State of Mississippi v. Brandon C. Blendon ( 1996 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 96-KA-01339-SCT
STATE OF MISSISSIPPI, HARRISON COUNTY DISTRICT ATTORNEY'S OFFICE AND
STATE OF MISSISSIPPI CRIME LABORATORY
v.
BRANDON C. BLENDEN
CONSOLIDATED WITH
NO. 97-KA-00073-SCT
BRANDON C. BLENDEN
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 10/28/96
TRIAL JUDGE: HON. JOHN H. WHITFIELD
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS: OFFICE OF THE ATTORNEY GENERAL
BY: LAWRENCE ARTHUR SCHEMMEL
ATTORNEYS FOR APPELLEE: ROGER WAYNE WOODALL
KAREN J. YOUNG
JOSEPH R. MEADOWS
DISTRICT ATTORNEY: CONO CARANNA
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 6/24/1999
MOTION FOR REHEARING FILED: 7/1/99; denied 01/13/2000
MANDATE ISSUED: 01/20/2000
EN BANC.
BANKS, JUSTICE, FOR THE COURT:
¶1. We have for review the imposition of monetary sanctions against the State and a political subdivision for
a discovery violation which necessitated a mistrial in a criminal case and is the occasion for the defendant's
double jeopardy claim. We conclude that the record was sufficient to support the trial court's determination
that the State committed discovery violations and that the trial court's imposition of sanctions did not violate
the separation of powers doctrine. We also find that the retrial did not subject the defendant to double
jeopardy. Accordingly, we affirm the defendant's conviction, and we affirm the trial court's judgment
imposing monetary sanctions.
I.
¶2. On June 23, 1995, Brandon C. Blenden ("Brandon") was indicted on charges of felony DUI resulting in
the death of a child. A sample of Brandon's blood was taken shortly after the accident. The Mississippi
Crime Laboratory's toxicology department (the "Crime Lab") tested the blood sample in order to determine
its blood-alcohol content. The test involved the use of a Gas Chromatograph machine. In utilizing this
machine the Crime Lab purchases "known standards," which are solutions of known concentrations of
alcohol, ranging in concentrations from .05% to .40%. These known solutions are to be used to calibrate
the Chromatograph machine and each time an analysis is performed, to ensure the machine is operating
properly. Prior to trial the defense filed various motions requesting discovery regarding the operation,
calibration and/or repair history of the machine used to measure the blood-alcohol content of Brandon's
blood.
¶3. The first trial commenced on June 24, 1996. During the trial Sam Howell ("Howell"), the forensic
toxicologist who supervised the Crime Lab's Toxicology Department, was called to testify as to Brandon's
blood-alcohol content at the time the blood sample was taken. Howell stated that the "known standards"
used to calibrate the machine were checked against "known standards" of the same concentration, but
which were purchased from different suppliers. Howell also testified that, while he had analyzed the results
of the test, Archie Meashan Hales ("Hales"), a technician in the Toxicology Department, actually sampled
the blood and placed it in the machine. Howell was not present when Hales sampled Brandon's blood.
Rather, Howell analyzed the results after the tests were run by Hales.
¶4. Based on Howell's testimony the defense claimed that the prosecution had committed discovery
violations and moved for a mistrial. The defense alleged that prior to trial the prosecution had disclosed the
name of only one supplier of the "known standard"and had failed to disclose the names of the other two
suppliers or the fact that the "known standards" were compared to determine if they were accurate. The
defense also claimed that it was entitled to a mistrial because the prosecution's failure to reveal that Hales
did the actual sampling of the blood and ran the Chromatograph machine, violated Brandon's right to
confrontation. This motion for a mistrial was overruled by the trial court.
¶5. Next the defense moved to have the State reopen its case and put Hales on the witness stand so that
Brandon could confront and cross-examine him as to the blood tests he performed. The defense also
moved to strike the testimony of Howell regarding the results of the blood tests on the grounds that without
Hales's testimony a proper foundation had not been laid for Howell's testimony. The trial court granted the
motion to have the State reopen its case, but reserved ruling on the motion to strike until after Hales had
testified. As a result the defense withdrew its motion to have the State reopen its case. The State then made
its own motion to reopen its case in chief for the purpose of having Hales testify, which the trial court
granted.
¶6. Once on the stand, Hales testified that he had sampled Brandon's blood and placed the sample in the
Chromatograph. Hales stated that in testing the blood he followed the Crime Lab's established procedures.
These procedures were set out in a document entitled the Headspace Blood Alcohol Procedures (the
"Procedures"), which were developed and prepared by Howell. Hales also transferred the data regarding
the known standards from the computer-generated printout onto another document, called a sequence file,
and discarded the computer printout. After the testing was complete, Hales gave the results to Howell for
analysis.
¶7. On cross-examination the defense asked Hales to read the Crime Lab's Procedures. Steps one through
three read as follows:
Step 1. Sample 100 microliters of the standard, control, volatile mix, blank, or unknown blood sample
followed by one milliliter of internal standard using Abbott pipettor/dilutor or equivalent. Dispense into
a 20 ml autosampler vial. Cases are sampled in duplicate.
Step 2. Place rubber septum in crimp top and crimp tightly.
Step 3. Load samples into autosampler tray. Program sequence file to accommodate standards,
controls, blanks, volatile mix, and cases for current run and save.
In response to further questioning by the defense Hales testified that the "standards," referenced in step
three, were plural because they referred to different concentrations of known standards. Hales also stated
that when Brandon's blood was tested they did not use multiple standards of differing concentrations; the
only known standard used had a .15 percent concentration. However, multiple standards of differing
concentrations were used when the machine was calibrated several days before Brandon's blood was
tested. Hales also testified that he did not remember whether he was the Crime Lab employee who had
calibrated the machine prior to Brandon's blood being tested.
¶8. At the conclusion of Hales's testimony, the defense renewed its motion for a mistrial. The defense
asserted that they were further entitled to a mistrial because of the Crime Lab's failure to follow its own
procedures by not using multiple standards of different concentrations when Brandon's blood was tested
and because the prosecution failed to disclose the name of the person who had calibrated the machine prior
to the blood being tested. The defense also moved to have the test results excluded under the best evidence
rule because the computer-generated printouts had been destroyed. The trial court granted Brandon's
motion for a mistrial on the grounds that the prosecution's failure to identify the person who calibrated the
machine violated Brandon's right to confront all persons in the Crime Lab who had anything to do with
testing his blood.
¶9. After the declaration of a mistrial Brandon filed a motion for sanctions, which was heard on July 19,
1996. The motion claimed that State's discovery violations made the mistrial unavoidable, and as such the
State should be required to reimburse Brandon for expenses incurred in bringing the first trial. The defense
also moved that the blood tests be excluded from consideration during the retrial. The defense further
moved to have the case dismissed, arguing that a retrial would constitute double jeopardy. It was also
revealed during the hearing that, although the witness sequestration rule had been invoked, Hales had been
in the court room during Howell's testimony. The prosecution became aware of this fact prior to putting
Hales on the witness stand, but it failed to inform the trial court of the violation.
¶10. After the hearing the trial court denied the defense's motion to dismiss the case on double jeopardy
grounds. However, the trial court granted the defense's motions for sanctions and to exclude the blood tests
in the retrial. The trial court found that the crime lab failed to follow its policy for using multiple standards of
differing concentrations; neither Howell nor Hales knew who had calibrated the machine until after the State
had rested; and that the actions of the Crime Lab were intentional or so grossly negligent that they
amounted to intentional acts. The trial court further found that the discovery violations forced the declaration
of a mistrial in the first trial.
¶11. At a subsequent hearing, on September 24, 1996, on the State's motion to reconsider, Hales testified
once again. Hales noted that he had in fact calibrated the machine, a fact which he discovered after having
an opportunity to review the sequence log from the calibration. Hales also attempted to clarify his prior
testimony regarding the definition of "standards" (plural) as referenced in the Crime Lab's Procedures. Hales
stated that although the word "standards," in step three above, referred to different concentrations, it could
also mean the use of the same concentration multiple times. When asked by the defense why Hales did not
tell the court about this during the trial, Hales testified that he did not know that there was a
misunderstanding as to his definition of a standard. Hales also testified that he was following standard Crime
Lab procedures when he destroyed the printouts regarding the known standards, even though the written
Procedures did not state that the printouts on known standards were to be destroyed. Additionally, Howell
testified at the hearing that he had authored and prepared the Crime Lab's standard operating procedures
and that the procedures did not require the retention of the printouts generated for the known standards.
¶12. Brandon also pointed out that his copy of the sequence file printout, which was purported to be a true
and correct copy, had various material information redacted. Howell had "whited out" his initials and the
initials of Hales and information related to other blood samples. Howell stated that by so doing he was
deleting all information which he felt was irrelevant to this particular case.
¶13. On September 30, 1996, the trial court entered an order overruling the State's motion to reconsider.
In so ruling the trial court found that the testimony of the Crime Lab personnel was totally different from that
given at the first trial; documents produced were arbitrarily altered by Howell; the Crime Lab failed to
follow their procedures by using only one standard in analyzing Brandon's blood; and that it was ironic that
Brandon's blood alcohol content was purported to be .15 percent, the same as the concentration of the
known standard used in the analysis.
¶14. The retrial was held on October 7, 8, and 9, 1996. Brandon was found guilty at the conclusion of the
retrial and was later sentenced to twenty-five years, with five suspended, in the custody of the Mississippi
Department of Corrections. Afterwards, on October 28, 1996, the trial court entered a Supplemental
Order for Sanctions, finding that the actions of the Mississippi Crime Lab, by and through its employees,
were intentional and resulted in the alteration of documents which were crucial to the defense. The trial
court held that the Crime Lab's personnel committed affirmative acts of concealment and misrepresentation.
The trial court further held that the acts of the Crime Lab's personnel caused the defense unnecessary
expense in the amount of $28,268.65. The trial court then entered a Judgment for that amount against the
Harrison County District Attorney and the State of Mississippi.
¶15. On a motion for clarification, at which the Harrison County Board of Supervisors put in an
appearance, the trial court also found that the Harrison County District Attorney's Office was ultimately
responsible for the acts of the Mississippi State Crime Lab and that the burden to pay the sanctions fell on
the Harrison County Board of Supervisors. So finding the trial court imposed monetary sanctions in the
amount of $28,268.65, jointly and severally against the State of Mississippi, for the acts of the Crime Lab,
and against Harrison County, for the acts of the District Attorney's Office. Aggrieved the State of
Mississippi, the District Attorney's Office and the Crime Lab appeal the imposition of sanctions. That case
is consolidated with Brandon's appeal of his conviction on a double jeopardy claim. The Harrison County
Board of Supervisors also filed Amicus Curiae briefs.
II.
¶16. "The standard of review when a trial court institutes sanctions for discovery abuses is 'whether the trial
court abused its discretion in its decision.'" Kinard v. Morgan, 679 So. 2d 623, 625 (Miss. 1996) (quoting
Cooper v. State Farm Fire & Cas. Co., 568 So. 2d 687, 692 (Miss. 1990) (quoting Brown v. Arlen
Management Corp., 663 F.2d 575, 580 (5th Cir. 1981))). The lower court's imposition of sanctions will
be affirmed in the absence of a "'definite and firm conviction that the court below committed a clear error of
judgment in the conclusion it reached upon weighing of relevant factors.'" Id.A.
¶17. The Harrison County District Attorney's Office, the Mississippi Crime Laboratory, and Harrison
County (hereinafter collectively "the State") claim that the findings of the trial court are not supported by the
record. In its various orders the trial court found that the sanctions imposed were warranted due to the
prosecution's numerous discovery violations, the violation of the sequestration rule, and the Crime Lab's
failure to follow its standard procedures for analyzing blood-alcohol content. First, the trial court found that
the State violated discovery by failing to disclose that Hales, not Howell, had actually sampled Brandon's
blood and had run the blood sample through the Chromatograph machine. The trial court also found that the
State failed by not including Hales's name on the State's witness list. The trial court based it findings on
Kettle v. State, 641 So. 2d 746 (Miss. 1994). In Kettle this Court held that where a defendant raises a
Sixth Amendment right to confrontation objection in a case such as the one at bar, the defendant is entitled
to have the technician who conducted the laboratory test testify. Id. at 750. See also Gossett v. State, 660
So. 2d 1285, 1296 (Miss. 1995) (holding that it was"error to admit the autopsy report without producing
the author").
¶18. The prosecution argues that Hales was not included on the State's witness list because the State had
no intention or need to call Hales as a witness prior to trial, because generally the supervisor or the
individual who actually analyzed the blood tests was the one to testify in court. The State also argues that
Brandon knew of Hales and his likely role in the case long before trial and could have investigated who
placed the blood in the machine and turned it on. On March 21, 1996, the defense requested identification
of the Chromatograph operator with the initials AMH. On March 28, 1996, during a pre-trial motion
hearing, the State affirmatively represented that Hales (AMH) was not involved in testing Brandon's blood.
The State stated that "Archie Hales, had nothing to do with the test of this." Although the trial court ordered
the State to produce a Curriculum Vitae on Hales, it would be inane to require Brandon to pursue further
discovery regarding Hales's involvement in testing his blood in light of the State's affirmative representations.
¶19. Even assuming, arguendo, that the State did not act intentionally, it was at least negligent in failing to
determine whether Hales had actually sampled Brandon's blood. "When counsel's carelessness causes his
opponent to expend time and money needlessly, it is not an abuse of discretion for the court to require
offending counsel to pay for his mistake." Vicksburg Refining, Inc. v. Energy Resources Ltd., 512 So.
2d 901, 902 (Miss.1987). See also Ladner v. Ladner, 436 So. 2d 1366, 1370-71 (Miss. 1983) (it is
within the court's discretion to impose sanctions for discovery violations which result from willful neglect,
willful disobedience or cause undue advantage and surprise). See generally Maine v. Mylon, 462 A.2d
1184, 1186 (Maine 1983) (holding that trial court has wide discretion in imposing sanctions for discovery
violations in a criminal trial, even where the violation was not caused willfully); Maine v. Dionne, 505 A.2d
1321, 1324 (Maine 1986); Bankatlantic v. Blythe Eastman Paine Webber, Inc., 12 F.3d 1045, 1049
(11th Cir. 1994) (monetary sanctions may be imposed in a civil action for negligently violating discovery).
Therefore, the trial court did not err in finding that the State violated discovery by failing to disclose Hales's
involvement in testing Brandon's blood.
¶20. Second, the trial court found that the State violated discovery by failing to provide Brandon with the
names of all companies which had supplied the known standards to the crime lab. During the trial Howell
testified that in calibrating the Chromatograph machine the Crime Lab sampled each concentration of
known standard three times and that the samples for a given concentration was supplied by three different
companies. The defense moved for a mistrial based on the grounds that information regarding the suppliers
of known standards, which was requested prior to trial, had not been disclosed. The defense read a request
for production to the trial court, which sought information regarding any of the Crime Lab's calibration
procedures. The trial court asked Howell, without allowing him to explain, whether the request should have
resulted in the production of the names of the suppliers of known standards. Howell answered affirmatively.
¶21. The State argues that given a chance Howell would have explained that the request for production,
when read in context, revealed that the defense was requesting information pertaining to a breath analysis
machine, not information on the Chromatograph machine. The State is correct in claiming that the only
"machine" referenced in the defense's request for production was a breath analysis machine, not the
Chromatograph machine. In fact the defense only read a portion of the above request for production to the
trial court. In the last sentence of the request the defense specifies that it is seeking information regarding
Intoxilyzer machines.
¶22. However, in a supplemental motion to produce the defense requested the production of documents
relating to the calibration and repair history of any machines or instruments utilized in measuring Brandon's
blood-alcohol content. The supplemental request is sufficiently similar to the request read to the trial court
that it should have resulted in the production of all the names of the suppliers of known standards used in
calibrating the Chromatograph machine.
¶23. During the trial the State asserted that all of the names of the various suppliers of known standards was
contained in the Procedures, which had been produced to Brandon. However the trial court found that the
"Crime Laboratory personnel wholly failed to give meaningful discovery to the Defendant relevant to the
standards or solutions requested in discovery and buried the calibration information it did provide in
discovery provided in such a manner as to render the same virtually useless by the Defendant in this case..."
The Procedures state that in calibrating the machine "a calibration curve is generated from the results of
aqueous standards." The Procedures also list various "reagents, standards, and controls" and the suppliers
from which they can be obtained. However, the Procedures do not state which aqueous standards are to
be used in calibrating the machine or that known standards from three different suppliers are compared for
accuracy. Therefore, the trial court did not err in finding that the manner in which the names of suppliers
were disclosed was meaningless and resulted in a discovery violation.
¶24. Third, the trial court found that the State failed to disclose who had calibrated the Chromatograph until
after a mistrial had been declared in the first trial. The chemical analysis of a person's breath, blood, or urine
is only valid where it can be determined (1) that the proper procedures were followed; (2) the operator of
the machine was properly certified to perform the test; and (3) the accuracy of the machine was properly
certified. McIlwain v. State, 700 So. 2d 586, 590 (Miss. 1997) (citing Johnston v. State, 567 So. 2d
237, 238 (Miss. 1990)). The person calibrating the machine need not be called to testify and be subjected
to cross-examination unless the certification is not presented or there is an issue raised as to the authenticity
of the certification. Id. at 591. Here, no certificates were produced regarding either the qualifications of the
person who calibrated the machine or as to the calibration of the machine. In the absence of these
certifications Brandon was entitled to cross-examine the person who calibrated the machine prior to his
blood being analyzed. Therefore, the trial court was correct in finding that the failure to identify Hales as the
person who calibrated the machine resulted in a violation of discovery.
¶25. Fourth, the trial court found that further discovery violations occurred by the redaction of material
information from Crime Lab documents submitted to Brandon in response to requests for production. In the
discovery context the purpose for redacting a document is to remove that information which a party is not
entitled to discover such as confidential or privileged information. See Lyon v. Dunne, 580 N.Y.S.2d 803,
804 (App. Div. 1992). Howell testified that, according to his regular practice, he redacted the sequence file
prior to production in order to remove any confidential information or any information which he felt was
irrelevant to this particular case. The information redacted included Howell's and Hales's initials. The
sequence file was redacted in such a manner that the alterations were not readily apparent. Even if the
information regarding blood samples other than this defendants may have been undiscoverable, the State
does not claim a privilege protecting the initials of Howell and Hales from discovery. Howell claims that he
had no reason for deleting the initials from the sequence file because that information had previously been
produced. However, the Crime Lab's failure to produce the initials on the sequence file perpetuated the
misrepresentation that Hales was not involved in testing Brandon's blood.
¶26. The trial court also found that there was a violation of the sequestration rule and that the State failed to
inform the court of the violation prior to putting the witness on the stand. "The question of whether or not a
violation of a sequestration order occurred is a question of fact for the trial court and will not be overturned
on appeal where the determination is supported by sufficient credible evidence." Commonwealth v.
Stinnett, 514 A.2d 154, 162 (Pa. Super. Ct. 1986)(citing Commonwealth v. Smith, 346 A.2d 757 (Pa.
1975)). After Howell testified that his opinion relied on the results of tests performed by Hales, upon the
State's motion to reopen its case in chief, Hales was called to testify regarding testing Brandon's blood.
Subsequently, on July 19, 1996, during a motion hearing, it was brought to the trial court's attention that
Hales took the witness stand after having sat through Howell's testimony. Upon inquiry by the trial court, the
State admitted that, prior to calling Hales to the stand, they became aware that Hales had sat through
Howell's testimony.
¶27. The State argues, however, that any violation of the sequestration rule was non-prejudicial and was
cured by the defense's cross-examination of Hales. And, in any event, did not warrant either granting a
mistrial, excluding the blood-alcohol evidence in the second trial, or imposing monetary sanctions. This
Court has held that the possible remedies for violations of the sequestration rule include:
prohibiting the witness from testifying, striking his testimony, citing him for contempt, or allowing a
"full-bore" cross-examination. Gerrard v. State, 619 So.2d 212, 217 (Miss.1993). It is within the
trial judge's discretion to determine what remedy is appropriate. Baine v. State, 606 So.2d 1076,
1083 (Miss.1992).
Brown v. State, 682 So. 2d 340, 347 (Miss. 1996). Here the trial court found that the exclusion of Hale
as a witness left a void concerning the calibration of the machine and the chain of custody and created
constitutional confrontation problems, requiring the exclusion of the blood test results in toto. Therefore, the
trial court did not abuse its discretion in excluding the evidence from the retrial.
¶28. The trial court further found that the State Crime Lab failed to follow its Procedures, which required
the use of multiple known standards of differing concentrations in analyzing a blood sample. Miss. Code
Ann. § 63-11-19 (1996), authorizes the Crime Lab to approve the methods to be used for analyzing
blood-alcohol content. This Court has recognized that an agency's interpretation of its own standards and
regulations is controlling, unless such an interpretation is clearly erroneous. Tower Loan of Mississippi,
Inc. v. Mississippi State Tax Comm'n, 662 So. 2d 1077, 1080-81 (Miss. 1995) (citing Board of
Trustees of State Institutions of Higher Learning v. Sullivan, 763 F.Supp. 178, 184 (S.D.
Miss.1991)). See also, United Steelworkers v. Marshall 647 F.2d 1189, 1228 (D.C. Cir. 1981) (citing
United States v. Larionoff, 431 U.S. 864, 872, 97 S.Ct. 2150, 2155, 53 L. Ed.2d 48 (1977)); United
States v. Scholz, 19 M.J. 837, 842 (N-M.C.M.R. 1984). Here the trial court found that the Crime Lab
failed to follow the procedures as set out in its Procedures. This finding was based on the fact that the
Crime Lab used a standard of only one concentration level in testing Brandon's blood. During the first trial
the following exchange took place on cross-examination:
Q. [Defense] Okay. So on step three, we talk about standards plural, do we not, standards with an
S, and in step one, we talk about an internal standard, singular; is that correct?
A. [Hales] That's correct. Those are two different terms.
Q. So when you talk about standards, plural, you're talking about solutions that are of different
alcohol concentrations, right?
A. That's correct, of known concentration.
¶29. During a subsequent hearing on the State's motion to reconsider, Hales attempted to clarify his
previous testimony by stating that "standards" also referred to the use of the same standard multiple times,
as was done in this case. When asked by the defense why Hales did not tell the court about this during the
trial, Hales testified that he did not know that there was a misunderstanding as to his definition of a standard.
Additionally, Howell testified that he wrote the Crime Lab's Procedures and that by analyzing the results of
the tests, which showed only one concentration of standard as being used, he had determined that Hales
had performed the tests pursuant to the Crime Lab's Procedures. The defense presented no other expert
testimony regarding the interpretation of the Procedures, instead relying on Hales testimony during the trial
that "standards" - plural- referred to different concentrations of standards. Even if Hales's testimony was
contradictory, Howell's interpretation of the Procedures, that only one concentration of standard was
required when analyzing a blood sample, was entitled to deference. Tower Loan of Mississippi, Inc. v.
Mississippi State Tax Com'n, 662 So. 2d 1077, 1080-81 (Miss. 1995). There is no showing that
Howell's interpretation is clearly erroneous. Nevertheless, the apparent agency vacillation on this issue is
sufficient justification for the trial court consider this factor in the context of the overall circumstances when
determining whether to impose sanctions.
¶30. The trial court found that the acts of the crime lab were intentional, forced the defense to request a
mistrial and were chargeable to the State of Mississippi. Where material evidence within the knowledge of a
governmental officer has been withheld from the defense, that knowledge is imputed to the prosecutor,
regardless of the fact that the governmental officer with actual knowledge is from a different governmental
agency. United States v. Antone, 603 F.2d 566, 569 (5th Cir. 1979). See also Giglio v. United
States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 766 (1972). Such knowledge is also imputable to the
prosecution regardless of the good or bad faith of the prosecutor. Antone, 603 F.2d at 569. In this case
the District Attorney's office and the Mississippi Crime Laboratory are both state agencies. Howell, from
the Mississippi Crime Lab, redacted discoverable information from documents and failed to disclose the
names of suppliers of known standards.
¶31. Even though the trial court did not err in finding that the State had committed discovery violations
thereby causing the mistrial, the inquiry can not stop there, it must also be determined whether the trial court
had the authority to impose monetary sanctions against the State.
B.
¶32. The State raises the issue of whether the trial court abused its discretion by imposing sanctions. Where
the prosecution attempts to introduce evidence which has not been timely disclosed the defense should be
given a reasonable opportunity to review the evidence. URCCC 9.04(I) (1998). If, after review the
"defense claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the court shall, in the
interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a
period of time reasonably necessary for the defense to meet the non-disclosed evidence or grant a mistrial."
URCCC 9.04(I) (1998).
¶33. The sanctions of excluding the evidence or granting a continuance or a mistrial are not the only
sanctions within the trial court's discretion to impose. Nor, is the trial court limited in the imposition of
sanctions to only one form of sanction. Additionally or alternatively, discovery violations may subject an
attorney in a criminal trial to monetary sanctions either under the provisions of URCCC 1.03 ("[a]ny person
embraced within these rules who violates the provisions hereof may be subjected to sanctions, contempt
proceedings or other disciplinary actions imposed or initiated by the court."), URCCC 9.04 (willful
violations may result in sanctions), or under the trial court's inherent authority to control proceedings before
it. This Court, in Selleck v. S.F. Cockrell Trucking, Inc., 517 So. 2d 558, 560 (Miss. 1987), stated as
follows:
In Ladner v. Ladner, 436 So. 2d 1366, 1370 (Miss.1983), we held that even where there is no
specific statutory authority for imposing sanctions, courts have an inherent power to protect the
integrity of their processes, and may impose sanctions in order to do so. More recently, in Vicksburg
Refining, Inc. v. Energy Resources Ltd., 512 So. 2d 901 (Miss.1987), we held that "[w]hen
counsel's carelessness causes his opponent to expend time and money needlessly, it is not an abuse of
discretion for the court to require offending counsel to pay for his mistake, especially where ... out-of-
town travel was involved." Id. at 902. In the case at bar, we conclude that where a party's intentional
misconduct causes the opposing party to expend time and money needlessly, then attorney's fees and
expenses should be awarded to the wronged party. Although not all misconduct would warrant such
an award, Aeroglide Corporation v. Whitehead, 433 So. 2d 952 (Miss.1983)...
¶34. Harrison County argues that the expenditure of public funds is strictly a legislative function and that the
trial court's ruling that Harrison County is responsible for paying the monetary sanctions is a violation of the
separation of powers doctrine. This State's Legislature has expressed its intent to cloak this State and its
political subdivisions in sovereign immunity by providing that the State of Mississippi is not subject to
liability for the wrongs of its employees while acting within the scope of their duties. Miss. Code Ann. § 11-
46-3 (Supp. 1998). The Legislature has waived immunity for "claims for money damages arising out of the
torts of such governmental entities and the torts of their employees while acting within the course and scope
of their employment." Miss. Code Ann. § 11-46-5 (Supp. 1998). Even where immunity is waived, the
awarding of attorneys fees is prohibited unless specifically authorized by law. Miss. Code Ann. § 11-46-
15(2) (Supp. 1998). The Legislature has provided that costs and attorney's fees may be awarded against a
party for litigation abuses, in civil cases. Miss. Code Ann. § 11-55-5 (Supp. 1998). Miss. Code Ann. §
11-55-11 (Supp. 1998), further provides that § 11-55-5 applies "in all cases unless attorney's fees are
otherwise specifically provided by statute or court rule, in which case the provision allowing the greater
award shall prevail." However, § 11-55-11is not applicable in the context of a criminal case.
¶35. Nonetheless, this Court finds that the Legislative intent was not to immunize against lawfully imposed
sanctions in criminal cases. Rather by enacting § 11-46-3 the Legislature sought to prevent a party from
bringing the State into court and thereby subjecting the State to judicial authority without the State's
permission. In this case, however, the State came into the judicial arena willingly.
¶36. A number of federal courts have held that absent an express waiver of sovereign immunity, the
judiciary is without authority to assess monetary sanctions against the government. United States v.
Woodley, 9 F.3d 774, 781 (9th Cir. 1993); Graham v. United States, 981 F.2d 1135, 1141-42 (10th
Cir. 1992). Congress has enacted statutes which provide for the imposition of judicial monetary sanctions.
See M.A. Mortenson Co. v. United States, 996 F.2d 1177, 1179 (Fed. Cir. 1993) ("[Equal Access to
Justice Act] § 204(a), 28 U.S.C. § 2412(b) (1998), explicitly waives the government's sovereign immunity
in a civil case to an award of reasonable attorney fees..."); United States v. Ranger Electronic
Communications, Inc., 22 F. Supp. 2d 667, 674 (W.D. Mich. 1998) ("In adopting the Hyde
Amendment, Congress made criminal fee requests subject to the procedures and limitations utilized by civil
litigants under the Equal Access to Justice Act..."). The Ninth Circuit has also held that even where a
statutory waiver of immunity is inapplicable, sanctions may be imposed under the Federal Rules of Civil
Procedure. Where a Rule expressly provides that a court may impose monetary sanctions, Woodley, 9
F.3d at 781, in so far as that particular Rule is concerned, the government waives immunity by coming into
the court as a party, Mattingly v. United States, 939 F.2d 816, 818-19 (9th Cir. 1991) (cited with
approval in Woodley, 9 F.3d at 781). Conversely, the Ninth Circuit held that monetary sanctions were not
available under the Federal Criminal Rule of Procedure 16(d)(2), in which there is no express provision for
the imposition of monetary sanctions. Woodley, 9 F.3d at 781.
¶37. Although a Mississippi court's authority to impose sanctions under it Rules is not as restrictive as that
espoused in Mattingly and Woodley, in the case at bar, the trial court did not impose sanctions under any
of the Rules of Civil or Criminal Procedure, but rather found that it had the authority to impose the sanctions
on the basis of its inherent power to control matters which are prosecuted before it. The United States
Court of Appeals for the First Circuit has addressed the issue of whether federal courts may impose
monetary sanctions against the government through a court's inherent power to control matters before it.
United States v. Horn, 29 F.3d 754 (1st Cir. 1994). That court held that:
In this case, the doctrines of sovereign immunity and supervisory power, each formidable in its own
right, are in unavoidable tension. Despite the fact that, in recent years, the domain of sovereign
immunity has tended to contract and the domain of supervisory power has tended to expand, we
believe that sovereign immunity ordinarily will trump supervisory power in a head-to-head
confrontation. The critical determinant is that the doctrines are of fundamentally different character:
supervisory powers are discretionary and carefully circumscribed; sovereign immunity is mandatory
and absolute. Consequently, whereas the former may be invoked in the absence of an applicable
statute, the latter must be invoked in the absence of an applicable statute; and whereas the former
may be tempered by a court to impose certain remedial measures and to withhold others, the latter
must be applied mechanically, come what may. In other words, unlike the doctrine of supervisory
power, the doctrine of sovereign immunity proceeds by fiat: if Congress has not waived the
sovereign's immunity in a given context, the courts are obliged to honor that immunity. See, e.g.,
Federal Deposit Insurance Corp. v. Meyer, 510 U.S. 471, 473, 114 S.Ct. 996, 1000 (1994).
¶38. Conversely, this Court has held that the constitutional concept of separation of powers dictates that it
is within the inherent power of this Court to promulgate procedural rules to govern judicial matters. Newell
v. State, 308 So.2d 71, (Miss.1975). And "statutes which conflict with rules adopted by the Court are
void." Stevens v. Lake, 615 So. 2d 1177, 1183 (Miss. 1993). Additionally, Miss. R. Civ. P. 1 cmt,
provides that the rules apply equally to the State irrespective of any statute to the contrary. Likewise, a
court's inherent power to control actions before is equally applicable to the State. When the State enters the
court as a litigant, it places itself on the same basis as any other litigant; subjecting itself to the inherent
authority of the court to control actions before it, just as any other litigant. "The Court may invoke this
inherent authority through the adjudication of cases, the promulgation of rules, or the development of
internal management practices." Tighe v. Crosthwait, 665 So. 2d 1341, 1347 (Miss. 1995). Here the
State committed various discovery violations which resulted in the declaration of a mistrial. As a result, the
trial court exercised its inherent authority to control matters proceeding before it to impose monetary
sanctions on the State.
¶39. Harrison County also claims that there is no authority under Mississippi law for monetary sanctions to
be imposed against a county. However, the Mississippi Constitution, art. 14, § 261 (1890), provides that
"[t]he expenses of criminal prosecutions shall be borne by the county in which such prosecution shall be
begun. . . ."
¶40. Harrison County argues that the judiciary is prohibited from imposing sanctions against the State, or a
political subdivision thereof by the holding in Board of Sup'rs of George County v. Bailey, 236 So. 2d
420, 422 (Miss. 1970). Bailey held that "[i]t requires legislative implementation for the determination of
what constitutes proper expenses, the amounts thereof or a method of making such determination, and to
whom same should be paid."(1) However, Bailey is distinguishable from the case at bar. The trial court in
Bailey ordered the State to pay the costs of providing legal counsel to an indigent criminal defendant.
Whereas here the trial court is imposing sanctions against the prosecution for the violation of judicial
procedures. As discussed supra, when the State, or one of its political subdivisions, enters the judicial arena
as a party, the Rules apply equally to the State irrespective of any statute to the contrary. The cost of doing
business, whether it be public or private, includes any fines or penalties which result from negligence or from
the wilful violation of procedures. See Miss. Code Ann. § 27-7-7 (1991). This assignment of error is
without merit.
C.
¶41. Harrison County also claims that it was denied due process in violation of Article 3, Section 14 of the
Mississippi Constitution and the Fourteenth Amendment to the United States Constitution. For authority
Harrison County cites to now Chief Justice Prather's, specially concurring opinion in Mease v. State, 583
So. 2d 1283 (Miss. 1991). In Mease this Court dealt with the issue of whether a trial court could entertain
a court appointed attorney's motion for attorney's fees in excess of the statutory maximum. Relying on the
holdings in Wilson v. State, 574 So. 2d 1338 (Miss. 1990) and Pruett v. State, 574 So. 2d 1342 (Miss.
1990), this Court reversed for a hearing as to the reasonable expenses incurred by the attorney. In a
specially concurring opinion, in which five other Justices joined, Chief Justice Prather stated that:
it would be prudent to have the Board of Supervisors, as the payor of claims against the county,
receive notice from the Circuit Court before this type of hearing is held and have the option of
allowing their attorney [to] participate in the hearing, if they so elect. . . .
583 So. 2d at 1285.
¶42. In the case at bar, Harrison County Board of Supervisors were not noticed on either the hearing on the
Motion for Sanctions or on the hearing on the Supplemental Motion for Sanctions. However, the County's
Board of Supervisors were notified of the hearing on the District Attorney's Motion to Clarify and were
represented by counsel at the hearing. The County made no motions in relation to being allowed to cross-
examine the witnesses from the previous hearings. Nor did the County complain to the trial court regarding
the notice that it received. Also the County's attorney was given an opportunity to argue the County's
position at the hearing. Due process is satisfied where there is notice and an opportunity to be heard.
Mississippi Power Co. v. Goudy, 459 So. 2d 257, 271 (Miss. 1984). Harrison County was given notice
and an opportunity to be heard. Therefore, this assignment of error is without merit.
D.
¶43. On appeal Brandon raises the issue of whether the trial court erred in failing to dismiss the case on
double jeopardy grounds. When a defendant moves for a mistrial he or she will be barred from later
claiming a double jeopardy violation, unless it can be shown that the error at issue was committed by the
prosecution with the intent of forcing the defendant to move for a mistrial. Nicholson on Behalf of
Gollott v. State, 672 So. 2d 744, 750 (Miss. 1996). In this case, although the trial court found that the
errors which necessitated the mistrial were committed by the prosecution, the trial court did not find that the
prosecution committed those errors with the intent to force Brandon to move for a mistrial. This Court has
held that "[i]n order to prevail on this kind of error, it is incumbent upon an appellant to show that the
prosecution by its argument 'intended to 'goad' the defendant into moving for a mistrial,' or 'intended to
provoke the defendant into moving for a mistrial.'" Wheat v. State, 599 So. 2d 963, 956 (Miss. 1992)
(quoting Oregon v. Kennedy, 456 U.S. 667, 673, 102 S.Ct. 2083, 2088, 72 L.Ed.2d 416 (1982)). In
this case Brandon failed to offer any evidence that the prosecutor had the intent to force the defense to
move for a mistrial. A prosecutorial error necessitating the declaration of a mistrial does not necessarily
amount to an intent to force the defendant to move for a mistrial. Wheat, 599 So. 2d at 956. This
assignment of error is without merit.
III.
¶44. For the above and foregoing reasons the trial court's judgments are affirmed.
¶45. CONVICTION OF FELONY DRIVING UNDER THE INFLUENCE OF INTOXICATING
LIQUOR CAUSING DEATH AND SENTENCE OF 25 YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH 5 YEARS SUSPENDED
AFFIRMED. BRANDON C. BLENDEN SHALL PAY RESTITUTION TO ANN AND JACK
LEE IN THE AMOUNT OF $520 UNDER THE TERMS AND CONDITIONS SET OUT IN
THE JUDGMENT OF THE TRIAL COURT. UPON RELEASE BRANDON C. BLENDEN IS
TO BE PLACED UPON SUPERVISED PROBATION FOR 5 YEARS UNDER THE TERMS
AND CONDITIONS SET OUT IN THE JUDGMENT OF THE TRIAL COURT.
PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., SMITH, MILLS, WALLER AND COBB,
JJ., CONCUR. McRAE, J., NOT PARTICIPATING.
1. Board of Sup'rs of George County v. Bailey, 236 So. 2d 420 (Miss. 1970), was decided in an era
of pre-Newell deference to the legislature in matters integral to the judicial process. Newell v. State, 308
So. 2d 71, 76-77 (Miss. 1975). Beginning with Newell and continuing through the adoption of Mississippi
Rules of Civil Procedure and the Mississippi Rules of Evidence, this court has asserted its prerogative as a
co-equal branch of government with plenary power over matters assigned to it for adjudication. Id. It is
compelled to take such steps as are necessary to accord due process in accordance with the Constitution
of the State of Mississippi and the Constitution of the United States. See, e.g., Jackson v. State, 1998
WL 469953 (Miss. 1998) (ordering the provision of counsel for post-conviction relief proceedings for
death penalty defendants); Hall v. State, 539 So.2d 1338, 1339-40, 1344-46 (Miss. 1989) ( rejecting
legislative evidentiary rules); Mitchell v. State, 539 So.2d 1366, 1372 (Miss. 1989) (admissibility of child
hearsay statements determined under M.R.E.); City of Mound Bayou v. Roy Collins Const. Co., Inc.,
457 So. 2d 337, 342-43 (Miss. 1984) (affirming that the notice requirements for appeal are prescribed by
the Rules of Court and not legislatively); Jackson v. State, 337 So.2d 1242, 1253 (Miss. 1976)
(prescribing procedure for the application for the death penalty after legislatively prescribed procedure was
declared unconstitutional).