IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2014-KA-00869-COA ERIC PELLETIER A/K/A ERIC BLAKE PELLETIER APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 01/27/2014 TRIAL JUDGE: HON. JOHN HUEY EMFINGER COURT FROM W HICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: JAMES F. NOBLE III ROSS R. BARNETT JR. ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA W AKELAND BYRD DISTRICT ATTORNEY: MICHAEL GUEST NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF POSSESSION OF A SCHEDULE II CONTROLLED SUBSTANCE AND POSSESSION OF A W EAPON BY A FELON AND SENTENCED AS A HABITUAL OFFENDER TO TW ENTYFOUR YEARS FOR POSSESSION OF A SCHEDULE II CONTROLLED SUBSTANCE AND TEN YEARS FOR POSSESSION OF A W E APON BY A FELON, W ITH THE SENTENCES TO RUN CONCURRENTLY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY FINES OF $500,000 AND $5,000 DISPOSITION: AFFIRMED - 03/17/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. WILSON, J., FOR THE COURT:¶1. O n M a r c h 28, 2013, Flowood Police Departm ent Of f icer Ky le H im m ell initi a t e d a traf f i c stop of Eric Pelletier f or an inoperable tag light. Af ter Pell e t i e r g a v e perm ission, Of f icer H i mm ell conducted a search of P elletier’s vehicle. During his search, Of f icer Him m ell f

ound a pill bottle containing twenty

- f our dosage units of

lisdexam f

etam ine, also known as Vy

vanse, a Schedule II controlled substance; m etallic knuckles; a nd a switchblade knif e. Of f icer H im m e ll determ ined that Pelletier was a convicted f elon and placed him under

arrest f or possession o f a Schedule II c ontrolled substance and possession of a w eapon by a f elon. ¶2. A Rankin C ounty grand j ury returned a two-count i ndictm ent charging Pelletier with possession of m ore than twenty but less than f orty dosage units of V y

vanse and p ossession of a weapon (the m etallic knuckles) by a convicted f elon. In January 2014, a Rankin County jury convicted Pelletier on both counts. Af ter determ ining t hat Pelletier was a n onviolent habitual of

f en d e r , t h e trial court sentenced him to twenty -f our y ears f

or possession of a Schedule II controlled substance and ten y ears f or possession of a weapon as a f elon, all in the custody of the Mississippi D epartm ent of Corrections (MDOC), with the sentences to be served concurrently

. ¶3. On appeal, Pelletier argues that his trial counsel was i nef f ective and that the trial court im p roperly excluded a witness as a sanction f or a d i s c overy violation. W e af f i rm because Pelletier’s inef

f ective assistance claim is not capable o f adjudication on d irect appeal and the trial judge did not abuse his discretion by excluding the witness. FACTS AND PROCEDURAL HISTORY

2¶4. On March 28, 2013, Pelletier was traveling f rom Gonzales, Louisiana, to Starkville when he was s t o p p e d by Of f icer Him m ell f

or an inoperable tag light. W hile som e of the f acts i nvolved in the traf

f ic stop a re in dispute, there is no dispute that Pelletier gave Him m ell
perm ission t o s earch his vehicle. During t he search, Him m ell d iscovered three prescription pill bottles labeled in Pelletier’s nam e. However, o n e b o t tle’s c ontents did not m atch its label. The bottle c ontained twenty -f our dosage units of f

if ty mi l l i g r am Vy

vanse tablets, a Schedule II controlled substance, rather than the listed prescription of twenty mi lligram tablets of am phetam ine salts, also known as Adderall. ¶5. Him m ell also discovered t wo w eapo n s , a s w i t chblade knif e and m etallic knuckles. The location of the m e tallic knuckles i s in dispute. Him m ell t estif ied that they were in a shoe box on the back s eat, while Pelletier claim s that they were i nside a tool bag. Him m ell and Pelletier agree that the switchblade knif e was in the tool bag. ¶6. On August 15, 2013, Pelletier was indicted on one count of possession of m ore than twenty but less t han f

orty dosage units of a Schedule II controlled substance and one count of f e lon i n possession o f a weapon in ref erence to the m etallic knuckles. The State did not pursue charges related to the switchblade knif e. ¶7. Pelletier hired Jam e s Adam Powers as his attorney

. O n O c t ober 4, 2013, Pelletier acknowledged service o f his indictm ent and pled n o t g u i l t y . On the sam e day , the circuit

c o u rt entered a s cheduling order setting trial f o r January 21, 2014. Also on t he s am e d a y , Pelletier, t hrough Powers, requested discovery f rom the State pursuant to Unif o rm Rule of Circuit and C ounty C ourt P ractice 9.04. On Decem ber 9 , 2013, t he State provided Pelletier

3with the discovery required by

Rule 9.04 and f

orm a lly requested reciprocal discovery

. ¶8. However, P elletier produced no reciprocal d iscovery t o the State. On January 6, 2014, the trial court held a pre-trial conf erence, w hich Pelletier a ttended. During t he conf erence, Powers acknowledged to the cour t t h a t although the State had com plied with Rule 9.04, Pelletier h ad not provided the State with reciprocal disclosures. The court then inquired, “So do y ou not intend to call any witnesses o r introduce any eviden c e outside of y our client’s possible testim ony ? ” Powers responded t hat he m ight call Pelletier’s r oom m a te. The court ordered Pelletier to produce all reciprocal discovery , including the nam es of any witnesses that h e m ight call at trial, by 5 p.m . on January 7

. Nonetheless, P elletier provided the State with no nam es of

witnesses or any

other discovery

. ¶9. On January 7 , 2014, t he State m oved to am end the indictm ent to charge Pelletier as

a n onviolent habitual of

f ender. 1 Powers f

iled n o response, and the court g ranted the State’s

m otion to am end the indictm ent. ¶10. The c ase proceeded to trial as scheduled on January 2 2, 2014. Him m ell t estif ied that af ter he st o p p e d P e l l e t i er’s car, he noticed that its tag was expired, a n d dispatch inf orm ed him that t here was no record of the tag. He then approached the car and asked Pelletier f or his d river’s license and proof of insurance, b ut Pelletier inf o r me d him that his l icense was suspended and he could n ot provide proof of insurance. Him m ell testif ied that Pelletier was
extrem ely nervous and visibly t rem bling at t his p oint. Him m ell then inf orm ed him

that he

1 In 2 0 0 5 , P e lletier p l ed g u ilty to sep a r ate c h a r g e s i n Web ster C o u n t y o f stealin g a f o u r -w h eeler (g ran d larcen y ) a n d stealin g a red n o se p it b u l l (larcen y ). T h e Web ster C o u n ty C i rcu it C o u rt im

p o s ed sen ten ces o f f

iv e y e a r s in M D O C cu sto d y , w ith th ree y ears su sp en d ed , an d tw o y ears in M D O C cu sto d y , w ith th e sen ten ces to r u n co n cu rren tly

. 4was going to write him a w arning ticket f or the e xpired t a g . W h ile Him m ell and Pelletier

were talking, Corporal Josh Fuller, also of th e F l o w o o d Police Departm ent, arrived at the

scene and parked behind Him m ell’s patrol car. H i m m e l l testif ied that Pelletier’s nervousness “in c r e a s e d d

r a s t i c a l l y ” u

pon F uller’s arrival. Him m e ll asked Pelletier whether there were any weapons, drugs, or drug p a raphernalia in the vehicle. Pelletier responded no a s t o each, but “he did sm ile” when asked about drugs a nd paraphernalia. Him m ell then asked Pelletier f or consent to search the car, and Pelletier consented. ¶11. Prior to the search, Pelletier volunteered that he had m edication in t he car. Him m ell

a s k e d w h ether t he m edication was in proper c ontainers, and Pelletier said that it w a s . Him m ell t hen located three pill bottles in the center console of the car. The tablets in the f irst

two b ottles m atched their labels, but the tablets in the third bottle did not. A s noted above, the bottle’s label said A dd e r all, but it actually contained twenty -f our tablets of Vy

vanse, a Schedule II controlled substance. W hen Him m e ll con fr o n t e d P e l l etier w ith this f act, Pelletier volunteered that his room m ate could bring the correct prescription bottle to Flowood; however, the Flowood Police Departm ent has never been provided with such a bottle. ¶12. Him m ell then resum ed hi s search and f ound m etallic k

nuckles i n a s hoe box on the back seat and a switchblade knif e in a black tool b ag behind the p assenger’s seat. Pelletier stated that the m etallic knuckles belonged to h im and that he had purchased them about two

m onths e arlier at a f

l ea m arket. He stated that the knif e b elonged to his room m ate, whom he identif i e d only as “Bry an.” Pelletier’s statem ents r egarding the drugs and weapons were recorded in a video of the t raf f ic stop. Af

ter H im m ell com

pleted his se a r c h , h e p laced

5Pelletier under arrest.

¶13. Af ter the State rested its case-in-chief , the c o u r t i n q u i r e d o f Pelletier whether he understood and h a d been advised of h is right to testif y or not t estif

y , and Pelletier c onf

irm ed that he did and that he intended to testif y . The court inquired whether the State w ould seek

to introduce any of Pelletier’s prior convictions, and t he State indicated that i t would not. The court f

inally asked whether there were a ny other m atters t h a t n e e d e d to be taken up bef ore resum i ng trial. At that point, one of the prosecutors s tated that Powers had m entioned

som ething about “ witnesses” but that the State had not been provided with “notice of any witness.” Powers then stated t hat he i ntende d t o c a l l Chuck Cole, who he said w as “Mr.
P e l l e t i e r ’ s boss.” The court asked what the substance of Cole’s testim ony would be, an d Powers responded:
I e x pect h i m to testif

y to, a nd I haven’t discussed with Mr. C ole com pl etely y et, in f act, if I can h ave a f

ew m inutes to, I expect him t o testif y t hat he’s Mr. Pelletier’s boss [ and t hat on March 28, 2013,] he let Mr. Pelletier borrow a tool bag and that in that t ool bag w a s [ the m e t allic knuckles] that belongs to Mr. Cole

. . . . A nd I believe he’ll also testif y that Mr. P elletier would have had no way of knowing that [ t h e me t a l l ic knuckles] w e r e [ i n] that tool b ag. Mr. Pelletier just borrowed the tool bag to work on his car. ¶14. The State responded that this was the f i r s t t i m e it had ever heard t he nam e Chuck Cole. Powers stated that he had only m et Cole that day

and that Cole had com e to the trial “in support of Mr. Pelletier,” not intending to testif y . Pelletier then interjected that he had

sent Powers his “whole witness list mo r e t h an a w eek ago.” Pelletier stated that he sent Powers the list the day of the pre-trial conf erence, af ter the c o urt adm o nished him to f inish discovery

. Powers then a cknowledged that Pelletier sent him “a list o f several people,” but

6he thought t hat occurred “probably about f ive day s ago.” Powers said that he had not “had

a chance to talk to all of

” the people on the list, and adm itted that he had not disclosed any

nam es of potential witnesses to the State. Powers “guess[ e d] m ay be he should have dis closed the p ossible witnesses,” b ut he “didn’t m ake the f inal determ ination that [ he] would actually put Mr. Cole on [ until] af ter speaking to him the f

irst tim e” on the day of trial. The court then took a short recess to allow the State to talk to Cole. See URCCC 9.04(I). ¶15. Af ter interviewing Cole, the State o bjected t o allo w i n g h i m t o t e s t if y . T he State argued that Cole and his story were known to the def ense and should have been disclosed. The State inf

orm ed the court t hat it had learned f r om speaking to Cole that he w as actually Pelletier’s stepfather

as well as his boss and had been m arried to Cole’s m o ther f or eleven
y ears. T he State f

u r ther s tated that Cole claim ed that h e loaned Pelletier the canvas bag f ull of tools and that the m etallic knuckles were in the bag. According to t he State, Cole claim ed that he had purchased the knuckles at a f lea m arket. The State argued that it had “no way to check[ ]out this story

at all” given its late disclosure. ¶16. The cou r t f

o u n d t h a t C ole was “ a w itness [ who had] been known to [ Pelletier] f or

som e while” and w ho “should have been d i s c l o s e d

. ” The court reasoned t hat “ a t this late date the State is without the ability to r e ally e f f ectively cross-exam i ne the witness or to do
any i nvestigation in order to be a ble to rebut the witness’[ s ] testim ony .” The c ourt c oncluded that disclosing Cole f

or the f i rst tim e af

ter the State h a d r ested i ts case was “basically trial by am b ush” and that Pelletier “really of f e red no j ustif

ication o r excuse o r reason as to why [ Cole’s] nam e . . . h a[ d] not bee n disclosed p reviously .” Accordingly , the court excluded

7Cole’s testim ony .

¶17. Pelletier then took the stand. He claim ed t hat C ole loaned him the tool bag so that he would have som e t ools with h im in t he event he had car p roblem s on his trip

. P e lletier claim ed he had n o i dea t hat the m etallic knuckl e s w ere i n the bag. Pelletier said that Cole welds m etallic knuckles to Harley -Davidson m otorcy cles as ornam ents. ¶18. W i th respect to the V y vanse, Pelletier claim ed that the m e dicine a ctually belonged to his room m ate, identif

ied only as “Bry an.” Pelletier claim ed that af ter he had already driven half way to Jackson, Bry a n called and said that he had lef t his m edication in Pelletier’s car. Pelletier said t h at it was t oo l ate f or him to turn around, b ut he was worried that he m ight get in trouble if he w ere c aught with Bry an’s pills. He t hen p ut B ry a n’s pills in one of his own prescription bottles “so he wouldn’t get in trouble.” ¶19. On cross-exam ination, Pelletier adm itted that the switchblade knif e was his, although he w as quick to add, “I was not charged with that k nif e.” He denied that t h e m etallic knu c k l e s w e r e h i s. He said he would like to “ g et a pair [ of m e tallic knuckles] welded on [ his] m otorcy cle,” but had not done so “y et because of a l l this.” Pelletier also claim ed that his “ l awy er actually ha[ d] [ Bry a n’s] bottle and [ Bry an’s] paperwork” f or the V y vanse. This

was apparently a ref

erence to a lawy er w ho r epresented him prior to P o w e r s . Pelletier volunteered that his “m om [ could] tell [ the prosecutor] the other lawy er’s nam e.” Pelletier’s

room m ate was never identif i ed other than as “Bry a n.” ¶20. The jury then deliberated a nd f o und P elletier g uilty on both charges. Af ter f inding that Pelletier w a s a n o n v iolent habitual of f ender, t he court s e ntenced him to twenty -f our

8y ears f

or possession o f a Schedule II controlled substance and t en y ears f or possession o f a weapon as a f

elon, all in MDOC custody , with the sentences to be served concurrently

. ¶21. Pelletier hired new c ounsel to f ile post-trial m otions. He f iled a m otion f

o r judgm ent notwithstanding the verdict, in which he argued that Powers provided inef f ective assistance of counsel. The circuit c ourt denied Pelletier’s post-trial m otions, and Pel l e t ier tim ely appealed. On appeal, he r aises two issues: inef f ective assistance of counsel and the exclusion of Cole as a witness. ANALYSIS I. Ineffective Assistance of Counsel ¶22. As our Suprem e Court has explained,

Ordinarily , inef

f ective-assistance-of

-counsel claim s a re m or e appropriately b rought during post-conviction p roceedings. This is be c ause during direct appeals the Court is lim ited to the trial court record in its r eview of the c laim , and there m ay be instances in which insuf f icient evidence exists within the record to address the c laim adequately

. In s uch a case, the appropriate p r o c e dure is to deny relief , preserving the def

endant’s right to argue the issue through a petition f or post-conviction relief

. Archer v. S

tate , 986 So. 2d 951, 9 55 (¶15) (Miss. 2008) (citations om itted). This C ourt “m ay address such claim s o n direct appeal only if (a) ‘the issues are based on f acts f ully apparent f rom the record,’ or (b) the ‘ parties stipulate that the record is a d equate,’and we ‘determ ine that a dditional f

i ndings o f f

act by a trial judge are not needed.’” Shinn v
. State , 174 So. 3d 961, 9 65 ( ¶11) ( Miss. Ct. App. 2015) ( q uoting Sandlin v. State , 156 So. 3 d 8 13, 819 (¶20) (Miss. 2013); Read v. State , 430 So. 2d 832, 841 (Miss. 1983)) (alterations om itted). ¶23. On appeal, Pelletier argues that h is trial c ounsel was inef f ective b ecause he f

ailed to

9call “Bry an” as a witness, because his f ailure to com

ply with the discovery rules resulted in Cole’s exclusion a s a witness, and because he f ailed to oppose the State’s m otion to am end the indic t me n t

. H o w e v e r, on the record bef ore us we know nothing about “Bry an,” if he

even exists, or why he was not called as a witness. Nor is the recor d c l e a r a s t o w hy Cole

was not disclosed to the State in a tim ely f ashion or what exactly he m ight h ave s aid had he been able to testif

y . Put sim

ply , t h e c l a i m is not “based on f acts f ully apparent f

rom the record.” S

andlin , 156 So. 3d at 819 (¶ 20). Theref ore, we af f irm the circuit court’s denial of relief on Pelletier’s i nef f e ctive assistance claim

. Pelletier m ay a ssert such a cla i m i n a

m otion f or post-conviction relief

. See id.
II. Ex c lusion of Witness Testim o ny ¶24. “ The standard applied f or appellate review of a trial court’s sanction f o r discov e r y abuses is ‘whether the trial court abused its discretion in its decision.’” Lipsey v. State , 50 So. 3d 341, 346 (¶12) (Miss. C t. App. 2010) (quoting Gray v. State , 799 So. 2d 53, 60 (¶26) (Miss. 2 001)). “Upon weighing all relevant f actors in the c ase, unless there is clear error in judgm ent as to the sanctions im posed f or violation o f t he discovery rule, this Court will af f irm the im posed sanction.” McGregory v. State , 979 So. 2d 12, 17 (¶7) (Miss. Ct. App. 2008). ¶25. Pelletier argues that the trial court’s exclusion of Cole as a witness was a n abuse of discretion. He argues that the r uling violated h is Sixth Am endm ent right to comp u l sory process under Taylor v. Illinois , 484 U.S. 4 00 (1988), a n d Mississippi caselaw interpreting Rule 9.04. Pelletier contends t hat Cole’s exclusion was not an a ppropriate sanction because

1 0his discovery v i olation was t h e result of Powers’s “abject f ailure to adequately r epresent” him

. However, given t he egregiousness of Pelletier’s v iolation of basic r ules of d iscovery , the trial judge’s decision to exclude Cole was not an abuse of discretion. ¶26. To begin with, Taylor itself , which also i nvolved the exclusion of a witness who w as disclosed f

or the f irst t im e during trial, specif ically r ejected the ar g u me n t t h a t it would be “unf air to visit the sins of the lawy er upon his client.” Taylor , 484 U.S. a t 416. As the Court explained, The argum ent that the client should n ot be h eld responsible f or his lawy er ’ s m isconduct strikes at the heart of t he attorney -client relationship.

. . . Moreover, given the protections af f orded by the attorney -client privilege and the f act t hat extrem e c ases m ay inv o l v e u n scrupulous conduct by both the client and the lawy er, it would be highly i m p r a c t i c a ble to require an investigation into their relati ve responsibilities [ for failing t o disclose a witness] before a

p plying the sanc t i on of preclusion. In responding to discovery , the client has a d uty to be candid and f

o rthcom ing with the lawy e r, and when the lawy er responds, he or s he speaks f or the client. Putting to one side the exceptional cases in which counsel is inef f ective, the client must accept the co n sequences of the lawyer’s decision

. . . not to d isclose the identity of certain witnesses in advance of trial. Id. at 417-18 (em

phasis added). ¶27. Taylor also recognized that “[ i]t is

. . . reasonable to presum e that there is som ething suspect about a def

e nse witness who is not identif i ed until af

ter the 11th hour has passed.” Id. at 414. Theref

ore, a “ trial judge m ay certainly insist on an e x p l a nation f or a party ’s f ailure to com

p ly with a r equest to identif

y his or her w itnesses in advance of trial.” Id. at 415. T hat is precisely what the t rial judge did in this c ase—and there was n o legitim ate

excuse f or the f ailure, only disagreem ent between Pelletier and P owers as to wh e t h e r Pelletier had given Powers a list of potential witnesses f

ive or sixteen day s prior to trial.

1 1¶28. Taylor goes on t o s ay t hat if the def e n dant ’ s “ e x p l a n ation r eveals that the om ission

was w illf ul and m otivated b y a desire t o obtain a tactical a dvantage t hat would m inim ize the ef f ectiveness of

cross-exam ination and the ability to adduce rebuttal evidence, it would be entirely consistent with the purposes of the Co m p u l s o r y Process Clause sim ply t o exclude the witness’[ s ] testim o ny .” I d. at 415. But as our own Suprem e Court s u bsequently explained, Taylor does not purport to identif y the o nly circum stances in which the sanction

m ay be im

posed: “If a p a rticular rem edy ‘would be consistent’ with the Constitution under

a particular se t o f c i rcum stances, it i s a stretch of legal gy m n astics to a rgue, as [ the def endant] does, t hat a particular rem e d y i s perm issible only in that set of circum stances.” Coleman v
. State , 749 S o. 2d 1003, 1010 ( ¶ 1 7 ) (Miss. 1999) (quoting T aylor , 484 U.S. at 415). “ Allowing a trial judge t he discretion to exclude o therwise adm issible evidence on the basis of a n intentional discovery violation, even when less drastic san c t ions are available, undergirds the principles of f airness in our adversarial sy stem .” I d. at 1009-10 (¶17). ¶29. In Houston v. State , 752 S o. 2d 1044 (Miss. Ct. A p p . 1 9 9 9 ) , a c a se t hat in som e

n o t a b l e respects m irrors this one, this Court af f irm ed the trial c ourt’s e xclusion of an alib i witness as a s anction f

or the def e ndant’s attorney ’s intentional discovery v iolation, r easoning as f o llows:
Not only did d ef

ense counsel com

pletely ignore the State’s request f or alibi def ense i nf orm ation, the attorney could n ot even m ake a prof f er of the exact nature of these witnesses’ alibi inf orm ation on the mo r n i ng of trial b ecause, even at such a l ate date, he had not interviewed these potential witnesses to discover the nature of t heir story

. It is dif f icult to envision a m o re f

lagrant and wilf ul disregard f

or the rules governing t he conduct of a crim inal prosecution. If the rules of discovery relating to alibi def enses can be so blatantly

ignored without any consequence bey ond a possible continuance to perm it the State to

1 2prepare to m eet the alibi evidence, then

. . . the rule m ight as well be deleted

f rom the books. Id. at 1047 (¶13). ¶30. This case does not involve an alibi witness, but the sam e concerns apply

. Even if we credit f or the sake of a rgum ent Pelletier’s unsworn assertions that he gave Powers the nam es of witnesses just b ef

ore the f inal, court-ordered deadline f or disclosure, the f

act rem ains that, like t he attorney in H

ouston , Powers sim

ply ignored t he State’s discovery requests a nd, even af ter the State had rested its case, c ould not prof f er t he exact nature of Cole’s testim ony . “It is dif f icult to envision a m ore f lagrant and w illf

u l disregard f

or the ru l e s g overning the conduct of a crim inal prosecution.” Id. This intentional violation of the discovery rules was

a s u f f icient ground to s upport the sanction of exclusion. Id. Contrary to P elle t i e r ’ s argum ents on a

ppeal, the t rial judge was not required to attem pt a m i d-trial “ i n v e s t igation into [ Pelletier’s and Powers’s] relative responsibilities bef ore a p p l y ing t he s anction of
pre c l u s i o n .” Taylor , 484 U .S. at 418. Rather, Pelletier “m ust accept the consequences of [ Powers’s] decision

. . . not to disclose the identity of certain witnesses in advance of trial.” Id. ¶31. To ret u r n t o H

o u s t o n ’s f

inal concern, i f the requirem ents of Rule 9.04 “can be so blatantly ignored without any consequence bey ond a possible continuance

. . . , then

. . . the rule m ight as well be deleted f rom the books.” Houston , 752 So. 2d a t 1 047 (¶13). The issue in this case is whether exclusion of a witness is a perm issible sanction when the def endant

1 3withholds the identity o f the witness 2 until a fter the State has rested its case and then of f ers absolutely no legitim a te excuse f or his blatant violation o f the d iscovery rules. If the law did

not perm it the sanction of exclusion of t he witness even on these f acts, then there would be
very l ittle reason or incentive f o r a crim inal def

endant to com

p ly with Rule 9.04. ¶32. Fin a l l y , P e l l e t i e r a lso argues that the State f ailed to com

ply with Rule 9.04(I)(2) because, af

ter interviewing Cole, the State d id not request a continuance. At that point, the trial judge heard brief argum ent, including the State’s position that there w as n o way it could investigate C ole’s story given the tim ing of his disclosure. H aving considered the issue, the trial judge declined t o “delay the trial in t his m a tter.” Gi v e n t hat t he trial judge actually considered whether to d e lay the trial, the State’s f ailure to m ake such a request is m oot. In
any event, “[ w]hile it is t rue that a continuance m ust be s ought b ef

ore a p arty can com

plain of the adm ission of previ o u s l y u n d i sclosed e vidence, a r equest for a continuance is not a prerequisite to the exclusion of such evidence, and the failure t o request a c ontinuance does

not waive an objection that has been sustained .” De La B eckwith v
. State , 707 So. 2d 547, 574 (¶101) (Miss. 1 997) (em phasis added). Unde r R u l e 9

. 0 4(I), “a s urprised party should ordinarily request a continuance when conf r o n ted with undisclosed evidence,” but “ the failure to do so does not abro g a te the trial court’s discretion t o exclude such evidence in
certain circumstances .” Id. (em phasis added). In appropriate cases, “the e xclusion of testim o ny [ is] an option well within t he trial court’s d iscretion” even if “the prosecution did

not req u e s t a continuance.” Id. at 574-75 (¶102) (af f irm ing the exclusion of a def ense

2 T h is c ase d o e s n o t ev en in v o lv e a w i tn ess w h o w as d i f f icu lt to f i n d o r w h o cam e to th e d ef en d an t’s atten tio n sh o rtly b ef o r e trial. A g ain , C o le is P elletier’s step f ath er an d b o ss. 1 4witness who, like Cole, was disclosed only af ter the State rested its case-in-chief )

. ¶33. Having considered P elletier’s argum ents, we do n ot ignore the possibility t hat he was prejudiced by his attorney ’s f ailur e t o c o mp l y with the discovery rules. A s noted above, Taylor held that “the client m ust accept the consequences of t he lawy e r’s decision

. . . not to disclose the identity of certain witnesses in advance of trial,” but it d id so while “[ p]utting

to one side the exceptional cases in which counsel is inef f e ctive.” Taylor , 484 U .S. at 418. As we have already h eld, Pelletier’s claim of i nef f ective assistance is a subject f or a PCR

m otion, not direct appeal. P owers’s alleged responsibility f or discovery v iolations certainly

m ay be raised as part of a com p rehensive inef

f ective assistance claim

. I nd e e d , t h a t is the

nature of P elletier’s argum ent on appeal: that he was prejudiced by Powers’s f ailure to f ollow the rules. That i s a claim of inef f ective assistance of c o unsel; the claim m ay or m ay not be viable, but its u n derly ing f acts require f

urther dev e lopm ent i n a PCR m otion. More im p ortant, that claim m

us t b e d i s t i nguished f

rom t he issue p roperly bef ore us on direct appeal: whether the trial judge a bused his discretion on the f acts presen t e d t o h i m by im p osing a serious sanction f or a blatant and intentional violation of t he discovery rules. W e f ind no abuse of

discretion. Theref

ore, we af f irm

. ¶34. T H E J U D G M E N T O F T H E R A N K I N C O U N T Y C I RCUIT COURT OF CONVICTION OF POSSE S S ION O F A S CHEDULE II CONTROLLED SUBSTANCE AND POSSESSION OF A WEAPON BY A F ELON AND SENTENCE A S A H ABITUAL OFFENDER OF TWENTY-FOUR YEARS FOR P OS S E S S I O N O F A SCHEDULE I I CONTROLLED SUBSTANCE A N D T E N YEARS FOR POSSESSION OF A WEAPON BY A FELON, WITH T H E S E NTENCES TO RUN C O N C U R R E N T L Y , A L L I N T H E C U S T O D Y O F T H E M I S S I S S I P P I DEPARTMENT OF CORRECTIONS, AND TO PAY FINES OF $500, 0 00 AND $5,000, IS AFFIRMED. A LL COSTS OF THIS APPEAL ARE A S SESSED TO THE APPELLANT.

1 5LEE, C.J., G RIFFIS, P.J., FAIR AND GREENLEE, J J., CONCUR. JAMES, J.,

CONCURS IN PART WITHOUT SEPAR A T E W R ITTEN OPINION. ISHEE, J., DISSENTS I N PART WIT H S E PARATE WRITTEN OPINION, JOINED BY IRVING, P.J., BARNES, CARLTON AND JAMES, JJ. ISHEE, J., DISSENTING IN PART: ¶35. W i th respe c t t o the m ajority , I m ust dissent regarding the af f irm a nce of

Pelletier’s conviction of f

elon i n possession of a weapon. The m ajority ref erences Pelletier’s contention “that Cole’s exclusion was not an appropriate s anction because h is discovery violation was the result of Powers’s ‘abject f ailure to a dequately represent’ him

. ” T o be clear, I m ake no determ ination as t o Powers’s ef f icacy as Pelletier’s lawy er. A s stated previously , m atters of inef f ective assistance of counsel a re best reviewed i n a P CR proceeding. Aguilar v. State , 847 So. 2d 871, 878 (¶17) (Miss. Ct. App. 2002) (citations om itted). ¶36. The question here, rather, is whether or n ot the trial court’s decision to e xclude Cole’s testim o ny under R

ule 9.04(I) was the prope r r e medy

. W e have previously held that “a violation of Rule 9.04 is considered harm less error unless it a f f irm atively appears f

rom the entire reco r d t h a t t he violation caused a m iscarriage of justice.” Mosely v. State , 4 So. 3d 1069, 1 074 (¶10) ( Miss. Ct. App. 2009) (quoting W yatt v. City of

Pearl , 876 So. 2d 281, 284 (¶10) (Miss. 2004)). In t he i nstant case, I cannot f ind that the late introduction of Cole a s a witness “caused a m iscarriage of justice.” Id

. ¶37. The State was given the opportunity to interview Cole. The record ref lects that Cole’s testim o ny would have served to corroborate P elletier’s theory of def e nse – that the m etallic knuckles discovered in the v e hicle were Cole’s, not Pelletier’s, and that they had been purchased b y Cole at a f lea m a rket when Cole and Pelletier were together. The State’s

1 6objection hinge d o n i ts contention that it had no w ay of i nvestigating C ole’s assertion that

the m etallic knuckles were bought by him at a f lea m arket. However, the State was already

arm ed with the video recording p resented t o the jury sh o w ing Pelletier m entioning to the

a r r e s t i n g of

f icers that he, not Cole, m ay have purchased the m etallic knuckles at the f lea

m arket. Accordingly , the State had evidence i n its possession wi t h w h i c h it could have discredited Cole’s testim ony . ¶38. Pelletier, on the other hand, had his t estim o ny and nothing else to support his theory of def ense with regard to t he m etal l i c k n u c k l e s . H e testif ied on his own behalf and spoke regarding the m e tallic knuckles belonging to Cole. Pelletier had a r ight to call relevant and

m aterial witnesses to help support his case and c orroborate h is testim ony . This i s p articularly

so when, a s noted previously , the State introduced e v idence to the jury showing that Pelletier initially indicated that t h e m e tallic knuckles m a y have been his. Hence, the a d dition of corroborating testim ony

could have m ade a m a terial dif f erence in how the jury

viewed the

case. I f ind that t he discovery violation was harm l ess error and that the exclus i o n of the testim o ny constituted p rejudicial error f o r P elletier. Hence, I would reverse and rem and the conviction of

f elon in possession of

a weapon. IRVING, P.J., BARNES, CARL TON AND JAMES, JJ., JOIN THIS OPINION.

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