Jermeka Blakely a/k/a Jermeka Wilshan Blakley a/k/a Jermeka W. Blakley v. State of Mississippi

�2. Blakely and McFarland were jointly indicted in February 2018 by a Clarke County

grand jury. The indictment stated that Blakely and McFarland �as part of a common plan or

scheme or as part of the same transaction or occurrence in [Clarke] County . . . on or about

[August 8, 2017,] . . . did wilfully, unlawfully, and feloniously and knowingly traffic 118.379

grams of Cocaine, a Schedule I controlled substance, in violation of [Mississippi Code

Annotated] [s]ection 41-29-139(f)(c) [(Rev. 2018)] . . . .�1

With the assistance of counsel,

Blakely waived arraignment and entered a plea of not guilty in March 2018.

�3. Defendants Blakely and McFarland were tried jointly in a jury trial beginning

September 11, 2018, in the Clarke CountyCircuit Court. They were represented by separate

counsel. During voir dire, Blakely�s lawyer informed the trial court that there was a

possibility that Arrington may be called as a defense witness. After the jury was empaneled

and sworn in, the court held a recess. At that time, Blakely�s counsel confirmed that he

sought to call Arrington as a witness and summarized Arrington�s proposed testimony as

1 Blakely was also separately indicted on the same date for possession of 4.835 grams

of marijuana with intent to sell, in violation of Mississippi Code Annotated section

41-29-139 (Rev. 2018). The trial court entered an order of nolle prosequi regarding this

count of Blakely�s indictment.

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follows:

[Arrington] would testify that he was present in the area . . . near the scene,

and he observed the officers exit the vehicle, go up to two gentlemen [the

defendants] who were speaking . . . at the front of the vehicle. They were

detained and searched. The car was searched, the area was searched, and that

[the] police left shortly thereafter. [H]e would testify that he didn�t see either

of the defendants make any overt movements, attempt to flee, throw down

anything, exchange anything during this entire time that he witnessed the

incident.

�4. Blakely�s counsel also told the trial court that Arrington had apparently attended an

earlier habeas corpus hearing for Blakely�s co-defendant, McFarland, in September 2017 and

that Arrington told him that he had spoken �to the sheriff about what he witnessed� after that

hearing. Blakely�s trial counsel was not his lawyer at that time. McFarland�s trial counsel

also informed the trial court that he was not McFarland�s counsel at the time of the habeas

corpus hearing and that he did not know about Arrington until the night before trial.

�5. Blakely�s counsel told the State about Arrington for the first time that morning, and

Arrington was at the courthouse at defense counsel�s request. The State interviewed

Arrington during the lunch recess and learned in that interview that there was at least one

other man (later identified as Terry Roberts) with Arrington on the day of the incident.

�6. The State moved to exclude Arrington�s testimony because Blakely�s counsel had not

served reciprocal discovery regarding Arrington and thus had failed to comply with the

applicable discovery rules. The State also informed the trial court that in the course of

interviewing Arrington, it learned about Roberts, and it would need time to interview this

witness if the trial court did not exclude Arrington�s testimony.

�7. Blakely�s counsel said that he did not know about Arrington�s existence until the night

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before trial began; he told the State about this witness that morning of trial; and he did not

know about the other witness (Roberts) until he learned that Arrington mentioned him when

he was interviewed by the State that morning. Blakely�s counsel also told the trial court that

neither Arrington nor Roberts were under subpoena. The trial court took the matter under

advisement at that point and, on its own motion, issued an instanter subpoena to have both

Arrington and Roberts present to allow the State an opportunity to interview Arrington again

and interview Roberts.

�8. The State�s first witness was Ben Ivy, a narcotics agent with the Clarke County

Sheriff�s Department. He testified that he and Agent Mike McCarra were driving through

a neighborhood in Shubuta, Mississippi on August 8, 2017. Agent McCarra was driving his

truck and he (Agent Ivy) was in the passenger seat. Agent Ivy saw two men, Blakely and

McFarland (he knew them by sight), bent over the trunk of a Nissan Maxima. Agent Ivy also

testified that he saw a bag the size of a softball sticking up out of the trunk with a white

substance in it that he believed to be cocaine. Ivy testified that he said to Agent McCarra that

the men �had dope.� Agent McCarra also testified for the State and corroborated Agent Ivy�s

testimony on this point, and both he and Agent Ivy testified that McCarra then turned the

truck into the yard where the Maxima was parked.

�9. Agent Ivy testified that as they pulled up, he saw McFarland remove the plastic bag

with the white-powder substance from the trunk and hand it to Blakely. He said that Blakely

began to walk away and threw this bag into some nearby bushes. Agent McCarra testified

that from where he was he did not see anything thrown into the bushes.

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�10. Both agents testified that they told Blakely to stop and Agent McCarra was able to

keep Blakely from leaving the scene. Agent Ivy walked over to McFarland who at that point

was standing at the rear end of the Maxima. Agent Ivy testified that he saw scales in the

trunk of the car that were still �powered on,� a bag of marijuana on the front passenger seat

in plain view, and a firearm by the gear shift next to the marijuana. He testified that he then

handcuffed McFarland and told Agent McCarra what he had seen. Agent McCarra testified

that he then handcuffed Blakely, and McFarland and Blakely were put in McCarra�s truck.

Agent Ivy testified that after the men were handcuffed, �people started coming, walking out

onto their lawn, videoing us with their cell phones.�

�11. Agents Ivy and McCarra testified that backup was called and that Justin Rawson, who

was a deputy at the time with the Clarke CountySheriff Department, arrived after McFarland

and Blakely were handcuffed. Agents Ivy and McCarra and DeputyRawson all testified that

Deputy Rawson found the bag of cocaine in the bushes. Agent Ivy testified the scales were

recovered from the Maxima�s trunk, and they also recovered the marijuana. He also testified

that $4,800 in cash and another bag of marijuana were found in Blakely�s pockets. A gun

was also located in the car, which Blakely claimed that he owned. Both Agents Ivy and

McCarra testified that the bag of cocaine was secured into the evidence locker and sent to

a lab for testing. The State�s witness, Jaime Johnson, who was accepted without objection

as an expert in the field of chemistry and narcotics analysis, testified that she analyzed the

white powdery substance collected from the scene and determined it was cocaine.

�12. The State rested its case. Blakely moved for a directed verdict, which the trial court

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denied. After the State rested and the trial court denied Blakely�s motion for a directed

verdict, the trial court again re-visited the State�s motion to exclude any testimony from

Arrington and ultimately ruled that Arrington�s testimony would be excluded. We will

address additional facts and the trial court�s ruling relating to this issue in our discussion

below.

�13. After the State�s motion to exclude Arrington�s testimony was granted, the defense

rested without calling any witnesses. The jury unanimously found Blakely and McFarland

guiltyoftrafficking cocaine. After allowing for a pre-sentencing investigation, the trial court

conducted a sentencing hearing for Blakely on October 4, 2018. The trial court sentenced

Blakely to serve a term of twenty years in the custody of the MDOC, with Blakely being

ineligible for parole or probation during the first ten years of the sentence pursuant to

Mississippi Code Annotated section 41-29-139(f)(1). Blakely was also ordered to pay a fine

of $10,000, $300 to the crime lab, a $1,200 appearance bond fee, and court costs of $455.50,

all due upon his release from the MDOC. Blakely filed a motion for judgment

notwithstanding the verdict or, in the alternative, a new trial, which the trial court denied.

Blakely appeals.

DISCUSSION

I. Exclusion of Arrington�s Testimony

�14. Blakely asserts that the trial court committed reversible error when it excluded

Arrington�s testimony and thereby deprived him of his due process right to a fair and

impartial trial. He claims that the State failed to inform him of Arrington�s existence and

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thus withheld exculpatory or impeachment evidence in violation of Brady v. Maryland, 373

U.S. 83 (1963). Blakely also asserts that the trial court erred when it excluded Arrington�s

testimony as a discovery sanction. For the reasons addressed below, we find no merit in

either of these assertions.

A. Additional Facts and the Trial Court�s Ruling

�15. We begin by addressing the additional facts and the trial court�s ruling relating to this

issue. As noted above, the trial court took this issue under advisement the first time it heard

the parties after the jury had been empaneled and sworn in. Halfway through the State�s

case-in-chief, during another recess, the State informed the trial court that it had briefly

talked to Arrington and had also interviewed Roberts. In these interviews, the State said that

it had �been given even more names of people that, according to them, were out on the scene

at the time.� Arrington also brought photographs of what he claimed were �his line ofsight.�

�16. The State re-asserted its motion to exclude Arrington (and Roberts, who was later

dropped by the defense as a witness) from testifying at trial because they had never been

identified in reciprocal discovery. Blakely�s counsel explained that he had just begun

representing Blakely about six months before trial started. He admitted that he �was aware

that there were allegations that people had been out there . . . on that day, but [that he] didn�t

have any idea who they [were].�

�17. The trial court asked Blakely�s counsel what he had done to prepare for trial, and he

explained that he had read the State�s discovery and discussed the case with his client several

times. The trial court ended this hearing as follows: �I�m going to take this under advisement

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. . . and I will make a ruling after the State closes. . . . [T]he purpose of reciprocal discovery

is to prevent surprise such as this . . . . [T]he State . . . [is] . . . entitled to not only interview

the witness, but investigate whatever the witness would testify to.� The trial court further

observed that for defense counsel to call Arrington or Roberts �at this late date . . . is

concerning to the Court. . . . [T]his matter should have been investigated, and reciprocal

discovery should have been submitted to the State prior to the first day of trial. But I'm going

to take it under consideration.�

�18. After the State rested, the trial court again re-visited the State�s motion to exclude any

testimony from Arrington and Roberts.2 The trial court questioned Blakely�s counsel and

established that he had requested and received discovery from the State and that he did not

furnish any written reciprocal discovery. On the morning of trial, Blakely�s counsel told

counsel for the State about Arrington and the substance of the testimony Arrington was

expected to give.

�19. The trial court asked how Blakely�s counsel learned about Arrington. He said that his

client had found Arrington and called him (his counsel) about Arrington the night before

trial. Blakely�s counsel said he then talked to Arrington and learned that Arrington had been

asked to be at McFarland�s September 2017 habeas corpus hearing to testify as a witness.

Arrington apparently did not testify, but he did listen to the agents� testimony about the

incident, and his recollection was very different from their portrayal of the incident.

2 At this point Blakely�s counsel said he was requesting that he be allowed to present

the testimony of both Roberts and Arrington in Blakely�s defense. McFarland�s counsel

confirmed that he did not seek to present either of these witnesses in McFarland�s defense.

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�20. Seeking clarification, the trial court asked Blakely�s counsel if McFarland�s habeas

corpus hearing was transcribed, and, if it was, whether he had obtained a copy of the

transcript. Blakely�s counsel admitted he had obtained a transcript of McFarland�s habeas

corpus proceeding about two weeks before trial.3

The trial court then stated that consistent

with Uniform Rule of Circuit and County Court Practice 9.04 (Mississippi Rule of Criminal

Procedure 17.9)4

it had granted the State the opportunityto interview Arrington, and the State

had done so. The trial court then directed defense counsel to call Arrington to the stand and

to proffer his testimony.

�21. Arrington testified that he and Roberts were sitting outside in Roberts�s carport when

he saw McFarland and Blakely across the street. He stated that the two defendants were

talking to each other near the front door of Blakely�s car and that the trunk was not open.

Arrington testified that the officers (Ivy and McCarra) came up in a blue truck. Ivy yelled,

�[D]rug bust, drug bust, drug bust,� and the defendants just stood there and the officers

handcuffed them. According to Arrington, he then heard Blakely say, �You don�t have to

search my car, you don�t have to search my car. . . . I got a bag of weed in my pocket, some

money, and a scale, but I don�t sell dope.� Arrington testified that Ivy searched the car,

3The record does not contain a copyof McFarland�s habeas corpus hearing transcript,

nor is there a copy of this hearing transcript in McFarland�s record on appeal in case number

2019-KA-00176-COA.

4 Although the trial court referred to Rule 9.04 of the Uniform Rules of Circuit and

County Court Practice, which applied prior to July 1, 2017, the Mississippi Rules of

Criminal Procedure were actually in effect during the relevant time period. Blakely was

indicted and tried in 2018. Rule 17 of the Mississippi Rules of Criminal Procedure tracks

the relevant portions of Uniform Rule 9.04 verbatim. For accuracy we indicate the

applicable section of that rule in parentheses.

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brought out a gun from the front seat, took the keys out of the car�s ignition, unlocked the

trunk, and searched it. Arrington testified that he never saw any cocaine, never saw the

defendants exchange anything, never saw Blakely get rid of anything, and he never saw

Blakely try to evade either officer.

�22. Arrington also testified that in September 2017 he attended a habeas corpus hearing

for McFarland at the request of one of McFarland�s family members. He said that he did not

testify at the hearing but that he was in court and heard the officers� testimony. After the

hearing was over he saw Clarke County Sheriff Todd Kemp. Arrington testified that Sheriff

Kemp was a friend of his from when Arrington used to be a jailer. Arrington then testified

as follows:

[Sheriff Kemp] shook my hand. . . . I looked into his eyes, and I said, �Todd,

you know I don�t lie. You know I don�t lie to you.� And he said to me, �I

know.� . . . I said, �Todd, that [what] went on in there, that wasn�t right.� And

he looked at me . . . and I said, �Because I was there.� And by the time I

released his hand, I told him, �Look, if those people have me to come to court

to testify, I�m subpoenaed, I'm going to tell what I saw.� He said, �You be

sure you tell what you saw.�

�23. On cross-examination, the State asked Arrington, �[W]hen you spoke to the sheriff

and said �What went on in there, that ain�t right,� did you provide him any of the details that

you provided to the Court today?� Arrington responded, �No. No.�

�24. Arrington also testified that Roberts (the other witness) was a schizophrenic who hears

voices and stabbed himself once in the pancreas. After Arrington finished testifying and was

taken back to a witness room, Blakely�s counsel told the trial court he no longer anticipated

calling Roberts as a defense witness.

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�25. The trial courtthen addressed Blakely�s counsel, observing that he had been appointed

as Blakely�s lawyer six months earlier and did not seek a continuance for additional

discovery or file a notice of newly-discovered evidence prior to voir dire with respect to

Arrington or Roberts. Continuing, the trial court then stated:

[Instead,] you wait[ed] until the jeopardy is attached to your client. Give the

Court some reason for this�other than the purpose is intentionally done to

either require this Court to declare a mistrial or declare that you cannot present

this witness as�in your defense or give you the advantage that the State

doesn�t have the time to investigate.

Blakely�s counsel offered that he could only present evidence of Arrington when he learned

of him. The trial court reminded him that he never filed a motion for newly discovered

evidence and remarked that counsel was just now indicating that he did not want to call

Roberts as a witness.

�26. Ultimately, the trial court granted the State�s motion to exclude Arrington�s testimony,

finding that Blakely had violated Uniform Rule of Circuit and County Court Practice 9.04

(Mississippi Rule of Criminal Procedure 17.3) by failing to name a witness in reciprocal

discovery and that excluding Arrington�s testimony was the proper sanction. The trial court

supported its ruling with the following findings:

That on Monday, September 10th, we had pretrial motions. This matter was

not brought to the Court�s attention at that time. [T]he Defendant Blakely

noticed to . . . the State, in the afternoon of the first day of trial[,] of its request

to have witnesses Donald Ray Arrington and Terry Roberts testify consistent

with a proffer that they were eyewitnesses to the stop and arrest of Blakely and

McFarland. There was no motion for continuance for newly discovered

evidence. A review of the court file finds that Defendant Blakely filed no

subpoena for the witness Arrington or the witness Roberts. The Court, of its

own motion, issued an instanter subpoena to have both Arrington and Roberts

present today to give the State the opportunity to interview the witnesses,

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which the State has affirmed [that it has done so].

The trial court further stated that it required Blakely to proffer Arrington�s testimony and that

during that testimony and the trial court�s own questioning of Blakely�s counsel, �it became

patentlyobvious� that the McFarland family knew of his existence as a potential witness; that

Blakely had a copy of the transcript of the habeas corpus hearing �some two weeks prior to

trial; . . . [and] that the discovery indicated that there were other persons present at the time

of the arrest and the finding of the cocaine that�s charged in the indictment.�

�27. Additionally, the trial court found that Arrington �testified that he told the sheriff

about his eyewitness account; however, on cross-examination, he only indicated that he

stated to the sheriff that it wasn�t right.� With respect to this point, the trial court found that

�there was no duty upon the sheriff to continue to investigate concerning Arrington�s

statement to him, that it did not have any substantive facts to support it . . . . Therefore, the

Court does not find that this would be . . . exculpatory evidence that should have been

reviewed by the sheriff's department.�

�28. Regarding the reasons offered by Blakely�s counsel for failing to notify the State of

this witness and his substantive testimony, the trial court found that it �only heard that the

defendant lived in Texas, and . . . was out on bond . . . . Therefore, [defense counsel had the

ability] . . . to consult with his client and also the ability to investigate the facts that surround

the charges in the indictment.�

�29. The trial court concluded as follows:

The Court, in the interest of justice, finds that it�s unfair to the State to have

a defense witness submitted during the course of the trial when there were

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other procedural avenues in which the defendant could have pursued; that at

this late date, the State has no time to investigate or to determine if there is

impeachable evidence as to any of the statements of . . . Arrington, and there

has been submitted nothing that would support the excusable neglect of not

naming him as a witness, subpoenae[ing] him as a witness, and providing the

reciprocal discovery as required under the rule.

B. Brady Violation

�30. We first address Blakely�s Brady violation contention. Blakely asserts that the State

knew of Arrington�s existence in September 2017 (one year before Blakely�s trial) when

Arrington spoke to Sheriff Kemp after McFarland�s habeas corpus hearing. According to

Blakely, this occurrence obligated the State to inform the defense of Arrington�s existence.

Because the State did not do so, Blakely contends that the State improperly withheld

exculpatory or impeachment evidence in violation of Brady, thus entitling him to reversal of

his conviction and sentence or a new trial.

�31. �Under Brady v. Maryland, �suppression by the prosecution of evidence favorable to

an accused upon request violates due process where the evidence is material either to guilt

or to punishment, irrespective of the good faith or bad faith of the prosecution.�� Lofton v.

State, 248 So. 3d 798, 810 (�43) (Miss. 2018) (quoting Brady, 373 U.S. at 87). This includes

impeachment evidence. Manning v. State, 929 So. 2d 885, 891 (�15) (Miss. 2006). The

Mississippi Supreme Court has articulated a four-prong test applicable in determining

whether a defendant has proved that a Brady violation has occurred, as follows:

The defendant must prove: (a) that the State possessed evidence favorable to

the defendant (including impeachment evidence); (b) that the defendant does

not possess the evidence nor could he obtain it himself with any reasonable

diligence; (c) that the prosecution suppressed the favorable evidence; and (d)

that had the evidence been disclosed to the defense, a reasonable probability

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exists that the outcome of the proceedings would have been different.

Id. (citation omitted).

�32. �[E]vidence is not deemed suppressed if the defendant either knew, or should have

known, of the essential facts permitting him to take advantage of any exculpatory evidence.�

Lofton, 248 So. 3d at 810 (�43) (citation and internal quotation mark omitted). �And the

State has no obligation to furnish a defendant with exculpatory evidence that is fully

available to the defendant or that could be obtained through reasonable diligence. Id.

�33. We review alleged Brady violations de novo, Thomas v. State, 45 So. 3d 1217, 1219

(�7) (Miss. Ct. App. 2010), �though we defer to factual findings underlying the [trial court�s]

decision.� United States v. Swenson, 894 F.3d 677, 683 (5th Cir. 2018). After review, we

find that Blakely has not made a cognizable Brady claim.

�34. First, we find no evidence in the record that the State �possessed� impeachment or

exculpatory evidence with respect to Arrington. Citing Kyles v. Whitley, 514 U.S. 419

(1995), among other cases, Blakely asserts that the State was obligated to learn of

Arrington�s existence because Arrington had spoken to Sheriff Kemp. Id. at 437. However,

the State asked Arrington in cross-examination, �[W]hen you spoke to the sheriff and said[,]

�What went on in there, that ain�t right,� did you provide him any of the details that you

provided to the Court today?� Arrington responded, �No. No.� As the trial court found,

Arrington�s statement to Sheriff Kemp had no substantive facts to support it, and we find that

Arrington�s vague statement to Sheriff Kemp did not constitute exculpatory or impeachment

evidence.

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�35. Second, even if we could find that the State had exculpatory or impeachment evidence

with respect to Arrington, such �evidence is not deemed suppressed if the defendant either

knew, or should have known, of the essential facts permitting him to take advantage of any

exculpatory evidence.� Lofton, 248 So. 3d at 810 (�43) (citation and internal quotation mark

omitted). In this case, Arrington testified that he was at McFarland�s habeas corpus hearing

at the request of a McFarland family member. Arrington further testified that he told Sheriff

Kemp that he intended to �tell what he saw� if he were subpoenaed by the defendant to

testify at trial. It is plain that Blakely�s co-defendant, McFarland, knew of Arrington�s

existence and Blakely�s own trial counsel obtained the transcript of McFarland�s habeas

corpus hearing two weeks before trial. Although the defendants� current trial counsel told

the trial court that they did not have a joint defense agreement, there is no indication in the

record that the defendants� prior lawyers did not share information.

�36. Similarly, case precedent also establishes that the State is not obligated �to furnish a

defendant with exculpatory evidence that is fully available to the defendant or that could be

obtained through reasonable diligence.� Id., see Rector v. Johnson, 120 F.3d 551, 558-59

(5th Cir. 1997) (�The State has no obligation to point the defense toward potentially

exculpatory evidence when that evidence . . . can be discovered by exercising due

diligence.�). Defense counsel admitted that he knew from the police report that there were

other people present when the incident occurred, but he simply failed to investigate this

avenue further. As the trial court found, and as the record reflects, counsel did not seek a

continuance for further discovery when he was appointed as Blakely�s counsel only six

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months before trial, nor did he seek a continuance before trial started once he claims he

discovered Arrington. The trial court specifically asked defense counsel whether Blakely

was out on bond, and defense counsel responded that he was. Thus, the trial court confirmed

that seeking a continuance would not have prejudiced Blakely, as he was not confined.

�37. Defense counsel told the trial court that he had conferred with his client several times

and reviewed the discovery furnished by the State. He did not, however, do any other

investigation. He admitted to the trial court that it was Blakely, not himself, that located

Arrington.

�38. In short, our review of the record reveals that any information about Arrington or any

information he may have had was fully available to Blakely or could have been obtained in

the exercise of due diligence. Accordingly, we find that even if Blakely could prove that the

State �possessed� exculpatory or impeachment evidence with respect to Arrington, the State

was under no obligation to furnish it to Blakely. Lofton, 248 So. 3d at 810 (�43). Blakely

has not established a Brady violation, and we find this issue is without merit.

C. Discovery Violation

�39. Blakely also asserts that the trial court erred when it excluded Arrington�s testimony

as a discovery sanction. The Court�s standard of review on this issue is as follows:

The standard applied for appellate review of a trial court�s sanction for

discovery abuses is whether the trial court abused its discretion in its decision.

Upon weighing all relevant factors in the case, unless there is clear error in

judgment as to the sanctions imposed for violation of the discovery rule, this

Court will affirm the imposed sanction.

Pelletier v. State, 207 So. 3d 1263, 1268 (�24) (Miss. Ct. App. 2016) (citations and internal

16

quotation marks omitted). We find that the trial court did not abuse its discretion in

excluding Arrington�s testimony in this case.

�40. We first address the trial court�s determination that Blakely violated his discovery

obligations when he failed to serve reciprocal discovery concerning Arrington in this case.

Mississippi Rule of Criminal Procedure 17, applicable in this case,5

sets forth a defendant�s

discovery obligations, as follows:

If the defendant requests discovery under Rule 17, the defendant shall, subject

to constitutional limitations, promptly disclose to the prosecutor . . . the

following information and material . . . 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 statement made

by any such witness. . . .

MRCrP 17.3 (emphasis added).

�41. In addressing the State�s motion to exclude Arrington�s testimony at trial, the trial

court questioned Blakely�s counsel regarding his discovery obligations. The record reflects

that Blakely�s counsel had requested and received discovery from the State, but the defense

did not furnish any written reciprocal discovery. On the morning of the first day of trial,

Blakely�s counsel told the State about Arrington and the substance of the testimony

5 As noted, the trial court referred to Rule 9.04 of the Uniform Rules of Circuit and

County Court Practice in ruling on this issue. Blakely and McFarland were indicted and

tried in 2018, after the Mississippi Rules of Criminal Procedure were adopted and made

effective July 1, 2017. For accuracy, we refer to Rule 17 of the Mississippi Rules of

Criminal Procedure.

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Arrington was expected to give�namely that he was a witness to the defendants� stop and

arrest and that his version of the events that occurred was not the same as that of the officers�

accounts that Arrington had heard at McFarland�s habeas corpus hearing in September 2017.

�42. In determining that Blakely had violated his discovery obligations, the trial court

found that in �the exercise of due diligence,� Blakely�s counsel should have known of

Arrington�s existence and the substance of his testimony prior to trial and provided it to the

State in advance of trial. MRCrP 17.3(1). As we have addressed above and as we will

address in further detail in the following paragraphs, Blakely�s counsel exercised no such due

diligence. We find no abuse of discretion in the trial court�s determination that Blakely

violated his discovery obligations by failing to timely furnish Arrington�s name, address, and

the substance of his testimony in reciprocal discovery. Id.; see Davis v. State, 243 So. 3d

222, 236 (�64) (Miss. Ct. App. 2017).

�43. Blakely asserts, however, that the trial court�s decision to exclude Arrington�s

testimony as a discovery sanction was reversible error. The State moved to exclude

Arrington�s testimony after interviewing Arrington twice, as well as Roberts (the other

witness Blakely sought to call, but later withdrew),6

asserting that there was no time to

6 Defense counsel did not confirm that he intended to call Arrington (and Roberts)

until after the jurywas empaneled and sworn in�i.e., after the trial had begun. See 3 Jeffrey

Jackson & Mary Miller, Encyclopedia of Mississippi Law, � 23:313, 875 (2d ed. 2016)

(�Double jeopardy attaches in any criminal proceeding at the moment the trial jury is

selected and sworn to try the case.�). Under Mississippi Rule of Criminal Procedure 17.9:

If, during the course of trial, the [defense] attempts to introduce evidence

which has not been timely disclosed to the [prosecution] as required by these

Rules and the [prosecution] objects to the introduction for that reason, the

court shall . . . [g]rant the [prosecution] a reasonable opportunity to interview

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investigate the matter further or determine whether there was impeachable evidence with

respect to Arrington�s own testimony.

7



�44. We recognize that under Mississippi Rule ofCriminalProcedure 17.9, the State would

ordinarily be required to request a continuance �before . . . complain[ing] of the admission

of previously undisclosed evidence.� De La Beckwith v. State, 707 So. 2d 547, 574 (�101)

(Miss. 1997).8 Nevertheless, �a request for a continuance is not a prerequisite to the

exclusion of such evidence . . . . [T]he [State�s] failure to [request a continuance] does not

abrogate the trial court�s discretion to exclude such evidence in certain circumstances.� Id.;

Pelletier, 207 So. 3d at 1270 (�32). As the supreme court has explained, �if the omission

was willful and motivated by a desire to obtain a tactical advantage that would minimize the

effectiveness of cross-examination and the ability to adduce rebuttal evidence, it [is] entirely

appropriate to exclude the witness�[s] testimony.� De La Beckwith, 707 So. 2d at 575 (�103)

(citation and internal quotation marks omitted); see Morris v. State, 927 So. 2d 744, 747 (�9)

(Miss. 2006); Davis, 243 So. 3d at 236-37 (�66).

the newly discovered witness . . . .

MRCrP 17.9(b)(1). The rule specifies that �the court shall follow the same procedure for

violation of discovery by [either the prosecution or] the defense.� MRCrP 17.9(b).

7 The State initially sought to exclude the testimonies of both Arrington and Roberts.

Ultimately, however, the defense informed the trial court that it no longer sought to call

Roberts as a witness after Arrington testified that Roberts was a schizophrenic who hears

voices and had stabbed himself in the pancreas.

8

In De La Beckwith, 707 So. 2d at 573-74 (��99-101), the Mississippi Supreme Court

discussed Uniform Criminal Rule of Circuit Court Practice 4.06, which is the predecessor

to Uniform Circuit and County Court Rule 9.04, which is the predecessor to the current

Mississippi Rule of Criminal Procedure 17.

19

�45. As stated, �the record must contain evidence that the defendant committed a discovery

violation to obtain a tactical advantage before exclusion becomes the appropriate sanction.�

Overton v. State, 195 So. 3d 715, 718 (�10) (Miss. 2016). We find that such evidence exists

in this case and we therefore affirm the trial court�s decision based upon the standard of

review we are required to apply: �Upon weighing all relevant factors in the case, unless there

is clear error in judgment as to the sanctions imposed for violation of the discovery rule, this

Court will affirm the imposed sanction.� Pelletier, 207 So. 3d at 1268 (�24) (emphasis

added). We find no �clear error� here and find that the trial court did not abuse its discretion

in excluding Arrington�s testimony in this case.

�46. We find Morris, 927 So. 2d at 747 (�9), instructive. In Morris, the defendant asserted

that the trial court erred when it excluded the testimony of two defense witnesses that were

disclosed by the defense the morning of trial. The supreme court disagreed, finding that the

discovery violation was wilful, and exclusion of the evidence was proper, where the

defendant gave the State a list of witnesses the morning that the trial began, and �[t]he only

reason proffered by [the defendant] for failure to designate [the] witnesses sooner was the

police department�s failure to find these witnesses and give the names to [the defendant]

through discovery.� Id. As the supreme court held:

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 [defendant�s] own failure to investigate and failure

to abide by the discovery rules is disingenuous at best. This issue is without

20

merit.

Id. (Emphasis added).

�47. The same analysis applies here. As the trial court determined, defense counsel had

been appointed as Blakely�s counsel six months before trial, and did not seek a continuance

for additional discovery at that time, nor did he seek a continuance or file a notice of newlydiscovered evidence with respect to Arrington prior to the start of trial, which were two

procedural avenues Blakely could have pursued. Speaking directly to Blakely�s counsel, the

trial court stated that, instead, �you wait[ed] until the jeopardy is attached to your client.�

Continuing, the trial court stated, �Give the Court some reason for this�other than the

purpose is intentionally done to either require this Court to declare a mistrial or declare that

you cannot present this witness . . . in your defense or give you the advantage that the State

doesn�t have the time to investigate.�

�48. The only reason given by defense counsel was that he could only present evidence of

Arrington when he learned of him�despite the fact that defense counsel admitted that he

�was aware that there were allegations that people had been out there . . . on that day, but

[that he] didn�t have any idea who they [were];� and that two weeks before trial he obtained

a copy of the transcript from McFarland�s habeas corpus proceeding that Arrington had

attended. Defense counsel admitted that it was his client, not himself, that located Arrington.

When asked by the trial court what he had done to prepare for trial, defense counsel revealed

that he merely relied on the State�s discovery and had discussed the case with his client

several times. Although the record reflects that defense counsel had access to his client and

21

the ability to confer with him, we find no evidence in the record that defense counsel

independently investigated the facts that surrounded the charges in the indictment. As the

supreme court held in Morris under similar circumstances, Morris, 927 So. 2d at 747 (�9),

we find that this issue is without merit.

�49. Ignoring these factors and the Morris v. State decision, the dissent asserts that

Arrington should not have been excluded in this case. The dissent relies on Overton v. State

for this proposition, a case in which the supreme court recognized that �[t]he 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.� 195 So. 3d at 718 (�10)

(internal quotations omitted). We agree with that principle. As we have addressed above,

however�and unlike the circumstances in Overton�the late discovery of Arrington in this

case was not the only evidence before the trial court when it determined that defense

counsel�s discovery violation warranted exclusion.

�50. Specifically, in Overton, 195 So. 3d at 718 (�11), the supreme court found that �[t]he

record contains no evidence that either the defendant or defense counsel withheld the

witnesses� identities to gain a tactical advantage. . . [and] 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.�� (Emphasis added). Continuing, the

supreme court said, �First, the trial judge never asserted that Overton or his counsel had

committed any willful discovery violation.� Id. (�12). On the contrary, �[t]he trial judge

stated that he �did not intend in any way to impute anything improper about counsel handling

22

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.�� Id. at 718-19 (�12). The supreme court concluded by observing, �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.�

Id. at 719 (�13).

�51. None of these circumstances are present in Blakely�s case. Rather, the trial court

admonished defense counsel for waiting �until . . . jeopardy is attached to your client,�

before confirming that counsel intended to call Arrington at trial; and the record is plain that

the trial court was not satisfied with the excuse defense counsel provided�that he just

learned of Arrington the night before. In that regard, the trial court further admonished

counsel for failing to pursue other procedural options available to him, such as seeking a

continuance when he was appointed as Blakely�s counsel six months before trial, or filing

a notice of newly discovered evidence with respect to Arrington before trial started. The

trial court also found fault with defense counsel�s failure to independently investigate the

facts, instead relying on the discovery provided by the State and a few discussions with his

client. In short, we cannot agree with the dissent�s assertions on this point. We find that

Overton is wholly distinguishable on its facts and inapplicable here.

II. Defective Indictment

�52. Blakely asserts that Count I of the indictment was fatally defective because it

identified the controlled substance at issue, cocaine, as a Schedule I controlled substance

23

when it is actually a Schedule II controlled substance. We �review[] de novo the question

of whether an indictment is fatally defective.� Townsend v. State, 188 So. 3d 616, 619 (�10)

(Miss. Ct. App. 2016). Our review of the record reveals that Blakely did not object to the

indictment at trial. As we will explain below, the incorrect classification of cocaine in the

indictment was one of form, not of substance, and thus Blakely, by failing to object at trial,

waived this issue for appellate review. See Jerninghan v. State, 910 So. 2d 748, 750 (�4)

(Miss. Ct. App. 2005) (�When the formal defect is curable by amendment the failure to

demur to the indictment in accordance with our statute will waive the issue from

consideration on appeal.�) (citations and internal quotation marks omitted). Procedural bar

notwithstanding, we also address the merits of this assignment of error, and find it without

merit for the reasons addressed below.

�53. Mississippi Rule of Criminal Procedure 14.1 provides that �[t]he indictment upon

which the defendant is to be tried shall be a plain, concise and definite written statement of

the essential facts and elements constituting the offense charged and shall fully notify the

defendant of the nature and cause of the accusation.� As the supreme court has held:

An indictment must contain (1) the essential elements of the offense charged,

(2) sufficient facts to fairly inform the defendant of the charge against which

he must defend, and (3) sufficient facts to enable him to plead double jeopardy

in the event of a future prosecution for the same offense.

Gilmer v. State, 955 So. 2d 829, 836-37 (�24) (Miss. 2007).

�54. The indictment in this case provided that Blakely and McFarland �as part of a

common plan or scheme or as part of the same transaction or occurrence in [Clarke] County

. . . on or about [August 8, 2017,] . . . did wilfully, unlawfully, and feloniously and knowingly

24

traffic 118.379 grams of Cocaine, a Schedule I controlled substance, in violation of

[Mississippi Code Annotated] [s]ection 41-29-139(f)(c) . . . .�

�55. The trafficking statute, section 41-29-139(f), provides:

Trafficking. (1) Any person trafficking in controlled substances shall be guilty

of a felony and, upon conviction, shall be imprisoned for a term of not less

than ten (10) years nor more than forty (40) years . . . . The ten-year

mandatory sentence shall not be reduced or suspended. The person shall not

be eligible for probation or parole, the provisions of Sections 41-29-149,

47-5-139, 47-7-3 and 47-7-33, to the contrary notwithstanding.

. . . .

(2) �Trafficking in controlled substances� as used herein means:

. . . .

(C) A violation of subsection (c) of this section

involving thirty (30) or more grams . . . of a

Schedule I or II controlled substance except

marijuana and synthetic cannabinoids . . . .

(Emphasis added). �[S]ubsection c� referenced in Section 41-29-139(f)(2)(C) provides that

�[i]t is unlawful for any person knowingly or intentionally to possess any controlled

substance� that is not obtained by a valid prescription, and specifies that the penalties for any

violation �with respect to a controlled substance classified in Schedules I, II, III, IV or

V . . . shall be based on . . . the weight of the controlled substance.� (Emphasis added).

�56. Upon review of the plain language of the indictment and the applicable charging

statute, we find that the reference in the indictment to cocaine as a Schedule I, rather than a

Schedule II, controlled substance did not render the indictment fatally defective. This is so

because the nature of the charge and its penalty in this case is governed by the weight of the

cocaine involved, not whether it is identified as a Schedule I or II controlled substance. In

25

particular, a violation of the trafficking statute occurs in instances �involving thirty . . . or

more grams . . . of a Schedule I or II controlled substance,� Miss. Code Ann. � 41-29-

139(f)(2)(C) (emphasis added); and the penalty imposed is based upon �the weight of the

controlled substance,� Miss. Code Ann. � 41-29-139(c), not by its classification. As such,

the indictment was not fatally defective. Cf. Jones v. State, 215 So. 3d 508, 512 (�12) (Miss.

Ct. App. 2017) (indictment lacking weight of cocaine not defective where penalty was the

same regardless of the precise quantity sold); Fair v. State, 93 So. 3d 56, 58-59 (��7-8)

(Miss. Ct. App. 2012); Smith v. State, 973 So. 2d 1003, 1006-07 (�10) (Miss. Ct. App. 2007).

�57. Applicable case precedent establishes that �so long as from a fair reading of the

indictment, taken as a whole, the nature and cause of the charge against the accused are clear,

the indictment is legally sufficient.� Harrison v. State, 722 So. 2d 681, 687 (�22) (Miss.

1998). Further, �the purpose of the indictment is to provide the accused reasonable notice

of the charges against him so that he may prepare an adequate defense.� Ludwig v. State, 147

So. 3d 360, 362 (�6) (Miss. Ct. App. 2014). In this case, the indictment cited the charging

statute, named the substance involved (cocaine), and included the weight of the cocaine

(118.379 grams)�Blakely was plainly notified of the nature of the charge against him and

the potential penalties he faced. We find no merit in this assignment of error.9



9Blakely also appears to assert that his �conviction and sentence in this matter should

be overturned� because the jury instruction on this charge also contained the same

misidentification of cocaine as a Schedule I, rather than as a Schedule II, controlled

substance. Blakely offers no further argument or explanation for this contention in his brief,

nor does he cite any authority to support this contention. We therefore decline to address

it. M.R.A.P. 28(a)(7) (The appellant�s brief must �contain the contentions of appellant with

respect to the issues presented, and the reasons for those contentions, with citations to the

authorities, statutes, and parts of the record relied on.�); In re Estate of Forrest, 165 So. 3d

26

III. The Constitutionality of Section 41-29-139(f)(2)(C), As Applied

�58. Blakely asserts that his rights to be free from cruel and unusual punishment under the

Eighth and Fourteenth Amendments of the United States Constitution, and under Article 3,

Section 28 of the Mississippi Constitution (prohibiting cruel or unusual punishment), were

violated by what he claims was an unconstitutional application of the trafficking sentencing

guidelines under section 41-29-139(f)(2)(C), set forth above. According to Blakely, these

rights were violated because he was indicted and sentenced under the trafficking provision

of the Uniform Controlled Substances Law (section 41-29-139(f)(2)(C)) and therefore

received a harsher penalty than if he had been indicted and sentenced under the �simple

possession� provision of the Uniform Controlled Substances Law (section 41-29-139(c)).

�59. Blakely does not cite any authority to support this contention and thus he is

procedurally barred from asserting it. In re Estate of Forrest, 165 So. 3d at 550 (�7).

�60. Procedural bar notwithstanding, we also find no merit in Blakely�s assertions.

Addressing an argument similar to Blakely�s in Stromas v. State, 618 So. 2d 116, 123 (Miss.

1993), the supreme court upheld the defendant�s enhanced sentence as a habitual offender,

observing that �[d]rug offenses are very serious and the public has expressed grave concern

with the drug problem. The legislature has responded in kind with stiff penalties for drug

offenders. It is the legislature�s prerogative and not this Court�s to set the length of

sentences.� See also Hathorne v. State, 267 So. 3d 798, 801 (�10) (Miss. Ct. App. 2018),

548, 550 (�7) (Miss. Ct. App. 2015) (�It is well settled under Mississippi caselaw that failure

to cite any authority is a procedural bar, and a reviewing court is under no obligation to

consider the assignment.� (citation and internal quotation mark omitted)).

27

cert. denied, 267 So. 3d 281 (Miss. 2019).

�61. In this regard, �in the context of our habitual statutes, as well as in sentencing other

offenders,� Stromas, 618 So. at 123, the supreme court �has recognized the broad authority

of the legislature and trial court[s] in this area and ha[s] repeatedly held that where a sentence

is within the prescribed statutory limits, it will generally be upheld and not regarded as cruel

and unusual.� Id. at 123-24. This Court follows the same principle. See, e.g., Passman v.

State, 937 So. 2d 17, 24 (�23) (Miss. Ct. App. 2006); Maldonado v. State, 796 So. 2d 247,

261-62 (��44-47) (Miss. Ct. App. 2001).

�62. In this case, Blakely was sentenced to serve twenty years, which is well within the

statutory guidelines under section 41-29-139(f) that allows for �imprison[ment] for a term

of not less than ten . . . years nor more than forty. . . years.� Accordingly, under the

precedent discussed above, we find Blakely�s assignment of error on this point without merit.

AFFIRMED