                      IN THE SUPREME COURT OF MISSISSIPPI

                                  NO. 2007-KA-01572-SCT

TOMARCUS MONTE FULKS

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                           03/01/2007
TRIAL JUDGE:                                HON. JAMES T. KITCHENS, JR.
COURT FROM WHICH APPEALED:                  LOWNDES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                    OFFICE OF INDIGENT APPEALS
                                            BY: W. DANIEL HINCHCLIFF
                                            LESLIE S. LEE
ATTORNEYS FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                            BY: LAURA HOGAN TEDDER
DISTRICT ATTORNEY:                          FORREST ALLGOOD
NATURE OF THE CASE:                         CRIMINAL - FELONY
DISPOSITION:                                REVERSED AND REMANDED–07/23/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

         BEFORE CARLSON, P.J., RANDOLPH AND KITCHENS, JJ.

         KITCHENS, JUSTICE, FOR THE COURT:

¶1.      This is a case involving the State’s duty to disclose evidence to criminal defendants

under Rule 9.04 of the Uniform Rules of Circuit and County Court Practice. Finding that the

State violated its obligation in this case, we reverse the convictions and remand for a new

trial.

¶2.      In February 2007, a Lowndes County Circuit Court jury convicted Tomarcus Fulks

of armed robbery and aggravated assault in connection with a July 2005 house break-in. One

of the State’s key witnesses was Joshua Glenn, who originally told police that he and Fulks
had not participated in the robbery but merely had sat in a car while recent passengers,

unbeknownst to Glenn and Fulks, orchestrated and committed the crime. This account was

memorialized and submitted to defense counsel in discovery.

¶3.    On the day before trial, though, the prosecution advised defense counsel for the first

time that Glenn instead would testify that he had seen Fulks kick in the back door of the

home, lead the robbery party inside, and then quickly escape the house, followed by the other

participants and in possession of some sort of electronic device from the residence. For its

part, the prosecution contended that it had provided a complete discovery packet to Fulks’s

previous attorney and that any material lost from that packet could not be attributed to a

failure on the part of the State. Fulks’s trial attorney, Jeffrey Hosford of Starkville, countered

that the substance of Glenn’s new account had never been included in any discovery

production until the district attorney mentioned it on the day before trial. The record does not

definitively settle this dispute, but prosecutors offered no rebuttal to the defense’s

counterargument, and the State appears to concede the point in its brief to this Court.1 Fulks

moved the trial court for a continuance, and the motion was denied.

¶4.    At trial, in addition to Glenn’s revised testimony, the State adduced evidence, inter

alia, that, once inside the house and during the commission of the robbery, one of Fulks’s

cohorts assailed the homeowner with a baseball bat. The jury convicted Fulks of both armed

robbery and aggravated assault, and the trial judge sentenced Fulks to a total of forty years

       1
         On page 8 of the appellee’s brief in this case, the State says: “[W]hen the
prosecutor was interviewing witnesses in preparation for trial . . . Glenn gave a statement
that ran contrary to his previous recorded statement . . . . Hosford was provided with
Glenn’s original recorded statement to law enforcement in the initial discovery
packet”(emphasis added).

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in prison.2 On appeal, Fulks’s sole assignment of error is his contention that the trial court

erred by declining to grant the defense’s motion for a continuance.

¶5.    Rule 9.04(A) of the Uniform Circuit and County Court Rules provides the applicable

discovery rule, which requires prosecutors to disclose evidence “which is known or by the

exercise of due diligence may become known to the prosecution.” Specifically pertinent to

the instant case is Subsection 1, which requires disclosure of “[n]ames and addresses of all

witnesses in chief proposed to be offered by the prosecution at trial, together with a copy of

the contents of any statement . . . and the substance of any oral statement made by any such

witness[.]” Miss. Unif. Cir. & Cty. R. 9.04(A)(1). When a party fails to adhere to this rule,

“the court may order such party to permit the discovery of material and information not

previously disclosed, grant a continuance, or enter such other order as it deems just under the

circumstances.” Miss. Unif. Cir. & Cty. R. 9.04(I). On appeal, such a decision is reviewed

for an abuse of discretion resulting in manifest injustice. Payton v. State, 897 So. 2d 921, 942

(Miss. 2003).

¶6.    The seminal case on this subject is Box v. State, 437 So. 2d 19 (Miss. 1983). The Box

Court generally described the issue as a tension that, as a matter of constitutional necessity,

must favor the defendant.

       The question presented here brings into direct conflict two important interests.
       First, there is the prosecution’s interest in presenting to the jury all relevant,
       probative evidence. On the other hand, there is the accused’s interest in
       knowing reasonably well in advance of trial what the prosecution will try to




       2
        The total sentence included a thirty-five-year sentence for the robbery and a five-
year sentence, to run consecutively, for the aggravated assault.

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       prove and how it will attempt to make its proof which, of course, includes the
       names of persons the State expects to call as witnesses.

       This State is committed to the proposition that these conflicting interests are
       best accommodated and that justice is more nearly achieved when, well in
       advance of trial, each side has reasonable access to the evidence of the other.

Id. at 21.

¶7.    Judicial analyses on this subject are necessarily fact intensive. The facts of this case

mirror those of the Box case very closely. In Box, the defendant was charged with armed

robbery. The prosecution adduced testimony from the owner of the automobile used in the

robbery and photos of that car but provided notice of that evidence to the defense, as in the

instant case, on the day before the trial commenced. Id. “Although we are not hide-bound to

reverse every case in which there was some failure by the State to abide by a discovery rule,”

id., the Box Court held that such an ill-timed revelation demanded reversal of the defendant’s

conviction. “A rule which is not enforced,” the unanimous Court concluded, “is no rule.” Id.

¶8.    Obviously, the instant case is distinct from Box in that Fulks’s attorney was aware of

the State’s intent to offer Glenn’s testimony. However, in the case at bar, the State’s

eleventh-hour disclosure of the unexpected content of this witness’s testimony produced the

same result as that which drew the Box Court’s condemnation: a trial by ambush in which

critically important evidence was sprung on a defendant with such abruptness that defense

counsel had time neither to investigate its veracity nor to make meaningful preparation to

meet it.

¶9.    Clearly, the broadly delineated rule governing these decisions, combined with the

scope of review through which this Court is bound to view them, makes the reversible error



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alleged in this appeal rare indeed. Nevertheless, this is one of those rare cases. The

prosecution violated Rule 9.04(A)(1) when it failed to notify the defense of Glenn’s changed

story until the day before trial; this is precisely the sort of “trial by ambush” that Mississippi

has endeavored to outlaw. Byrom v. State, 863 So. 2d 836, 870 (Miss. 2003). Therefore, the

trial judge was obligated to undertake some remedial measure consistent with Rule 9.04(I)

to avoid manifest injustice.

¶10.   When a prosecutor reveals evidence on the eve of trial that should have been disclosed

earlier, and when that evidence completely undercuts the defense’s theory of the case and

renders most of its trial preparations worthless, then the only effective remedy is a

continuance. Otherwise, the defense attorney is left with inadequate time and opportunity to

investigate the newly arisen evidence, evaluate its trustworthiness, discuss its implications

with his client, allow time for due consideration thereof, and, if necessary, to develop a new

trial strategy.3 This quandary seems to have gone unrecognized by the trial judge, who treated

Glenn’s new revelation merely as an impeachment opportunity for the defense.

       BY THE COURT:              What would a continuance accomplish? You’ve
                                  talked to Mr. Glenn today.
       BY MR. HOSFORD:            Yes, Your Honor.
       BY THE COURT:              You got the statement that he gave to police to
                                  impeach him by. What more would a continuance do
                                  other than delay the case?
       BY MR. HOSFORD:            Your Honor, it would allow me –



       3
         “By no means does [a Box violation] mean invariably that the defendant will be
entitled to a continuance until the next term of court. There will no doubt be cases where
postponement of a day or two, or in some cases even an hour or two, will suffice.”
Reuben v. State, 571 So. 2d 1383, 1386 (Miss.1987) (quoting Foster v. State, 484 So. 2d
1009, 1011 (Miss. 1986)). These determinations necessarily depend on the nature and
extent of each discovery violation.

                                                5
       BY THE COURT:             You have the vehicle necessary to impeach him if he
                                 changes my [sic] his statement.
       BY MR. HOSFORD:           Your Honor would allow me an opportunity to
                                 investigate those allegations further and to verify
                                 whether or not there [sic] are true. There may be
                                 possible other witnesses that can help my client.

¶11.   Although the trial court was not persuaded by these clearly valid concerns, they were

precisely the impetuses that led this Court to reverse and remand in the case of a defendant

against whom the prosecution decided to introduce evidence of prior crime but to whom the

prosecution did not disclose that plan until the morning of trial, even though prosecutors

happened upon the evidence only that same day. McCullough v. State, 750 So. 2d 1212,

1217 (Miss. 1999). In explaining the Box holding, the Court wrote:

       When faced with previously undisclosed evidence to which the defendant has
       objected, the trial court should give the defendant a reasonable opportunity to
       familiarize himself with the evidence. If the defendant thereafter believes he
       may be prejudiced by admission of the evidence because of his lack of
       opportunity to prepare to meet it, he must request a continuance. . . . If he
       indeed requests a continuance, the state may opt to proceed without the
       undisclosed evidence, else the trial court must grant the continuance. Failure
       to follow the Box guidelines is prejudicial error, requiring reversal and
       remand.

McCullough, 750 So. 2d at 1217 (quoting Snelson v. State, 704 So. 2d 452, 458 (Miss.

1997)) (emphasis included). Notably, as was so in Box and McCullough, our analysis in the

case at bar necessarily depends on the fact that Glenn’s revised account of the night in

question amounts to “previously undisclosed evidence.” McCullough, 750 So. 2d at 1217.

In Box, a key witness was not revealed to the defense until the evening before trial, even

though the State knew nine months ahead of trial that the witness might testify. Box, 437 So.

2d at 21. Likewise, in today’s case, we know the State was aware that Glenn had changed his



                                             6
story some months in advance, as the record indicates that police were aware of the new

version during the court term immediately preceding the one during which Fulks stood trial.

These cases do not present situations in which, for example, a witness changes his story on

the stand. Such a situation might present other problems requiring review; but for purposes

of the Box rule, such testimony would not amount to “previously undisclosed evidence”

because the State would have had no knowledge thereof to disclose. We do not attempt today

to identify a hard and fast temporal interval beyond which a Rule 9.04 violation crystalizes;

indeed, given the fact intensity of these inquiries, such a determination likely is impossible.

¶12.   Undoubtedly, any rule subject to a review for an abuse of discretion defies the

application of a “bright line” to one side of which lies fairness and to the other side of which

lies injustice. But there can be no doubt that, under these facts, twenty-four hours was an

insufficient period of time for defense counsel to react effectively to a sea change of this

magnitude. Any other judgment is not only a violation of Rule 9.04 but also is a serious

infringement upon the defendant’s right to due process of law under the Fourteenth

Amendment to the U.S. Constitution and Article 3, Section 14, of the Mississippi

Constitution. See Love v. State, 441 So. 2d 1353 (Miss. 1983) (holding that refusal to allow

drug defendant to analyze substance in question prior to trial, when defendant’s case centered

on identification of substance, required reversal). Compare Ramos v. State, 710 So. 2d 380

(Miss. 1998) (failure to disclose inculpatory evidence to the defendant was reversible error),

with Payton v. State, 897 So. 2d 921 (Miss. 2003) (holding that trial court did not abuse

discretion in refusing to grant continuance when untimely disclosed evidence concerned

trivial matters).

                                               7
¶13.   Finally, at the very least, the about-face in Glenn’s account amounted to

“[i]mpeachment evidence . . . that, if disclosed and used effectively, . . . may [have] ma[d]e

the difference between conviction and acquittal.” United States v. Bagley, 473 U.S. 667, 676,

105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985) (holding that impeachment evidence is “favorable

evidence” for purposes of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215

(1963)). Therefore, because our Rule 9.04 “is obviously much broader than Brady,” Hughes

v. State, 735 So. 2d 238, 254 (Miss. 1999) (citing Brady, 373 U.S. 83), a violation of the rule

handed down by the U.S. Supreme Court’s most notable case on discovery in criminal cases

necessarily indicates a failure to adhere to Mississippi’s more comprehensive Rule 9.04.

¶14.   Based on the facts of this case, our fidelity to the rule of Box demands that we find

the trial court’s decision not to grant a continuance when the State disclosed inculpatory

evidence on the eve of trial to be error that prejudiced the defendant’s ability to put on his

case, culminating in manifest injustice. The convictions must be reversed, and the case is

remanded for a new trial.

¶15.   REVERSED AND REMANDED.

    WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH,
LAMAR, CHANDLER AND PIERCE, JJ., CONCUR.




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