Six Grand v. Miss. Bureau of Narcotics. In this case, a citizen fled a license checkpoint and then crashed his car. When apprehended, officers found six grand and some cocaine. The state sought forfeiture. Two state witnesses were previously disclosed as fact witnesses only during discovery, but two weeks before trial, the state designated them as expert witnesses. “On the morning of trial, Brown, noting that he had received notice of the expert designations two weeks prior to trial, in violation of Rule 4.04A, stated: ‘So, I am just objecting to any expert testimony elicited from either [designated expert witness].” At no time did defendant’s counsel request a continuance.
Circuit Court Rule 4.04A provides that “[a]bsent special circumstances, the court will not allow testimony at trial of an expert witness who was not designated as an expert witness to all attorneys of record at least sixty days before trial.” The Court of Appeals held that even though the state had violated Rule 4.04A and failed to timely designate expert witnesses, the defendant had waived the issue since he did not request a continuance. The court also noted that special circumstances were present due to the fact that the witnesses were previous identified as fact witnesses, the documents they were going to testify to were disclosed, and it was a bench trial.
In explaining this waiver, the Court of Appeals relied upon a criminal case, Box v. State, and held that it provided the procedure for courts to follow in such discovery violations. Box v. State, 437 So. 2d 19 (Miss. 1983). These procedures which the Court of Appeals seeks to now impose upon trial courts are found in a specially concurring opinion by Justice Jimmy Robertson, and only joined by two other justices. The majority opinion was joined by eight justices. Thus, a majority of the court (five justices) did not join in the specially concurring opinion.
In any event, the Supreme Court later adopted many of these procedures but only as they relate to criminal cases. In 1995 the Circuit rules were amended and Rule 9.04 adopted many of Justice Robertson’s suggestions as it relates to criminal cases. See Powell v. State, 925 So. 2d 878 (Miss. App. 2005) (recognizing the Box decision was superseded by rule).
That is not to say that there are no cases out there in Mississippi that hold that a party has waived their objection to untimely disclosure of evidence by failing to seek continuance or mistrial. Indeed, there are. The lesson here is that the courts appear much more willing to play the “gotcha” game and are prone to excuse clear discovery violations if the magic words are not spoken by the aggrieved party. Here is the case.
By Brad Best