                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2008-CT-00844-SCT

HARVEY WILLIAMS, JR. a/k/a SMOKIE

v.

STATE OF MISSISSIPPI

                              ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                          04/06/2007
TRIAL JUDGE:                               HON. L. BRELAND HILBURN
COURT FROM WHICH APPEALED:                 HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   MERRIDA COXWELL
                                           CHARLES RICHARD MULLINS
                                           JANE E. TUCKER
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: LADONNA C. HOLLAND
DISTRICT ATTORNEY:                         ROBERT SHULER SMITH
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               REVERSED AND REMANDED - 02/03/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       PIERCE, JUSTICE, FOR THE COURT:

¶1.    Harvey “Smokie” Williams, Jr., shot and killed Calvin Younger in the parking lot at

Jay’s Lounge in Jackson, allegedly in self-defense. At trial, he called a bouncer, Anthony

Herrington, to testify that Younger had possessed a firearm earlier that night. That testimony

was excluded because it was not disclosed in discovery. Williams was convicted, and the

Court of Appeals affirmed the conviction. Because no evidence indicates that this discovery
violation was willful, the evidence should not have been excluded. Thus, the conviction is

reversed, and the case is remanded for a new trial.

                                   STATEMENT OF FACTS

¶2.      Early in the morning of June 22, 2003, Williams parked his vehicle in the turn lane

in the middle of Medgar Evers Drive in front of Jay’s Lounge, a nightclub in Jackson.

According to his testimony at trial he exited his car saw Younger pull a gun from behind his

back. Williams fired off five shots and fled the scene. Williams produced no other witnesses

who would testify that Younger had pulled a gun on Williams. He did, however, produce

Anthony Herrington, a bouncer at the club, who would have testified that he personally had

denied entry to Calvin Younger earlier that night because Younger had a gun on his person.

¶3.      While Herrington was allowed to testify that he had heard Younger cursing at

Williams before the shooting and that he had seen Younger reach toward his back before

Williams fired, he was not allowed to testify that Younger had possessed a gun earlier

because the defense’s discovery responses had not mentioned this fact.

¶4.      On the second day of the trial, Williams’s attorney told the judge that Herrington’s

story about the gun had been discovered by the defense only that day. Nevertheless, the

evidence was excluded, and Williams was convicted. His appeal was heard by the Court of

Appeals, which affirmed the conviction.1 We granted certiorari.

                                           ANALYSIS




         1
             Williams v. State, _ So. 3d _, 2010 WL 161495, *16 (Miss. Ct. App., January 19,
2010).

                                                2
¶5.    Pursuant to Mississippi Rule of Appellate Procedure 17(h), we limit our review to

whether the trial court should have excluded portions of Anthony Herrington’s testimony.

The standard of review for the admission or exclusion of evidence is abuse of discretion.2

The trial court's decision will stand unless the reviewing court concludes that the decision

was arbitrary and clearly erroneous, amounting to an abuse of discretion.3 Here, evidence

was excluded based on an alleged discovery violation. We must determine (1) whether such

a violation occurred and, if so, (2) whether the exclusion of this evidence was an appropriate

remedy.

       I.        WHETHER THERE WAS A VIOLATION OF DISCOVERY
                 PROCEDURES.

¶6.    The process by which a defendant complies with discovery requirements is outlined

in Uniform Rule of Circuit and County Court Practice 9.04:

       C. . . . the defendant shall, subject to constitutional limitations, promptly
       disclose to the prosecutor . . . the following information and material which
       corresponds to that which the defendant sought and which is in the possession,
       custody, or control of the defendant or the defendant’s attorney, or the
       existence of which is known, or by the exercise of due diligence may become
       known, to the defendant or defendant’s counsel:
               1. Names and addresses of all witnesses in chief which the
               defendant may offer at trial, together with a copy of the contents
               of any statement, written, recorded or otherwise preserved of
               each such witness and the substance of any oral statements made
               by any such witness. . . .4




       2
           Miss. Transp. Comm'n v. McLemore, 863 So. 2d 31, 34 (¶ 4) (Miss. 2003).
       3
           Id.
       4
           URCCC 9.04(C) (emphasis added).

                                              3
If after complying with the rules, a party discovers new evidence, it must be promptly

disclosed.    Here, Williams complied with pretrial discovery requirements, disclosing

Herrington’s name and a summary of his testimony, but purportedly discovered new

information from Herrington during the trial. The trial court allowed Herrington to testify,

but excluded the statements purportedly discovered recently by the defense and not included

in the discovery provided to the State.

¶7.    Either side may use newly discovered information subject to the requirements of Rule

9.04. The plain language of the rule requires only disclosure of information and materials

known or that would have become known by the exercise of due diligence and prompt

disclosure of newly discovered information. The trial court did not specifically find that the

information regarding Younger’s possession of a gun actually was known by the defense,

that it would have been known by due diligence, or that it was not promptly disclosed to the

State once it was known. If none of these elements was present, then there was no discovery

violation at all.

¶8.    However, the trial court did have information at its disposal to determine within its

discretion that due diligence may not have been exercised in discovery. Williams’s attorney

admitted that he did not begin preparing for the case until March 3, 2007, when the April 3,

2007, trial date was set, after having been appointed to take on the case more than a year

before. And it appears that Herrington was not interviewed at all by the defense until the

week before the trial.

¶9.    In Morris v. State, we found that a trial court did not abuse discretion when it

determined that a discovery violation was “willful and motivated by a desire to obtain a


                                              4
tactical advantage,” even though the judge gave no specific reason for the ruling.5

Considering our holding in Morris, we would exhibit a lack of deference to the trial court if

we found that it had erred in determining that a discovery violation had occurred. However,

even though that determination stands, we must settle whether the exclusion of important

testimony was the appropriate remedy.

       II.       WHETHER THE TRIAL COURT ABUSED ITS DISCRETION
                 IN EXCLUDING HERRINGTON’S TESTIMONY BASED ON
                 THE FINDING OF A DISCOVERY VIOLATION.

¶10.   In the context of discovery violations, exclusion of evidence is a radical sanction that

should rarely be used.6 If a trial court is made aware of a party’s failure to comply with

discovery requirements, it may admit the evidence, grant a continuance, or “enter such an

order as it deems just under the circumstances.” 7 However, the general rule is that the

evidence cannot be excluded.8 In Darby v. State, we carved out an exception to this rule:

If the trial 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.9




       5
           Morris v. State, 927 So. 2d 744, 747 (Miss. 2006).
       6
           Houston v. State, 531 So. 2d 598, 612 (Miss. 1988).
       7
           Morris v. State, 927 So. 2d 744, 747 (Miss. 2006).
       8
           Morris, 927 So. 2d at 747.
       9
           Darby v. State, 538 So. 2d 1168, 1176 (Miss. 1989).

                                               5
¶11.   In Morris, we affirmed a finding that a discovery violation was willful where the

defendant gave the State a list of witnesses the morning that the trial began.10 On the other

hand, in Skaggs v. State, we reversed where the trial court struck the testimony of a defense

witness who offered additional details that were not in reciprocal discovery.11 There, the

defense counsel admitted to the court that he had learned of the additional testimony only that

morning and had not even notified the State that the witness’s testimony might be different.12

¶12.   In this case, similarly to Skaggs and in contrast to Morris, the defense provided

discovery to the State, including summaries of witness testimony. The defense attorney told

the judge that Herrington later had provided him with an additional fact, which was quickly

disclosed to the State, and nothing in the record indicates otherwise. The Court of Appeals

reasoned that failure to disclose the entire substance of Herrington’s testimony was, per se,

reason to find that the same failure was wilful.13 We disagree.

¶13.   While avoiding unfair surprise to either the defense or prosecution is a fundamental

policy of criminal procedure, nothing is more fundamental than an accused's right to present

witnesses in his own defense.14 It would be a mistake to adopt a posture in which we assume

that recently discovered evidence is part of some scheme to defraud justice and require the




       10
            Morris, 927 So. 2d at 747.
       11
            Skaggs v. State, 676 So. 2d 897, 903-04 (Miss. 1996).
       12
            Skaggs, 676 So. 2d at 902.
       13
        See Williams v. State, __ So. 3d __, 2010 WL 161495, *5 (¶ 8) (Miss. Ct. App.,
January 19, 2010)
       14
            Ray v. State, 503 So. 2d 222, 225 (Miss. 1986).

                                               6
defendant to prove otherwise. Here, the only indication in the record that the discovery

violation was willful or motivated by a desire to obtain a tactical advantage is that the

evidence was recently discovered. Coupled with the fact that the defense had disclosed the

identity of the witness, had provided a partial summary of his testimony, and had disclosed

the new information to the State before the witness took the stand, we do not think that the

suspicious timing is enough. Further, exclusion was especially sharp considering the

importance of this testimony to Williams’s case. Therefore, a sanction less harsh than

exclusion of defense testimony, if any, should have been imposed.

¶14.   Finally, contrary to the reasoning of the Court of Appeals, we do not think that this

error was harmless.15 The admission or exclusion of evidence constitutes reversible error

only where a party can show prejudice or harm.16 Herrington would have corroborated

Williams’s testimony by verifying that Younger had possessed a gun shortly before the

shooting. From the excluded testimony, the jury might have inferred that Younger, who had

approached Williams, still had possessed the gun when Williams shot him. Without

Herrington’s testimony, the evidence overwhelmingly indicates that Younger was unarmed.

¶15.   Therefore, we find that the trial court’s exclusion of the full testimony of Anthony

Herrington was an abuse of discretion, as the error seriously prejudiced the defendant. The

opinion of the Court of Appeals and the conviction by the Hinds County Circuit Court are

reversed, and the case is remanded to the trial court for a new trial.

¶16.   REVERSED AND REMANDED.


       15
            Williams, 2010 WL 161495, at *5.
       16
            Ross v. State, 954 So. 2d 968, 1001 (Miss. 2007).

                                               7
     WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH,
KITCHENS AND CHANDLER, JJ., CONCUR. LAMAR, J., CONCURS IN RESULT ONLY.




                                  8
