Date: 04-29-2016

Case Style: Preston Overton v. State of Mississippi

Case Number: 2013-CT-01236-SCT

Judge: Forrest Johnson, Jr.

Court: IN THE COURT OF SPECIAL APPEALS OF MARYLAND

Plaintiff's Attorney: BILLY L. GORE, JASON L. DAVIS

Defendant's Attorney: GEORGE T. HOLMES

Description: 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. According 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
2
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
Cheatham, 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
1 Overton v. State, No. 2013-KA-01236-COA, 2015 WL 3948461, *1 (Miss. Ct. App. June 9, 2015). 3
it to Page. Finally, Dunmore 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 Overton 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
2 Id. at *3. 3 Id. at **3–4.
4
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 “[E]xclusion 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.
4 Myers v. State, 145 So. 3d 1143, 1149 (Miss. 2014) (quoting Coleman v. State, 749 So. 2d 1003, 1009–10 (Miss. 1999)). 5 Myers, 145 So. 3d at 1149 (citing Coleman, 749 So. 2d at 1009; Williams v. State, 54 So. 3d 212, 213 (Miss. 2011)). 6 Myers, 145 So. 3d at 1149 (quoting Houston v. State, 531 So. 2d 598, 612 (Miss. 1988)). 7 Myers, 145 So. 3d at 1149 (citing Williams, 54 So. 3d at 215). 8 Myers, 145 So. 3d at 1149 (quoting Williams, 54 So. 3d at 214). 5
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 the 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. If, as the trial judge assumed, the family (not the defendant) “came up” with the
witnesses late, no reasonable inference is to be drawn that Overton or his counsel willfully
violated the discovery rules. And certainly, no evidence before us suggests that the
“defendant participate[d] significantly in some deliberate, cynical scheme to gain a
substantial tactical advantage.’”9
¶14. The dissent seizes upon the trial judge’s use of the phrase “trial by ambush.” But this
phrase in no way suggests that Overton or his counsel willfully violated the discovery rules,
or that they had prior knowledge of the witnesses’ potential testimony. The phrase, standing
alone, means no more than that the witnesses were produced on the eve of trial, and that the
trial judge agreed with the prosecution that it would be “blindsided” if the witnesses testified.
This, of course, would be true whether or not Overton or his counsel had prior knowledge
of the testimony and whether or not any intentional discovery violation occurred.
9 Myers, 145 So. 3d at 1149 (quoting Houston, 531 So. 2d at 612). 6
¶15. The trial judge made clear his reason for excluding the witnesses:
They came forward. The clerk advised that the witness list was filed about 5:00 yesterday when we had a trial going on. The State advised that they were advised this morning. These are material was [sic] witnesses. You can’t do that. I gave them a chance to talk to them to see what they’re going to testify to. This sounds like material witnesses, so the objection is going to be sustained.
¶16. The judge never made any finding about Overton’s intent. His decision to exclude the
witnesses and to deny Overton’s requested continuance was based on his finding that the
witnesses were material. Our precedent clearly holds that exclusion is not an appropriate
sanction absent evidence of an intentional violation.10 And nothing in the record suggests
that the trial judge believed Overton or his counsel had committed a willful violation, or that
he based his decision on such a finding. But the dissent suggests otherwise, opining that the
trial judge did find a willful violation and that the trial judge’s finding should be affirmed
under a deferential standard of review.
¶17. Again, the trial judge never held that the witnesses were excluded because of a willful
violation. But if, as the dissent believes, he did, then we would be required to examine the
record to find evidence to support that finding. We find none, so any such finding would
have been arbitrary and without support.
¶18. The record is void of any evidence of a “deliberate, cynical scheme to gain a
substantial tactical advantage” as required by our precedent,11 so, even if the trial judge had
found a deliberate violation, that finding would have been based on pure speculation.
10 Myers, 145 So. 3d at 1149. 11 Id. (quoting Houston, 531 So. 2d at 612). 7
Accordingly, we must reject the dissent’s view that evidence of late disclosure—standing
alone—would support a finding of an intentional discovery violation. But to be clear, we do
not agree with the dissent that the trial judge made this arbitrary factual finding.
¶19. Reversal is required “only if [the defendant] can show that he was prejudiced or
harmed by the exclusion of the evidence. This Court has found prejudice where the trial
court excludes evidence that tended to support the defendant’s theory of the case.”12
Recently, we found prejudice where the “case featured sharply contrasting evidence, with the
credibility of each side’s version of events playing a critical role in the jury’s deliberations.”13
¶20. The same is true here. This case presented a pure battle of credibility. According to
the officers, Overton never mentioned Page and voluntarily admitted the cocaine belonged
to him. According to Overton, he always had maintained that the drugs belonged to Page and
the gun to his grandmother, and that he had no knowledge that either was in the bedroom
Page rented. Further, he testified that he had confessed only due to threats from the officers.
The excluded defense witnesses would have corroborated all of Overton’s testimony.
Because this case hinged on credibility, we find that Overton was prejudiced by the trial
judge’s erroneous exclusion of the witnesses’ corroborative testimony.

Outcome: Because the circuit judge erred by excluding Overton’s witnesses, and because that error prejudiced his defense, we reverse the trial court’s judgment and remand this case for a new trial. We also reverse the judgment of the Mississippi Court of Appeals.

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