Hickson v. State, 93-CT-00518-SCT

• Decision Date: 19 June 1997
• Docket Number: No. 93-CT-00518-SCT,93-CT-00518-SCT
• Citation: 697 So.2d 391
• Parties: Brian Clayton HICKSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 391

697 So.2d 391

Brian Clayton HICKSON v. STATE of Mississippi.

No. 93-CT-00518-SCT.

Supreme Court of Mississippi.

June 19, 1997.

J. Boyce Holleman, Tim C. Holleman, D. Jeffrey White, Gulfport, for appellant.

Michael C. Moore, Atty. Gen., Jolene M. Lowry, Special Asst. Atty. Gen., Jackson, for appellee.

En Banc.

ON PETITION FOR WRIT OF CERTIORARI

SULLIVAN, Presiding Justice, for the Court:

Introduction

This matter comes before the Court, en banc, after granting petitioner's application for writ of certiorari. Brian C. Hickson was convicted of sexual battery following a jury trial on March 22 and March 23, 1993, in the Second Judicial District of the Circuit Court of Jones County, Mississippi. He was subsequently sentenced to serve thirty years in the custody of MDOC. Upon appeal, the Court of Appeals affirmed the trial court decision on October 1, 1996, and denied the petition for rehearing on January 4, 1997. The petition for writ of certiorari was filed with this Court on January 24, 1997, and granted on March 13, 1997.

The following issues were raised for certiorari review:

A. THE COURT OF APPEALS WAS INCORRECT IN AFFIRMING THE TRIAL COURT'S DENIAL OF HICKSON'S MOTION FOR A NEW TRIAL IN LIGHT OF THE STATE'S FAILURE TO TIMELY DISCLOSE TWO WITNESSES' IDENTIFICATION OF HICKSON AS THE ALLEGED PERPETRATOR OF THE SEXUAL BATTERY IN QUESTION; B. THE COURT OF APPEALS INCORRECTLY HOLDS THAT THE DEFENDANT DID NOT PROPERLY PRESERVE THE ERROR IN THE TRIAL COURT IN DENYING DEFENDANT'S MOTION IN LIMINE AS TO THE PRIOR CONVICTION AND THE CHILLING EFFECT ON HIS RIGHT TO TESTIFY; C. THE COURT OF APPEALS WAS INCORRECT IN HOLDING THE STATE WAS ALLOWED TO QUESTION HICKSON'S WIFE CONCERNING HER SILENCE AFTER HER HUSBAND'S ARREST; D. THE COURT OF APPEALS WAS INCORRECT IN HOLDING THE STATE WAS ALLOWED TO QUESTION HICKSON'S WIFE CONCERNING HER REFUSAL TO SPEAK TO REPRESENTATIVES OF THE PROSECUTION.

Facts

A brief overview of the facts will be given, as they are not particularly relevant to the petition for writ of certiorari.

On Sunday, January 28, 1990, Tara Bush was working at Vance Video Rental. At the close of the work day, a man entered the store, held a gun to Tara's head, and forced her into the back room. Tara's mother, Martha Dow, was in the restroom adjacent to the back room. Hickson opened the door to the restroom, displayed his gun, and told Martha Dow that if she came out he would shoot her and her daughter. Hickson then fondled Tara Bush, taped her eyes shut, and placed his fingers in her vagina. Martha Dow told Hickson through the closed door that Tara's father would arrive soon. Hickson departed.

Issues raised for certiorari review

A. THE COURT OF APPEALS WAS INCORRECT IN AFFIRMING THE TRIAL COURT'S DENIAL OF HICKSON'S MOTION FOR A NEW TRIAL IN LIGHT OF THE STATE'S FAILURE TO TIMELY DISCLOSE TWO WITNESSES' IDENTIFICATION OF HICKSON AS THE ALLEGED PERPETRATOR OF THE SEXUAL BATTERY IN QUESTION.

B. THE COURT OF APPEALS INCORRECTLY HOLDS THAT THE DEFENDANT DID NOT PROPERLY PRESERVE THE ERROR IN THE TRIAL COURT IN DENYING DEFENDANT'S MOTION IN LIMINE AS TO THE PRIOR CONVICTION AND THE CHILLING EFFECT ON HIS RIGHT TO TESTIFY.

C. THE COURT OF APPEALS WAS INCORRECT IN HOLDING THE STATE WAS ALLOWED TO QUESTION HICKSON'S WIFE CONCERNING HER SILENCE AFTER HER HUSBAND'S ARREST.

D. THE COURT OF APPEALS WAS INCORRECT IN HOLDING THE STATE WAS ALLOWED TO QUESTION HICKSON'S WIFE CONCERNING HER REFUSAL TO SPEAK TO REPRESENTATIVES OF THE PROSECUTION.

A.

Hickson asserts that he is entitled to a new trial because the State failed to timely disclose Tara and her mother's identifications of Hickson as the perpetrator of the sexual battery, in violation of Uniform Criminal Rule of Circuit Court Practice 4.06. ¹

After Hickson was charged with the offense of sexual battery, he was provided discovery pursuant to a request under Rule 4.06 of the Uniform Criminal Rules. That discovery contained a photo line-up report concerning statements of Tara Bush and Martha Dow being unable to identify Hickson as the assailant. The report, dated January 8, 1992, states:

On 27 October 91, [Police Chief] Bush met with Tara Bush at her residence and allowed the victim to view the mentioned photo-spread. The victim pointed to a photo of Hickson as who she thought the assailant to be; however, the victim stated that she didn't think that she could swear to this identification in a court of law.

Concerning Mrs. Dow's statement the report states:

On 28 October 91, [Police Chief] Bush met with the victim's mother, Martha Dow (a witness in this case) at Dow's residence. Dow viewed the same photo-spread and could not make an identification. Dow picked Hickson's photo, but stated that, "it looks like this guy, but I just can't be sure."

However, at trial, Martha Dow testified that "I told him [Chief Bush] that I was 99 percent sure that it was him." Tara Bush, when asked by the State if she was 100 percent sure it was him, replied in the affirmative stating, "I knew it was him but I just wanted to be sure, I wanted to see him." ²

These new positive identifications by the two witnesses that Hickson was Tara's assailant, which the State knew existed prior to trial, were never provided to defense counsel. Upon discovery of the Rule 4.06 violation, defense counsel moved for a mistrial which was denied. The Court of Appeals affirmed the trial court's denial of a mistrial. Rule 4.06 reads as follows:

If during the course of trial, the prosecution attempts to introduce evidence which has not been timely disclosed to the defense as required by these rules, and the defense objects to the introduction for that reason, the court shall act as follows:

1. Grant the defense a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs or other evidence; and

2. If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the court shall ... exclude the evidence or grant a continuance ... for the defense to meet the non-disclosed evidence or grant a mistrial.

The Court of Appeals opined that no discovery violation had occurred because the "trial court ruled that Hickson's original counsel [the same counsel had represented Hickson throughout the proceedings in question--there was no change of counsel] had been informed of the positive identifications" and that "the trial court ruled the positive identifications had appeared in the local press."

The Court of Appeals appears to have incorrectly stated the case. The State failed to state on the record that it had properly supplemented discovery regarding the subsequent change in the eyewitnesses identifications, and the trial court did not rule "that Hickson's original counsel had been informed of the positive identifications" or that "the positive identifications had appeared in the local press." The trial court actually stated:

THE COURT: I think Mr. Holleman was properly advised that was the situation. I don't know if you were ever aware or not, but at such time as Mr. Holleman was in the case, he was fully aware that there was an identification made--out was my understanding.

THE COURT: I would hate to have to refer to a newspaper or television account, but I think it was even published in the newspaper and on television that the Defendant had made an identification--[sic]

MR. BUCKLEY: Do you mean the victim?

THE COURT:--the victim had made an identification of the defendant.

It appears that the Court of Appeals based its decision on what the trial court "thought" happened, or its "understanding" or belief that it appeared in the news, not what actually happened. This does not meet the requirement of the rule that discovery be supplemented, nor does the above meet the substantial evidence required under Moore v. State, 587 So.2d 1193 (Miss.1991) and Woodward v. State, 533 So.2d 418 (Miss.1988).

Hickson argues that "Rule 9.04 provides for several remedies if it is violated, one of which is a mistrial. In this case, because of the sand bagging by the prosecution in failing to provide supplemental discovery, the surprise to the defense came on cross-examination of the eyewitnesses, Bush and Dow, and it was too late to do anything other than grant a mistrial." Hickson cites Galloway v. State, 604 So.2d 735 (Miss.1992) and Mack v. State, 650 So.2d 1289 (Miss.1994) in support of his argument. In Mack this Court held:

.... In addition to the initial disclosure, the prosecutor had a continuing duty to supplement.

As such, it is clear that the prosecutor violated Rule 4.06 because he was aware of Dawkins' statement, especially when the prosecutor knew that he would call Dawkins to corroborate Reynold's testimony about the threat.

Id. at 1315.

In Galloway v. State, 604 So.2d 735 (Miss.1992), in reversing and remanding on a Rule 4.06(i)(1) violation, this Court held:

... The prosecution had a continuing duty to make discovery of "additional material or information which is subject to disclosure" which a party becomes aware of "subsequent to compliance with these rules or orders pursuant thereto." See Rule 4.06(e). We have consistently enforced this continuing duty to make discovery. See Stewart v. State, 512 So.2d 889, 891-2 (Miss.1987); Foster v. State, 484 So.2d 1009, 1011 (Miss.1986); Acevedo v. State, 467 So.2d 220, 224 (Miss.1985).

Id. at 740.

This Court went on to hold:

Our answer today is easy. Presley's testimony quite simply gutted the defense theory of the case. It was error that Galloway was not given fair advance notice thereof, nor reasonable opportunity to meet it. This error was anything but harmless.... We reverse and remand for a new trial on all issues.

Id.

The failure by the State to supplement discovery pursuant to Rule 6.04 is reversible error, as the defense appears to have been "ambushed" by the prosecution's failure to supplement discovery as required by the...