that “[ t]he court cannot disregard the ‘f

undam ental character of the def endant’s right to of

f er the t esti mo n y of

2 Id . at * 3

. 3 Id . at * * 3

– 4

. 4witnesses in his f avor.’” 4 “The weight of the sanction should be based on the m otivation of the of f ending party in violating the discovery rule,” and “[ t]he general r ule is t hat evidence

m ust not b e excluded.” 5 “ [ E]xclusion of evidence is a r adical sanction t hat ‘ought be reserved f

or c ases in which the def e ndant parti c i p a t e s s i gnif icantly in som e deliberate,
cy nical schem e to gain a substantial tactical advantage.’” 6 ¶10. “The f

a ct t hat evidence was recently discovered, by itself , is insuf f icient proof that a discovery violatio n w a s willf ul and m otivated by a desire to obtain a tactical advantage.” 7
W e have rejected “‘a posture in which we assum e that recently d iscovered evidence is part of s om e schem e to def

raud justice and require the def endant to prove otherwise.’” 8 In other words, the record m

ust contain evidence t hat the d ef endant com m itted a d iscovery violation to obtain a tactical advantage bef o re exclusion becom es the appropriate sanction. ¶11. Here, assum ing that Overton violated U n i f o r m R u l e o f Circuit and County Court Practice 9.04, the c ircuit judge erred by em ploy ing e x clusion a s a sanction. The record

con t a i n s n o evidence t hat either the def endant or def

ense counsel w ithheld t he witnesses’ identities to gain a tactic a l a d vantage. Further, the circuit judge m ade no such f inding.

4 M yers v. S ta te , 1 4 5 S o . 3 d 1 1 4 3 , 1 1 4 9 ( M iss. 2 0 1 4 ) ( q u o tin g C o lem a n v. S

ta te , 7 4 9 S o . 2 d 1 0 0 3 , 1 0 0 9

– 1 0 (M i ss. 1 9 9 9 )).

5 M yers , 1 4 5 S o . 3 d a t 1 1 4 9 (citin g C o lem a n , 7 4 9 S o . 2 d at 1 0 0 9 ; W illia m s v. S

ta te , 5 4 S o . 3 d 2 1 2 , 2 1 3 (M iss. 2 0 1 1 )).

6 M yers , 1 4 5 S o . 3 d at 1 1 4 9 (q u o tin g H o u sto n v. S

ta te , 5 3 1 S o . 2 d 5 9 8 , 6 1 2 (M iss. 1 9 8 8 )).

7 M yers , 1 4 5 S o . 3 d at 1 1 4 9 (citin g W illia m s , 5 4 S o . 3 d at 2 1 5 ).

8 M yers , 1 4 5 S o . 3 d at 1 1 4 9 (q u o tin g W illia m s , 5 4 S o . 3 d at 2 1 4 ). 5Instead, he ruled that def ense counsel had done n othing wrong, but the witnesses would be excluded because they were “m aterial.” ¶12. W e are unable to agree with the dissent f or two reasons. F irst, the trial judge never asserted t hat Overton or his counsel had com m itted any willf ul discovery violation. The trial judge stated that he “did not intend in any way to im p ute any thing im proper about counsel handling this m a tter,” a nd that t he late disclosure of the witnesses “was a m atter where the
f am ily , I think, cam e up with these witnesses right tow ard the end there, and so it’s a situation like that.” ¶13. If , as the trial judge assum ed , t h e f a mi l y ( n o t t h e def

endant) “cam e up” with the witnesses late, no reasonable inf erence is to be drawn that Overton or his counsel willf ully violated the discovery rules. And cer t a inly , no evidence bef ore us suggests that the “def endant participate[ d ] signif icantly in som e deliberate, cy nical schem e to gain a substantial tactical advantage.’” 9 ¶14. The dissent seizes upon the trial judge’s u se of the p hrase “trial by am bush.” But this phrase i n no way s uggests that Overton or h is counsel willf ully violated the discovery rules,

or that they had prior knowledge o f the witnesses’ potential testim ony . The p hrase, standing alone, m e ans no m ore than that the witnesses were produced on the e v e of t rial, a n d that the trial judge agreed w ith the prosecution that it would be “blindsided” if the witnesses testif ied. This, of c o urse , w o u l d be true w hether or not Overton or his counsel had prior knowledge of the testim ony

and whether or not any

intentional discovery

violation occurred.

9 M yers , 1 4 5 S o . 3 d at 1 1 4 9 (q u o tin g H o u sto n , 5 3 1 S o . 2 d at 6 1 2 )

. 6¶15. The trial judge m a de clear his reason f or excluding the witnesses: They cam e f

orwar d

. T he clerk advised that the witness list was f iled about 5:00 y e sterday when we had a trial going on. T he State advised that they were advised this m orning. These a re m a terial wa s [ sic] witnesses. You can’t do that. I gave t hem a chance to talk to them t o see what they ’re going to testif y t o . This sounds like m aterial witnesses, so the objection i s g oing t o b e sustained. ¶16. The judge n ever m ade any f inding about Overton’s intent. His decision to e xclude the witnesses and to deny Overton’s requested continuance w as based o n his f inding that the witnesses were m aterial. Our p r e c e d e nt clearly h olds t hat exclusion is not an appropriate sanction absent evidence of an intenti o n al violation. 10 And nothing i n the record suggests that t he trial judge believed Overton or his counsel had com m itted a willf ul violation, or that he based his decision on such a f inding. But the dissent suggests o therwise, opining that the trial judge did f

ind a w illf

ul violation an d t h a t t h e t r ial judge’s f i nding s hould be af

f irm ed under a def

erential standard of

review. ¶17. Again, the trial judge never held that the witnesses were e x cluded because of a willf ul violation. But if

, a s the d issent b e lieves, he did, then w e would be required to e xam ine the record to f

ind evidence t o support that f inding. W e f

ind none, so any such f

inding would have been arbitrary

and without support. ¶18. T h e r e cord is void of any evidence of a “deliberate, cy nical s c h e me t o g a i n a substantial tactical advantage” as required by o ur precedent, 11 so, even if the trial j udge had
f oun d a d eliberate violation, that f inding would have been based on pure s peculation.

10 M y ers , 1 4 5 S o . 3 d at 1 1 4 9

. 11 Id . (q u o tin g H

o u sto n , 5 3 1 S o . 2 d at 6 1 2 ).

7Accordingly , we m u st reject t he d issent’s v iew that evidence of late di s c l o s u re—standing alone—would support a f

inding of an intentional discovery violation. But to be clear, we do not agree with the dissent that the trial judge m a d e this arbitrary f actual f inding. ¶19. R e v e r s al is required “only if [ the def e ndant] can show that he was prej u d i c e d o r harm ed by the exclusion o f the evidence

. T his Court has f ound prejudice where the trial

court excludes evidence that tend e d t o s u p port the def endant’s t heory of the case.” 12 Recently , we f

o u nd prejudice where the “case f eatured sharply contrasting evidence, with the credibility of each side’s v ersion of events play ing a critical role in the jury ’s deliberations.” 13 ¶20. The sam e is t rue here. This case presented a pure battle o f credibility

. According to the of f icers, Overton never m entioned Page and v oluntarily adm itted the cocaine belonged

to him

. A ccording to O verton, he a lway s had m aintained that the drugs belonged t o Page and the gun to his grandm other, an d t h at he had no knowledge that e ither w as i n the bedroom Page rented. Further, he testif i ed that he had conf

e ssed only d

ue t o threats f

rom the of

f icers. The e xcluded def

ense witnesses would ha ve corroborated all of Overton’s testim ony . Because this c ase hinged on credibility , we f ind that O verton w as p rejudiced by the trial judge’s erroneous exclusion of the witnesses’ corroborative testim ony . CONCLUSION

12 Id . at 1 1 5 0 (citin g J

a ck so n v. S t a t e , 5 9 4 S o . 2 d 2 0 , 2 5 (M iss. 1 9 9 2 ) ).

13 M y ers , 1 4 5 S o . 3 d at 1 1 5 0

. 8¶21. Because the circuit judge erred by excluding O verton’s witnesses, and because that

error prejudiced his def

ense, we r everse the trial court’s judgm ent a nd rem and t his case f or a new trial. W e also reverse the judgm ent of the Mississippi Court of Appeals. ¶22. REVERSED AND REMANDED. LAMAR, KITCHENS, KING, COLEMAN A ND BEAM, JJ., CONCUR. R ANDOLPH, P.J., D ISSENTS WIT H S E P A R A T E W R I T T E N O P I N I O N J O I N E D B Y WALLER, C.J. MAX WELL, J., NOT PARTICIPATING. RANDOLPH, PRESIDING JUSTICE, DISSENTING: ¶23. W i thout s peculating as to the trial judge’s f inding t hat a deliberate violation occurred,
I direct m y f

ellow justices t o the contents o f t he record bef ore us as the s ource of m y qualm s with the m ajority opinion. The trial judge did not m ince his words at trial, expressly f inding
Overton’s untim ely disclosure was an ef f ort to c o nduct a “trial by am bush” and pronouncing the untim ely disclosure as “an egregious violation.” He then f ollowed the precedent of this
Court and f

oiled a “trial by am

bush.” 14 The record in this case contains ( 1) evidence in support of exclusion, (2) a cl e a r a p p r e c i a tion by the trial judge of o ur l aw, and (3) proper application o f o u r rules and law to the f acts of this specif

ic case. If this Court grants the trial court the def

erence to which it is entitled, the trial judge should be af f irm ed. ¶24. The m a

jority repeatedly

cites Myers v. State , and indeed, Myers correctly states the law. Presiding Justice Dickinson a nd I are i n agreem ent regarding the law applicable to this

case, and nothing i n this dissent re j e c t s t h e principles of l aw addressed in the m ajority

14 S e e generally M

yers v . S ta te , 1 4 5 S o . 3 d 1 1 4 3 (M iss. 2 0 1 4 ); William s v . State , 54 So. 3d 212 (Miss. 2011); Morris v . S tate , 927 So. 2d 744 ( Miss. 2006); Colem an v. State , 749 So. 2d 1003 (Miss. 1999); S kaggs v. State , 676 So. 2d 897 (Miss. 1996).

9opinion or seeks to overrule t h e p r e c e d e n t of t his Court. Myers and a h ost of other cases 15

also stand f

or the proposition t hat each case is f a c t-specif ic and m ust be decided on its own

m erits. In apply ing that principle, t his Court has f o u nd witness preclusion to be an appropriate rem edy . In other f actual scenarios, witness preclusion was rejected.
In M o rris , we af

f irm ed a f i nding that a discovery violation was willf ul where the def endant gave the State a list of witnesses the m orning that the trial began. On the other hand, in Skaggs v. State , we reversed where the trial court struck the testim ony of a def

e nse w itness who of

f ered additional details that were not in reciprocal discovery

. . . . In this case, sim ilarly to Skaggs and in contrast to Morris , the d ef

ense provided d iscovery to the State, i ncluding sum m aries of witness testim ony . T he def ense attorney told the ju d g e t h a t Herrington later had provided him with an additional f act, which was quickly disclosed to the State, and nothing in the record indicates otherwise.
W i l l i a m s , 54 So. 3d at 215 (citing Morris , 927 S o. 2d at 747; Skaggs , 676 So. 2 d at 903

- 04). 16
FACTS AND PROCEDURAL HISTORY ¶25. A t trial, Overton was represented b y two attorney s—Jef f ery Ha r n e s s a n d C a r me n Brooks. H a r n e s s s t a ted he was not ready to proceed if Dunm ore and Cheatham could not testif y a nd r equested he be allowed to prof f e r their p roposed testim o ny , which the court allowed. Brooks argued Harness had been u nable to i nterview Dunm ore and Cheatham until

15 S ee su p r a f n . 14. See also Taylor v. Illinois , 484 U.S. 400, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988).

16 S ee a lso C o lem a n , 7 4 9 S o . 2 d at 1 0 0 7

. C o lem an d i d n o t tell h is atto rn ey ab o u t an alib i w itn ess u n til a w eek b ef o re tr i a l

. I

d . a t 1 0 0 8

. T h e a tto rn ey to ld th e S tate ab o u t th e w i tn ess an d d ilig en tly search ed f o r h er, b u t h e d i d n o t f

in d h er u n til th e f

in al d ay o f trial. We a f f irm ed t h e trial co u rt’s ex c lu sio n o f th e w itn ess. Id . a t 1 0 1 0

. T h e d ef

en d an t m isled th e atto rn ey b y p ro d u cin g a w itn ess at th e last m in u te an d o f f ered n o ex p l an atio n to in d icate t h at h e h ad d o n e so f

o r a n y p u rp o s e o t h er th an to g a in an u n f air ad v a n t ag e at trial. Id

. at 1 0 0 7

. 1 0the d ay b ef ore trial. The court f

ound Harne s s w as well-prepared f or t he case and had “obviously d one a lot of work.” The judge n oted that the f irst he heard about c o unsel being ill-prepared f

or t rial was af

ter the court’s ruling to exclude the witnesses. The judge stated,
“You sim ply can’t be all o w e d t o t ransact m a tters in this way . This is a court o f law, and there’s certain rules. T his i s such an egregious violation that the [ c]ourt is going to sustain the objection [ and exclude the witnesses].” Harness disavowed Brooks’s r epresentation that
Harness f irst had interviewed t he w itnesses the day b ef ore trial. Harness told the court he had interviewed Dunm ore “ prior to f i ling the m otions o n M a r c h t he 4th

. . . probably around February ” and Cheatham “one day last week.” 17 ¶26. The trial judge specif ically inquired o f t he witnesses and def ense counsel when these witnesses had been discovered. Dunm ore adm itted Overton had been out on bond since the
f irst week of his arrest and that s he occasionally stay ed a t his house. Furtherm o re, D unm ore

was able to see and talk to him the entire tim e bef o r e t r i a l

. Wh e n t he trial judge sought an explanation f

o r the late d isclosure, def

e nse counsel and the witnesses of f ered contradictory

statem ents. Dun mo r e s w o r e she f irst had talked to def

ense c ounsel the d ay bef ore trial. Def ense counsel represented to the court that he had i nterviewed Dunm ore a m o nth bef ore
t r i a l

. The other witness, Cheatham , related s he f irst had talked to def

ense c ounsel a wee k

17 T h e reco rd ref

lects th e d ef

en d a n t’s m o tio n s to su p p ress a n d to q u ash in d ictm en t w e re f iled o n F e b r u a r y 2 2 an d sch ed u led to b e h eard o n M arch 4

. O n M arch 4 , th e co u rt called th e m o tio n s f

o r h earin g , an d H arn ess stated th at O v erto n w as n o t p resen t. T h e co u rt ask ed w h ere O v e rto n w as. H arn ess rep lied th at O v erto n h ad b een in f o rm ed a b o u t th e h earin g an d k n ew to b e th e re. T h e co u rt co n tin u ed th e m atter u n til a later d ate a n d u ltim ately co n d u cted th e h earin g d u rin g a b r eak in th e trial. 1 1bef

ore trial. Regardless, n o excuse was provided to explain why n o notif ication o c c u

r r e d u ntil the m orning of

trial. 18
ANALYSIS ¶27. Overton’s discovery t ransgression m ore resem bles Morris and Colem an than Skaggs and William s . This is not a case where a disclosed witness altered o r supplem ented proposed

t e s t i mony prior to t rial, warranting a sanction less severe than exclusion. Here, Overton provided no discovery to the State other than untim ely f iling a pleading the e vening bef ore trial, identi f

y i n g two witnesses and providing a copy of Page’s identif ication c ard. The pleading, served on the State the m orning o f trial, contained n o inf orm a tion identif

y ing the witnesses other than a nam e—no address, no phone n u mb e r , no sum m ary of proposed testim o ny . It w as af

ter the State had concluded voir dire and had a bench conf erence that the
State was allowed to interview the two witnesses. Following its interview, the State objected, claim ing surprise and unf air prejudice. ¶28. W h ile recently discovered evidence, “ by itself , is insuf f icient proof that a discovery violation w as willf

ul and m otivated by a desire to obtain a tactical advantage,” 19 neither
Dunm ore nor Cheatham was of f e ring recently discovered evidence. 20 Like the def e ndants in

18 I n M yers , w e f o u n d ex c lu sio n im

p ro p er b ecau s e (1 ) th ere w a s n o ev id en ce d ef en se co u n sel w as aw a re o f

th e w itn e ss p rio r to d isclo su r e an d (2 ) th e w itn ess w as m ad e k n o w n to th e S tate b e

fo re tria l

. S

ee M yers , 1 4 5 S o . 3 d at 1 1 4 9 -5 0

. In sh o rt, in M y ers , th ere w as n o ev id e n c e to su p p o rt “trial b y am b u sh .”

19 M aj . O p . ¶ 1 0 (q u o tin g M yers , 1 4 5 S o . 3 d at 1 1 4 9 ).

20 I n both versions of events, Dunm ore was present when the of f icers arrived and was of f ered t o d i s p ute the S tate’s case regarding entry i nto t he hom e. C heatham i s Overton’s aunt, who claim ed she h ad hidden her m other’s gun in the bedroom beside the dresser under 1 2Colem an and Morris , Overton waited until th e l a s t m inute to reveal two witnesses—two

witnesses known of l ong bef ore trial. The record contains no e vidence that these witnesses

were unavailable to the def e ndant prior to their disclosure. Def ense counsel argued against excluding Dunm o re based on the f a c t h e r n am e was in the f i le, so the S tate could have expected her to be called—ignoring Overton’s duty to disclose Dunm ore earlier if she was expected t o t estif

y . Cheatham likewise gave conf l icting testim ony . F irst, she t estif ied she had given P age’s identif

ication card 21 to def

ense counsel “one day last week.” She l ater stated she had given the card t o Overton and Dunm ore and not t o def ense counsel. Nevertheless, she testif i ed she had talked to def

e nse counsel “one day last week” and that Overton had gone with h er to the lawy er’s of f ice. In deny ing Overton’s m otion f or new trial, the circuit judge
f ound no reasonable explanation f or t he l ate notice, and no objective jurist can d iscover a reasonable explanation in the record bef ore us. 22 ¶29. W h en initially called upon to rule on t h i s ma t t e r , according to the r ecord, the trial jud g e k new of the f

ollowing: (1) Overton’s unexplained f ailure to appear at the scheduled

som e boxes of shoes. She was prepared to testif y that she had gone to Overton’s h o m e th e d ay h e w as arrested an d h a d f o u n d P ag e’s b elo n g in g s , in clu d in g h is id en t if icatio n card , in th e b ed ro o m w h ere th e d ru g s an d g u n w ere f o u n d

. S h e also c laim e d t o h av e tak e n p ictu res o f w h at sh e f

o u n d

. Y et, all th a t w as d isclo sed to th e S tate w e r e th eir n am es an d a co p y o f th e card o n th e m o r

n in g o f trial.

21 W h ile C h eath am an d t h e atto r n ey s r ep eated ly ref

erred to th e card as a d riv er’s licen se, it w as an id en tif

i catio n card

. 22 S ee C o lem a n , 7 4 9 S o . 2 d a t 1 0 0 9 -1 0 (“A llo w in g a trial j u d g e th e d i scretio n to ex clu d e o th e rw ise ad m issib le e v id en c e o n th e b asis o f an in ten tio n al d is c o v ery v io latio n , ev en w h e n less d rastic san ctio n s are av ailab le, u n d erg ird s th e p r in cip les o f f a irn ess in o u r ad v ersarial sy stem .”). 1 3suppression hearing d ay s bef ore trial, (2) the u ntim ely d isclosure of these witnesses, (3) the witnesses and attorn e y o f f ering conf

licting testim ony r egarding t he day they were interviewed, and (4) O verton’s f a ilure to of

f er any explanation f

or the u ntim ely disclosure. ¶30. As in Myers , 23 the trial j udge here did not explicitly s t a t e t h a t O v e r ton’s conceded discovery violation was “willf ul,” but his statem ents that the court w as not going t o allow a “trial by am

bush” 2 4 and that this was such a n “egregious violation” a r e m o re than suf f icient

to satisf y t he will f

u l n e s s p r o n g. The m ajority p osits that the trial judge’s use o f the phrase “trial b y a m

bush” f ails to suggest the violation was willf ul. Respectf

ully , I do n ot subscribe

to that view. My appreciation of the word “am bush” d if f ers not f rom t he King’s English, as f ound in W

ebster’s

. See ambush , Web ster’s II N ew C o lleg e D ictio n a ry 3 5 ( 2 0 0 1 ) (“th e act

o f ly in g in w ait to attack b y su rp rise; a su rp rise attack m ad e f r o m a h id in g p lace”). ¶31. The m a

jority o pinion relies heavily upon the trial judge’s post-trial s tatem ent (m ade
f ort y - s e v e n d ay s a f

ter trial) that he “did not intend

. . . to i m p ute any thing im proper about counsel[ ’ s] handling

. . . where the f am ily , I think, cam e up with these witnesses r ight toward the end

. . . .” Even if accurate, such an of f -the-cuf f s t atem ent does not absolve the def endant of his day -of

-trial disclosure of witnesses that he and his attorney s knew about well bef ore trial, and f

or which neither gave an explanation. W hether the def endant or his a ttorney s were
p r o m p t e d by his f

am ily is o f inconsequential im port. The j udge w ent on to state that he

23 S ee M yers , 1 4 5 S o . 3 d at 1 1 4 7

. 24 S e e, e .g., Byrom v. State , 863 So. 2d 836, 870 (Miss. 2003) (“The day s of trial by am bush are over i n the Mississippi trial courts, whether i t be an am bush by the prosecution or by the def

endant.”); Lindsey v. State , 965 So. 2 d 7 12, 718 (Miss. Ct. App. 2007) (“One of the m ain purposes of

[ the rules of

discovery ] is to prevent trial by am b ush.”). 1 4wanted to review the caselaw cited by the parties, a s well as his trial n otes, bef ore ruling on the m otion f

or a new t rial. The record disputes the m ajority ’s c onclusion that “no r easonable
inf erence is to be drawn that Overton or his counsel willf u lly violated the discovery rules.” 25
The trial judge inquired as to who k new what when. H e received c o nf licting answers and was given no explanation f

or the v io l a t i on. Rather than excluding the w itnesses solely on

m ateriality , the judge considered the t im ing o f the disclosure, coupled with the circum stances surrounding it—including the responses he received during his inquiry

. STANDARD OF REVIEW ¶32. Preclusion of witnesses has been upheld, not o nly by t his Court, but also by the courts of other states and by the United States Suprem e Court. See Taylor , 484 U.S. 400 ( af f irm ing People v . Taylor , 491 N.E.2d 3 (I l l

. A pp. Ct. 1986)). 26 The United States Suprem e Court af f irm ed a trial judge’s discretion to exclude untim ely disclosed witnesses.
It m ay well be true t hat alternative sanctions are adequate and appropriate in m ost cases, but it is equally clear that th e y would be l ess ef f ective than the preclusion sanction and that there are instances in which t hey would perpetuate rather than lim it the pre

j u d i ce to t he State and the harm to the adversary process. O ne of the purposes of the d iscovery rule itself i s to m inim ize the r isk that f abricated testim o ny w ill be believed. Def endants wh o a r e w i lling to f abricate a d ef

ense m ay also be w illing t o f a bricate excuses f

o r f a i ling to com ply with a discove r y r e q u i rem ent. The risk of a contem pt violation m ay s e e m t rivial to a def

endant f acing the t hreat of im

prisonm ent f

or a term o f y ea r s . A d i s honest c lient can m islead an honest attorney , and there are

25 S ee M aj . O p . ¶ 1 3

. 26 T h e Illin o is ap p ellate co u rt h eld th at “[ t] h e d ecisio n o f t h e sev erity o f t h e san ctio n t o i m p o se o n a p arty w h o v io l ates d isco v ery ru les rests w i th in th e so u n d d iscretio n o f th e trial co u rt” an d “[ w ] h en d isco v ery ru les are v io lated , th e trial j u d g e m ay ex cl u d e th e ev id e n c e w h ich th e v io l atin g p arty w i sh es to in tro d u c e.” P eo p le v. T a ylo r , 4 9 1 N .E .2 d at 7

. 1 5o c c asions w hen an attorney assum es t hat the duty of loy a lty to the cli e n t

outweighs elem entary

obligations to the court.

. . . A t rial judge m a y certainly insist o n an explanation f or a par t y ’s f

ailure to com ply with a request to i dentif y his or her witnesses in advance of trial. If t hat explanation r eveals that the om ission was willf ul a n d m otivated by a desire to obtain a tactical advantage that would m inim ize the ef f ecti v eness of cross-exam ination and the ability to adduce rebuttal evid e n c e , it would be entirely consistent with the purposes of the Com p ulsory P rocess Clause sim ply to exclude the witness’ testim ony . Taylor , 484 U.S. at 413-15. 2 7 ¶33. A def

endant’s right to present testim ony is not “unf e ttered , ” f

o r h e ma y not “of

f er testim o ny that is incom

petent, privileged, or otherwise inadm issible under standard rules of evidence. The Com

pulsory P rocess Clause provides him with an ef f ective weapon, but it is

a w e a p o n that cannot be used irresponsibly .” Id. at 410. “The adversary process cou l d n o t f unction ef

f ectively without adherence to rules of p rocedure” governing the presentation of
f acts and argum ents. I

d. at 410-11. “The trial process would be a sham bles i f e ither party had

an absolute right to control the tim e and c o n t e n t o f his witnesses’ t estim o ny . ” Id. at 411. Notably , “[ t]he State’s interest in the orderly conduct o f a crim inal trial is suf f i cient to justif

y the im p o s i t i o n a nd enf

orcem ent of f

irm , though not alway s inf lexible, rules relating to the identif ication and presentation of evidence.” Id. ¶34. Unquestionably , all litigants have a right to present witnesses to advance their theory of a case, but ( e q u a l l y true) that r ight y ields to “the legitim ate d em ands of t he adversarial
sy stem .” See Colem an , 7 49 So. 2d at 1008. W itnesses can be excluded i f a willf ul discovery violation is “ m otivated by a desire to obtain a tactical a dvantage.” Morris , 9 27 So. 2d at 747.

27 J u stice Jo h n P a

u l S tev en s au th o red t h e o p in io n o f th e C o u rt. 1 6Our cases require a n explanation f or untim ely disclosures. See Colem an , 749 So. 2d at 1007. The record is devoid of

any reason or explanation by the def endant f or his violation of

our

r ules of t im ely disclosure. 28 Thus, i t should n ot be m echanically declared, without rea s o n , t h a t the trial judge abused his discretion in excluding these witnesses to prevent trial by am bush when no explanation was of f ered f or the conceded violation of our rules. 29 ¶35. Our cases m irror the declaration in Taylor that each case m ust be decided o n its own

m erits. See Taylor , 484 U.S. at 402. And, just as in Taylor , the appropriate s anction is within the trial j udge’s discretion, not subject to the arbitrary i mp u l s e o f an appellate court. W e review such decisions f

or abuse of

discretion only

. ¶36. Courts h a v e d e f

ined “ abuse of discretion” in m y riad way s. See Cargile-Schrage v. Schrage , 908 So. 2d 5 28, 529 (Fla. D i s t

. C t

. A p p . 2005) (f i nding n o abuse of discretion because “we cannot s ay that no judge in his right m ind would h ave” r uled as the trial judge did); a ccord Chase v. Austrian , 189 F.2d 5 55, 557 ( 4th C i r. 1951); People v . Hine , 650 N.W

. 2d 659, 6 64 (Mich. 2002) (“An a buse of discretion occurs when t he result is so palpably and grossly violative of f

act and logic that it evidences not the e x ercise of will but perversity of will, not t he exercise of judgm ent but the def iance of it.”). W hile the exact words m ay dif f er, the m eaning and the resultant test rem ain the sam e:

28 S ee C o o k v. H o m e D ep o t , 8 1 S o . 3 d 1 0 4 1 , 1 0 4 7 (M i ss. 2 0 1 2 ) ( “A r u le w h ich is n o t en f o r ced is n o ru le at all.”).

29 D ef ense counsel conf

essed that the State would s uf f er f rom the untim ely disclosure but argued that a continuance, rather than exclusion, was t he p roper r em edy

. A s th e v io latio n is co n ced e d , w e n e ed n o t assu m e th at O v erto n v io lated U n if o rm R u le o f C i rcu it a n d C o u n ty C o u rt P ractice 9 .0 4

. S

ee M aj

. O p . ¶ 1 1

. 1 7Discretion, in t his sense, is abused w hen the judicial action is arbitrary ,

f ancif ul, or unreasonable, which is another way of s ay ing t h a t d i s cretion is abused only where no reasonable m an would take the view adopted by the trial court. If reasonable m en could dif f er as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Delno v. Market St. Ry. Co. , 124 F.2d 965, 967 (9th Cir. 1942). ¶37. Em

ploy ing an abuse-of

- discretion standard, Mississippi a ppe l l a t e c o urts “m

ust af f irm the decision, regardless o f wha t a n y o f us individually m ight have ruled had we been the judge, unless t here is a def inite and f

irm c onviction that the court below com m i tted clear
error.” Ferguson v

. Univ. of Miss. Med. Ctr. , 179 So. 3d 1060, 1064 (Miss. 2015) (internal citations om itted). “Abuse of discretion is the m ost def erential standard o f review appellate

courts em ploy .” Ashm ore v. Miss. Auth. on Educ. Television , 148 So. 3d 977, 9 82 (Miss. 2014). ¶38. These principles are em bodied in the def

inition o f “ abuse of d iscretion” f or appellate courts, as f

ound in B lack’s Law Dictionary : “An appellate court’s s tandard f or reviewing a decision that is asserted to be grossly unsound, unreasonable, illegal, or u nsupported by the evidence.” Abuse of Discretion , Black’s Law Dictionary (10th ed. 2014). ¶39. In addition to f

a iling to appear at his suppression hearing and f iling a witness list on the evening bef

ore trial, Overton f

ailed t o provide the trial j udge with any e xplanation f or his violation of Rule 9.04. 30 W ith those f acts, coupled with the contradictory statem ents m ade

30 O v e r t o n s o u g h t d isco v ery o n D ec. 1 9 , 2 0 1 2 , p recip itatin g a recip ro cal d u ty to p ro v id e d isco v ery to th e S tate. O v erto n m ad e a R u l e 9

. 0 4 req u est f o r o ral statem en ts o f w i tn esses th e S tate in ten d ed to call. U R C C C 9 .0 4 (a). T h is im p o s ed a recip ro cal d u ty o n th e d ef en d a n t to tim ely d isclo s e to th e S tate statem e n ts o f w itn esses h e in ten d ed to call. U R C C C 9 .0 4 (c). O v erto n ’s u n tim ely f ilin g at 4 :5 5 p .m . th e d ay b ef o r e trial (M a r ch 1 4 , 2 0 1 3 ) co n tain ed a co p y o f P ag e’s id e n tif icatio n card an d o n ly th e n am es o f D u n m o re ( O v erto n ’s 1 8during the witnesses’ prof f ered testim ony , t h e trial judge excluded the untim e ly disclosed witnesses. Any num

b er o f tria l j u d g e s could h ave ruled the s am e as the trial judge in this

case. That being the case, can i t be verily argued that no judge in h is r ight m ind would have excluded these t wo witnesses, or t hat today ’s trial judge’s decision w as grossly u nsound or illegal? If the United States Suprem e Court f ailed to f i nd an a buse of discretion when a trial judge excluded a witness on sim ilar f acts, why should w e? See Taylor , 484 U.S. at 403-05 (noting the inconsistency of def ense counsel’s statem ent and the witness’s testim ony about when they m et and discussed the case). If we, as an a ppellate court, are to r em a i n true to our caselaw and rules, this decision by a trial judge—who received no reasonable explanation
f rom t he def

endant—should be af

f irm ed, f or as in Taylor , no other inf erence cou l d be drawn. 3 1
CONCLUSION ¶40. Justice m

ust be f airly and e v e n l y a d mi n i s t e r e d a n d requires we render im partial d e c i s i o n s . We are p resented w ith an a greed-upon violation of o ur r ules o f disclosure. The only issue is whether the sanction given com ports with existing law. It m akes no dif f erence that the nine of us m ay disagree about what any one of u s would h ave done h ad we been the

g irlf r ien d ) an d C h eath am (O v e r to n ’s au n t)— n o p h o n e n u m b ers, n o ad d resses, n o o th er id en t if y in g o r lo catin g in f

o rm atio n . T h e d i s c l o s u re is d ev o id o f an y su m m ary o f th eir p ro p o sed testim o n y . Wh en t h e f ilin g w as m ad e, th e S tate w as in v o lv ed in a sep arate trial an d d id n o t learn o f

th e f i lin g u n til th e m o rn in g o f trial (M arch 1 5 , 2 0 1 3 ) , d u r in g v o ir d ire.

31 S ee id . at 4 1 7 (“In v iew o f th e f

act th at p etitio n er’s co u n sel h ad actu ally in terv iew ed W o r ml e y d u r i n g th e w eek b ef o re th e trial b eg an a n d t h e f u rth er f act th at h e am en d ed h i s A n sw er to D isco v ery o n th e f i r st d ay o f t rial w ith o u t id en tif y i n g Wo rm ley w h i le h e d id id en t if y tw o actu al ey ew itn esses w h o m h e d id n o t p lace o n th e stan d , th e in feren c e th a t h e w a s d elib era tely seekin g

a ta ctica l a d

va n ta g e is in esca

p a b l e .”) (em

p h asis ad d ed ). 1 9trial judge in this c ase. W e are not trial-court judges. W e are an appellate court—a court of

error-correction. To warrant reversal, there mu s t b e a n error , n ot a m ere disagreem ent. 32 Today ’s decision disregards that distinction. ¶41. Unif

orm R ule of Cir c u i t a n d C o u n t y C o u r t Practice 9.04 c om m its sanctions f or witness-discovery violations to t he discretion of the trial judge, who h ad to m ake a decision hinging largely on c redibility

. 33 I n arguing f or a n ew trial, def

ense counsel “[ did] not object

to the [ c]ourt’s h andling of Rule 9.04,” but argued t he court f ailed to f ind t he violation was “willf ul and m otivated b y a desire to obtain a tactical advantage.” I would f ind t he trial judge did not abuse his d iscretion in excluding the two w itnesses, as t he record c ontains m ore than suf f i cient evidence f

o r t h e t r ial court to conclude the adm itted violation of our r ules—f or which the def

e ndant o f f ered no explanation—was willf ul and m otivated b y a desire to obtain a tactical advantage. WALLER, C.J., JOINS THIS OPINION.

32 S ee R a yn er v. B a r

b o u r , 4 7 S o . 3 d 1 2 8 , 1 3 4 -3 5 (M is s . 2 0 1 0 ) (R an d o lp h , J., co n cu rrin g in resu lt o n ly ) ( “A lth o u g h I d isag r ee w ith t h e d ecisio n o f th e B o ard

. . . o n e issu e b eco m es ab u n d an tly clear (b ey o n d all d isp u te), th at b ein g th at th e d e c isio n o f th e B o ard w as ‘f a irly d eb atab le,’ w h ich is ‘th e a n t i t h e s i s o f arb itrary an d cap ricio u s.’”). B u t cf. M aj

. O p . ¶ 1 8 (d isag reein g w ith th i s o p in io n th at th e trial co u rt f o u n d a d elib e rate d isco v ery v io latio n an d lab elin g an y

su ch f in d in g as “arb itrary ”).

33 “ E v alu a tio n s b ased o n d e m ean o r an d cred ib ility l ie “p ecu liarly w ith in a trial j u d g e’s p ro v in ce.” H

a rtfield v. S

ta te , 1 6 1 S o . 3 d 1 2 5 , 1 3 9 (M iss. 2 0 1 5 ); B o o k er v. S ta te , 5 S o . 3 d 3 5 6 , 3 5 8 ( M iss. 2 0 0 8 ). S

ee a lso R o c h ell v. S

t a t e , 7 4 8 S o . 2 d 1 0 3 , 1 1 0 (M iss.1 9 9 9 ) (“T h e trial j u d g e saw th ese w itn e sses testif y . N o t o n ly d id h e h av e th e b e n e f it o f th eir w o rd s, h e alo n e am o n g th e j u d iciary o b serv ed th eir m an n e r an d d em ean o r. . . . H e se n s ed th e in terp erso n a l d y

n am i cs b e tw e en th e law y ers an d t h e w itn esses an d h im self

. T h ese are in d isp en sab le.”). 2 0