Preston Overton v. State of Mississippi

195 So. 3d 715, 2016 WL 1701819, 2016 Miss. LEXIS 174
CourtMississippi Supreme Court
DecidedApril 28, 2016
Docket2013-CT-01236-SCT
StatusPublished
Cited by12 cases

This text of 195 So. 3d 715 (Preston Overton v. State of Mississippi) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Preston Overton v. State of Mississippi, 195 So. 3d 715, 2016 WL 1701819, 2016 Miss. LEXIS 174 (Mich. 2016).

Opinions

ON WRIT OF CERTIORARI

DICKINSON, Presiding Justice,

for the Court:

¶ 1. A jury convicted Preston Overton of possession of cocaine and possession of a firearm by a convicted felon. The day before trial, the defense disclosed its intent to call two witnesses, but the circuit judge excluded their testimony as a discovery sanction. Because the record lacks any evidence that the defense made its late disclosure to gain a tactical advantage, the circuit judge erred by excluding Overton’s witnesses. So we reverse Overton’s convictions and remand this case for a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 2. On July 12, 2012, Lieutenant George Pirkey and Deputy David Washington responded to suspected drug activity at Overton’s residence. The versions of what occurred at the residence differ. Accord-[717]*717mg to the officers, they knocked on the door and Overton invited them inside. Overton’s girlfriend, Christine Dunmore, was present. Once inside, Overton signed a consent to search the home, and the officers found cocaine, a .38 caliber handgun, and a document bearing Overton’s personal information in one bedroom. The officers placed Overton under arrest, and Overton signed a written statement admitting the cocaine belonged to him.

¶ 3. According to Overton, however, the officers entered his home uninvited, looking for Jeremy Page. Overton explained that Page was renting a bedroom in the home but was not home at the time. Unaware of the cocaine’s presence, Overton consented to the search and, when the officers found the cocaine and handgun, he informed the officers that the bedroom belonged to Page. He also told the officers that the gun belonged to his grandmother, who had passed away in 2009, and that he was unaware that it was in the house. Finally, according to Overton, he signed the written confession only because the officers threatened to arrest Dunmore if he did not confess.

¶4. On March 15, 2013, having heard these conflicting versions of the search and arrest, a jury convicted Overton for possession of cocaine and possession of a firearm by a convicted felon. He appealed, arguing that the circuit judge had erred by excluding the testimony of two defense witnesses.1

¶ 5. The day before trial, the defense filed a witness list, indicating its intent to call Dunmore and Eunice Cheatham. During voir dire the next morning, the State objected that it had been blindsided by these witnesses. The defense suggested that a continuance would be proper. After the judge allowed the State’s investigator to interview Dunmore and Cheat-ham, the State asked that they be precluded from testifying, and the circuit judge agreed. The record does not reflect why these witnesses were disclosed on the eve of trial. And the circuit judge’s only comment on the reason was that:

The Court did not intend in any way to impute anything improper about counsel handling this matter, and it was a matter where the family, I think, came up with these witnesses right toward the end there, and so it’s a situation like that.

¶ 6. The judge did allow Overton to proffer the witnesses’ testimony. Dunmore corroborated Overton’s version of the search and arrest. She explained that the police had entered without knocking or invitation, that they had asked for Page, that Page had lived in the house, and that Overton had informed the police that they had found the cocaine and gun in Page’s bedroom. She confirmed that the officers had threatened to arrest her if Overton would not confess. She explained that the document bearing Overton’s information was found in Page’s bedroom because Overton had used the room for storage before he rented it to Page. Finally, Dun-more indicated that she first had talked to Overton’s counsel the day before trial. But counsel then stated that he had interviewed her some time in February 2013.

¶7. Cheatham — Overton’s aunt — stated that Overton’s home previously had belonged to her mother, his grandmother. She explained that the gun belonged to her mother, and that she had put it in the bedroom before Page rented a bedroom in 2008 because her mother was suffering from Alzheimer’s and she feared for her mother’s safety. She confirmed that Page lived in the home and explained that, after [718]*718Overton was arrested, she had" found Page’s belongings in the bedroom, including clothes, shoes, and identification. She stated that she first had told Overton’s lawyer this information some time during the week before trial.

¶8. The Mississippi Court of Appeals concluded that “in light of his confession and the length of time that the gun had been in his home, Overton was not prejudiced by the exclusion of the two defense witnesses.”2 Overton also claimed that his counsel had provided constitutionally ineffective representation by failing to disclose the witnesses earlier. The Court of Appeals left this claim for post-conviction review.3 Overton then petitioned this Court for certiorari, arguing that the Court of Appeals had erred by affirming the circuit judge’s decision to exclude his witnesses’ testimony. We agree.

ANALYSIS

¶9. With regard to discovery sanctions, this Court has recognized that “[t]he court cannot disregard the ‘fundamental character of the defendant’s right to offer the testimony of witnesses in his favor.’”4 “The weight of the sanction should be based on the motivation of the offending party in violating the discovery rule,” and “[t]he general rule is that evidence must not be excluded.”5 “[Ejxclusion of evidence is a radical sanction that ‘ought be reserved for cases in which the defendant participates significantly in some deliberate, cynical scheme to gain a substantial tactical advantage.’ ”6

¶ 10. “The fact that evidence was recently discovered, by itself, is insufficient proof that a discovery violation was willful and motivated by a desire to obtain a tactical advantage.”7 We have rejected “ ‘a posture in which we assume that recently discovered evidence is part of some scheme to defraud justice and require the defendant to prove otherwise.’ ”8 In other words, the record must contain evidence that the defendant committed a discovery violation to obtain a tactical advantage before exclusion becomes the appropriate sanction.

¶ 11. Here, assuming that Overton violated Uniform Rule of Circuit and County Court Practice 9.04, the circuit judge erred by employing exclusion as a sanction. The record contains no evidence that either the defendant or defense counsel withheld the witnesses’ identities to gain a tactical advantage. Further, the circuit judge made no such finding. Instead, he ruled that defense counsel had done nothing wrong, but the witnesses would be excluded because they were “material.”

¶ 12. We are unable to agree with the dissent for two reasons. First, the trial judge never asserted that Overton or his counsel had committed any willful discovery violation. The trial judge stated that he “did not intend in any way to impute anything improper about counsel handling this matter,” and that the late disclosure of [719]*719the witnesses “was a matter where the family, I think, came-up with these witnesses right toward the end there, and so it’s a situation like that.”

¶ 13.

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Bluebook (online)
195 So. 3d 715, 2016 WL 1701819, 2016 Miss. LEXIS 174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/preston-overton-v-state-of-mississippi-miss-2016.