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Sullivan v. State

August 18, 1998

ALFRED SULLIVAN, JR., APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE



EN Banc.

The opinion of the court was delivered by: McMILLIN, P.j., For The Court:

Sullivan v. State, 96-KA-00253-COA

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

DATE OF JUDGMENT: 12/06/95

TRIAL JUDGE: HON. KOSTA N. VLAHOS

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: ARMED ROBBERY: SENTENCED TO 4 YEARS IN CUSTODY OF MDOC; DEFENDANT SHALL SERVE DAY TO DAY WITHOUT PROBATION OR PAROLE

DISPOSITION REVERSED AND REMANDED

Alfred Sullivan appeals his conviction of armed robbery. He presents one issue on appeal. That issue involves a claim that the trial court erred in denying Sullivan the right to call a witness in his defense. We agree that the trial court erred in the handling of the matter. Because this error directly implicates the defendant's Sixth Amendment rights, we are unable to conclude that the error was harmless. We, therefore, reverse and remand for a new trial.

I.

Facts

Sullivan was accused of committing an armed robbery across the street from Bankston's Cafe in the City of Gulfport. The victim claimed to have been approached from behind by an assailant. He said he glimpsed a black semi-automatic weapon in the hands of his assailant. He also claimed to have seen his assailant's face and testified that Sullivan was, in fact, the person who robbed him of a one hundred dollar bill. Sullivan was arrested shortly after the incident in Bankston's Cafe and was found to be in possession of a one hundred dollar bill. He was arrested and charged with armed robbery. No weapon was ever discovered.

There was no legitimate dispute on Sullivan's part that he was at Bankston's Cafe at the time of the alleged robbery. The strategy of the defense consisted primarily of an effort to demonstrate that the State could not establish, beyond a reasonable doubt, that Sullivan was ever in possession of a firearm on the night of the robbery. In furtherance of that proposition, the defense proposed to call Cheryl Penns. It appears that Penns was prepared to testify that she had accompanied Sullivan to Bankston's Cafe on the night in question and had remained with him throughout the evening and that, to her knowledge, Sullivan had not been in possession of a firearm.

Sullivan had not disclosed Penns as a potential witness prior to trial. The defense claimed that Penns only came forward as a potential witness on the day before trial and that the defense immediately notified the State of its intentions to call her. The State moved to exclude Penns' testimony based on surprise. Defense counsel suggested that, conceding for sake of argument that a discovery violation had occurred, the problem could be cured by offering the State an opportunity to interview Penns. The trial court then recessed the case for the remainder of the day and ordered that the prosecution be afforded an opportunity to interview Penns.

The next morning, the prosecution renewed its objection to permitting Penns to testify. The State, at that point, changed the thrust of its argument somewhat. The prosecution represented to the trial court that Penns was an alibi witness and that it would violate the provisions of Uniform Circuit and County Court Rule 9.05 to permit the defense to spring an alibi witness on the prosecution at the last moment. Defense counsel countered that Penns was not being called for the purpose of establishing an alibi, but was being offered for the purpose of testifying that Sullivan was not in possession of a firearm on the night in question. The State then argued that, if Penns so testified, the State would necessarily have to make inquiry on cross-examination as to whether Sullivan was constantly in her sight the entire evening, the purpose being to demonstrate to the jury that, even if it believed Penns, there was the possibility that Sullivan armed himself and committed the crime during an interlude when he and Penns were temporarily separated, and then disposed of the weapon before rejoining Penns. The State further represented that, based on its interview with Penns, if that line of cross-examination was pursued, she was prepared to respond that Sullivan never left her presence on that evening. According to the State's argument, that anticipated assertion necessarily made Penns an alibi witness.

The trial court agreed with the State and denied Sullivan the right to call Penns. The jury subsequently returned a verdict of ...


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