The Court amends MRAP 22(d) regarding the qualifications of lawyers representing death-sentenced inmates. See the amended version here.
Preston Overton v. State – sanction of exclusion of witnesses – The Court reverses an affirmance by the COA in a case where the trial court excluded two of the defendant’s witnesses because they were not timely disclosed. Mississippi law is clear that exclusion may be had only where the trial court makes a finding that the failure to disclose was to gain a tactical advantage. Here, Overton was charged with possession of cocaine and felon in possession of a firearm. The day before trial he disclosed the names of two witnesses who would testify regarding the search and arrest. The trial court excluded them without making any findings as to the reasons for the late disclosure. He did allow a proffer of their testimony.
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.’” “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.” “[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.’”