IN THE SUPREME COURT OF MISSISSIPPI
NO. 2000-CT-00822-SCT
CHRISTOPHER MORRIS
v.
STATE OF MISSISSIPPI
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 08/11/1999 TRIAL JUDGE: HON. KENNETH L. THOMAS COURT FROM WHICH APPEALED: COAHOMA COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: DEREK D. HOPSON, SR. HOWARD BROWN ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART DISTRICT ATTORNEY: LAURENCE Y. MELLEN NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY IS REINSTATED AND AFFIRMED - 03/16/2006 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC.
WALLER, PRESIDING JUSTICE, FOR THE COURT:
¶1. Christopher Morris was convicted of simple assault upon a law enforcement officer and
sentenced to five years with one and one-half of those years suspended. Morris’s appeal was
assigned to the Court of Appeals, see M.R.A.P. 16(c), which reversed and remanded for a new
trial. See Morris v. State, ___ So. 2d ___, 2005 WL 2277614 (Miss. Ct. App., Sept. 20, 2005). Having considered Morris’s claims of prosecutorial misconduct, insufficient police
investigation and insufficiency of the evidence, we affirm the circuit court’s judgment.
FACTS
¶2. Suspecting Morris of stealing a pair of shoes from a shoe store, Officer Chambers, a
Clarksdale police officer, pursued Morris. According to Officer Chambers, Morris brandished
a gun. In response, Officer Chambers fired his gun at Morris. After he was apprehended,
Morris was charged with simple assault upon a law enforcement officer. Morris’s defense at
trial was that he did not have a gun in his possession and the police planted the gun in an attempt
to cover up an unjustified use of force by police.
¶3. On the day Morris’s trial was set to begin, defense counsel presented the State with a
list of nineteen previously undisclosed defense witnesses. After the State made an ore tenus
motion to exclude the defense witnesses, the circuit court held a hearing. The State argued the
late disclosure prejudiced the State because it did not know what the proposed witnesses’
testimony would be. Then defense counsel made a proffer of each of the proposed witnesses’
testimony. Some witnesses were permitted to testify; some were excluded; and some were
withdrawn by Morris.
¶4. Only two of the witnesses who were excluded are at issue on appeal. Tasha Leflore
would have testified that Officer Chambers asked Morris if he had stolen the shoes; Morris
responded that he had not; and then Morris walked away. She did not see Morris with a gun.
Nathaniel Parish would have testified that he saw a white-handled pistol in Officer Chambers’
2 back pocket – the same type of gun Morris allegedly pointed at Officer Chambers. The circuit
judge excluded these two witnesses, finding that their testimony would prejudice the State.
¶5. Morris was subsequently convicted of simple assault upon a law enforcement officer.
On appeal, Morris asserts as error: (1) discovery violations by the police department and
district attorney’s office warranting a reversal of the verdict or a new trial; and (2)
insufficiency of the evidence to support the verdict. On the discovery issue, Morris alleges
local police either knew of his potential witnesses and failed to disclose their identities to him
or should have known of the witnesses but did not because of an inadequate investigation.
Morris contends these actions or failures to act caused him to be late in designating these
witnesses. The Court of Appeals reversed and remanded for a new trial, finding that the circuit
judge abused his discretion in not allowing Morris’s alibi witnesses to testify. We granted the
State’s petition for writ of certiorari. See M.R.A.P. 17.
DISCUSSION
I. WHETHER THE CIRCUIT COURT ERRED IN EXCLUDING LEFLORE AND PARISH’S TESTIMONY.
¶6. The Court of Appeals held that it was error for the circuit court to exclude the
testimony of Tasha Leflore and Nathaniel Parish. The State asserts that (1) because Morris did
not raise this issue on appeal, the Court of Appeals should not have addressed it; (2) the actual
issue raised by Morris was whether discovery violations by the police and district attorney’s
office warranted a reversal of the circuit court’s verdict or a new trial; and (3) it was
inappropriate for the Court of Appeals to address this issue because issues not raised in an
3 appellate brief should not be considered on appeal. See Sanders v. State, 678 So. 2d 663,
666-70 (Miss. 1996); Boykin v. Boykin, 565 So. 2d 1109, 1112 (Miss. 1990); Palmer v.
Biloxi Regional Medical Center, Inc., 564 So. 2d 1346, 1360 (Miss. 1990).
¶7. The Court of Appeals held that, although Morris framed his argument as one concerning
discovery violations by the State, the real issue centered around the circuit court’s exclusion
of defense witnesses. “The crux of the issue is whether Morris was prejudiced by the trial
court’s excluding and/or limiting the testimony of certain defense witnesses . . . .” Morris,
2005 WL 2277614, at *2. We find the Court of Appeals properly addressed the issue because
it implicates a basic constitutional right – the Sixth Amendment’s Compulsory Process
Clause. 1 See, e.g., Taylor v. Illinois, 484 U.S. 400, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988).
¶8. In criminal cases which have issues pertaining to the exclusion of evidence or witnesses
due to discovery violations, we look to Mississippi Rule of Uniform Circuit and County Court
Practice 9.04(I), which provides that, if, prior to trial, the circuit court is made aware of one
party’s failure to comply with an applicable discovery rule, it has the discretion to allow such
evidence to be presented at trial, to grant a continuance, or to enter such an order as it deems
just under the circumstances. If the circuit court determines that the defendant’s newly-
discovered evidence or witnesses are prejudicial to the State, the State must ask for a
continuance so that it may review the evidence or interview the witnesses and thus become
prepared to counter the same. Even if the State does not ask for a continuance, the circuit
1 The Compulsory Process Clause bestows upon a criminal defendant “the right to compel the presence and present the testimony of witnesses.” Taylor, 484 U.S. at 409.
4 court cannot exclude the evidence. Carraway v. State, 562 So. 2d 1199, 1203 (Miss. 1990).
To do so would be to violate the Compulsory Process Clause.
¶9. There is an exemption to this procedure, however: if the circuit court determines that
the “defendant’s discovery violation is ‘willful and motivated by a desire to obtain a tactical
advantage,’” the newly-discovered evidence or witnesses may be excluded. Id. at 1203
(quoting Darby v. State, 538 So. 2d 1168, 1176 (Miss. 1989)); see also Taylor, 484 U. S. at
415. We find Morris’s discovery violation was willful and motivated by a desire to obtain a
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2000-CT-00822-SCT
CHRISTOPHER MORRIS
v.
STATE OF MISSISSIPPI
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 08/11/1999 TRIAL JUDGE: HON. KENNETH L. THOMAS COURT FROM WHICH APPEALED: COAHOMA COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: DEREK D. HOPSON, SR. HOWARD BROWN ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART DISTRICT ATTORNEY: LAURENCE Y. MELLEN NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY IS REINSTATED AND AFFIRMED - 03/16/2006 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC.
WALLER, PRESIDING JUSTICE, FOR THE COURT:
¶1. Christopher Morris was convicted of simple assault upon a law enforcement officer and
sentenced to five years with one and one-half of those years suspended. Morris’s appeal was
assigned to the Court of Appeals, see M.R.A.P. 16(c), which reversed and remanded for a new
trial. See Morris v. State, ___ So. 2d ___, 2005 WL 2277614 (Miss. Ct. App., Sept. 20, 2005). Having considered Morris’s claims of prosecutorial misconduct, insufficient police
investigation and insufficiency of the evidence, we affirm the circuit court’s judgment.
FACTS
¶2. Suspecting Morris of stealing a pair of shoes from a shoe store, Officer Chambers, a
Clarksdale police officer, pursued Morris. According to Officer Chambers, Morris brandished
a gun. In response, Officer Chambers fired his gun at Morris. After he was apprehended,
Morris was charged with simple assault upon a law enforcement officer. Morris’s defense at
trial was that he did not have a gun in his possession and the police planted the gun in an attempt
to cover up an unjustified use of force by police.
¶3. On the day Morris’s trial was set to begin, defense counsel presented the State with a
list of nineteen previously undisclosed defense witnesses. After the State made an ore tenus
motion to exclude the defense witnesses, the circuit court held a hearing. The State argued the
late disclosure prejudiced the State because it did not know what the proposed witnesses’
testimony would be. Then defense counsel made a proffer of each of the proposed witnesses’
testimony. Some witnesses were permitted to testify; some were excluded; and some were
withdrawn by Morris.
¶4. Only two of the witnesses who were excluded are at issue on appeal. Tasha Leflore
would have testified that Officer Chambers asked Morris if he had stolen the shoes; Morris
responded that he had not; and then Morris walked away. She did not see Morris with a gun.
Nathaniel Parish would have testified that he saw a white-handled pistol in Officer Chambers’
2 back pocket – the same type of gun Morris allegedly pointed at Officer Chambers. The circuit
judge excluded these two witnesses, finding that their testimony would prejudice the State.
¶5. Morris was subsequently convicted of simple assault upon a law enforcement officer.
On appeal, Morris asserts as error: (1) discovery violations by the police department and
district attorney’s office warranting a reversal of the verdict or a new trial; and (2)
insufficiency of the evidence to support the verdict. On the discovery issue, Morris alleges
local police either knew of his potential witnesses and failed to disclose their identities to him
or should have known of the witnesses but did not because of an inadequate investigation.
Morris contends these actions or failures to act caused him to be late in designating these
witnesses. The Court of Appeals reversed and remanded for a new trial, finding that the circuit
judge abused his discretion in not allowing Morris’s alibi witnesses to testify. We granted the
State’s petition for writ of certiorari. See M.R.A.P. 17.
DISCUSSION
I. WHETHER THE CIRCUIT COURT ERRED IN EXCLUDING LEFLORE AND PARISH’S TESTIMONY.
¶6. The Court of Appeals held that it was error for the circuit court to exclude the
testimony of Tasha Leflore and Nathaniel Parish. The State asserts that (1) because Morris did
not raise this issue on appeal, the Court of Appeals should not have addressed it; (2) the actual
issue raised by Morris was whether discovery violations by the police and district attorney’s
office warranted a reversal of the circuit court’s verdict or a new trial; and (3) it was
inappropriate for the Court of Appeals to address this issue because issues not raised in an
3 appellate brief should not be considered on appeal. See Sanders v. State, 678 So. 2d 663,
666-70 (Miss. 1996); Boykin v. Boykin, 565 So. 2d 1109, 1112 (Miss. 1990); Palmer v.
Biloxi Regional Medical Center, Inc., 564 So. 2d 1346, 1360 (Miss. 1990).
¶7. The Court of Appeals held that, although Morris framed his argument as one concerning
discovery violations by the State, the real issue centered around the circuit court’s exclusion
of defense witnesses. “The crux of the issue is whether Morris was prejudiced by the trial
court’s excluding and/or limiting the testimony of certain defense witnesses . . . .” Morris,
2005 WL 2277614, at *2. We find the Court of Appeals properly addressed the issue because
it implicates a basic constitutional right – the Sixth Amendment’s Compulsory Process
Clause. 1 See, e.g., Taylor v. Illinois, 484 U.S. 400, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988).
¶8. In criminal cases which have issues pertaining to the exclusion of evidence or witnesses
due to discovery violations, we look to Mississippi Rule of Uniform Circuit and County Court
Practice 9.04(I), which provides that, if, prior to trial, the circuit court is made aware of one
party’s failure to comply with an applicable discovery rule, it has the discretion to allow such
evidence to be presented at trial, to grant a continuance, or to enter such an order as it deems
just under the circumstances. If the circuit court determines that the defendant’s newly-
discovered evidence or witnesses are prejudicial to the State, the State must ask for a
continuance so that it may review the evidence or interview the witnesses and thus become
prepared to counter the same. Even if the State does not ask for a continuance, the circuit
1 The Compulsory Process Clause bestows upon a criminal defendant “the right to compel the presence and present the testimony of witnesses.” Taylor, 484 U.S. at 409.
4 court cannot exclude the evidence. Carraway v. State, 562 So. 2d 1199, 1203 (Miss. 1990).
To do so would be to violate the Compulsory Process Clause.
¶9. There is an exemption to this procedure, however: if the circuit court determines that
the “defendant’s discovery violation is ‘willful and motivated by a desire to obtain a tactical
advantage,’” the newly-discovered evidence or witnesses may be excluded. Id. at 1203
(quoting Darby v. State, 538 So. 2d 1168, 1176 (Miss. 1989)); see also Taylor, 484 U. S. at
415. We find Morris’s discovery violation was willful and motivated by a desire to obtain a
tactical advantage, and therefore the circuit court, even though it did not use the proper
procedure, properly excluded the evidence. The only reason proffered by Morris for failure
to designate these witnesses sooner was the police department’s failure to find these witnesses
and give the names to Morris through discovery. The record shows that, while defense counsel
had two hearings in federal court the week prior to Morris’s trial, defense counsel had
represented Morris since the arraignment which was held approximately six weeks prior to the
trial. Morris violated the discovery rule by failing to give the State the defense’s witness list
when the State provided its list to defense counsel. Defense counsel waited until the weekend
prior to the trial, which began on a Monday, to find defense witnesses. Finally, and most
importantly, instead of giving the list of defense witnesses to the State one or two days prior
to trial, defense counsel waited until the morning the trial began. To blame the prosecution or
the police department for his own failure to investigate and failure to abide by the discovery
rules is disingenuous at best. This issue is without merit.
5 II. WHETHER MORRIS’S RIGHT TO A FAIR TRIAL WAS VIOLATED BY THE STATE’S ALLEGED DISCOVERY VIOLATIONS AND THE POLICE’S ALLEGED INSUFFICIENT INVESTIGATION.
¶10. Morris contends that the State committed serious discovery violations by failing to
provide the names of witnesses potentially helpful to Morris’s case in a timely fashion. He
argues that the State’s delay in the production of those names forced him to produce a list of
witnesses he intended to call at the last minute before trial. However, the record is devoid of
any evidence of discovery violations or undue delay by the State in producing the identities of
potential witnesses, and Morris failed to present any evidence or testimony that would lead to
the conclusion that the State waited to produce a list of witnesses to the defense.
¶11. In response to defense counsel’s allegation of delay during the hearing on the State’s
motion to exclude Morris’s witnesses, the State asserted that it did not even know who some
of the proposed witnesses were or what connection they had with the case against Morris.
Specifically concerning the two witnesses at issue in this appeal, Leflore and Parish, Morris
simply made no showing how the police could have known of them and thus failed to disclose
them.
¶12. “For a discovery violation to require reversal there must be a showing of prejudice and
the non-disclosed material must be more than simply ‘cumulative.’” McCoy v. State, 811 So.
2d 482, 484 (Miss. Ct. App. 2002) (citing Prewitt v. State, 755 So. 2d 537, 541 (Miss. 1999);
Buckhalter v. State, 480 So. 2d 1128, 1128 (Miss. 1985)). There is nothing in the record
showing knowledge on the part of the State of either Leflore or Parish. Morris simply cannot
6 substantiate his claims against the State and, thus, cannot show that a discovery violation was
committed by the State or that he was prejudiced in any way.
¶13. Concerning Morris’s claim that an inadequate police investigation warrants reversal of
the verdict against him, we have held that the sufficiency or insufficiency of a police
investigation simply goes to the weight of the evidence, and it is for a jury to decide what to
believe. Cox v. State, 849 So. 2d 1257, 1267 (Miss. 2003). Even though Morris claimed
prejudice because the police and/or the DA’s office failed to find certain witnesses who would
have helped him in his defense, he put on no proof at trial of an alleged inadequate
investigation.
¶14. These claims are without merit.
III. SUFFICIENCY OF THE EVIDENCE.
¶15. Morris argues the evidence was insufficient to sustain a conviction against him. When
considering the sufficiency of evidence, we must decide whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Bush v. State, 895 So. 2d 836,
843 (Miss. 2005). The State produced evidence and witnesses tending to show that Morris did
indeed commit simple assault upon a police officer. While it is true Morris called his own
witnesses to contradict the State’s evidence, we cannot say that any rational trier of fact could
not have found the essential elements of the crime beyond a reasonable doubt, particularly
when the evidence is viewed in the light most favorable to the State. Accordingly, Morris’s
assertion of error is without merit.
7 CONCLUSION
¶16. We find the State did not commit any discovery violations that resulted in prejudice to
Morris; that the circuit court did not abuse its discretion in excluding Morris’s witnesses; and
that the verdict was amply supported by the evidence. We reverse the decision of the Court
of Appeals and reinstate and affirm the judgment of and sentenced imposed by the Circuit
Court of Coahoma County.
¶17. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY IS REINSTATED AND AFFIRMED.
SMITH, C.J., COBB, P.J., EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.