¶1. Our trial judges have considerable discretion over discovery matters. This discretion extends to the handling of requests for continuances or mistrials based on alleged discovery violations. In this case, an expert witness testified that injuries to a child were consistent with sexual abuse. Her reports, photographs of the injured body area, and expert opinion were previously disclosed to the defense. Yet, at trial, the defense took issue with the expert's testimony about the relevance of the shape of some of the injuries. After thoughtfully assessing the defendant's request to exclude the expert's testimony, the trial judge denied it. Though she found no discovery violation, the judge recessed trial for the day so defense counsel could further interview the expert. She also restricted the expert's testimony to external injuries but allowed the expert to give an opinion that the child's injuries resulted from sexual assault.
¶2. On appeal, we find no abuse of discretion in the judge's handling of this issue, nor do we find she abused her discretion in denying a mistrial. Another alleged error involving the giving of a
¶3. We affirm.
Background Facts and Procedural History
¶4. In 2012, Jesse Frank Mouton lived with his brother Jody and Jody's girlfriend Katelyn, at the Country Living Trailer Park in Woolmarket, Mississippi. Katelyn often babysat Toni Carpenter's children—three-year-old N.B. and two-year-old A.B. On June 17, 2012, Toni noticed that N.B. "act[ed] with discomfort" when she strapped him in his car seat.
¶5. Ocean Springs Hospital performed a sexual-assault examination on the child.
¶6. On April 13, 2015, a Harrison County grand jury indicted Mouton on four counts of sexually assaulting N.B. Counts one and two charged Mouton with sexual battery.
¶7. Mouton was tried in May 2015. The State presented evidence and testimony from Toni, Auge, and a Biloxi police investigator, among other witnesses. Auge testified as an expert witness. She described one of the tears to N.B.'s anus as "V-shaped." In her opinion, the child's anal tears were consistent with sexual assault.
¶8. Mouton objected, claiming the State failed to disclose Auge's opinion on the significance of the "V-shaped" tear.
¶9. The judge did, however, grant a brief continuance and recessed court for the day to give Mouton an additional opportunity to question Auge about her expected testimony. When trial resumed the next day, the judge permitted Auge to testify. But the judge limited her testimony to only the external injuries she had observed while examining N.B.
¶10. The State also called Toni as a witness. Inconsistencies arose concerning her initial statement to police and trial testimony. She originally told police Mouton's ex-wife, Shannon McGrew, had informed her of other sexual-assault allegations involving Mouton and one of his children. But at trial, Toni claimed no knowledge of prior allegations against Mouton. She testified she made these statements to the police while she was "distraught and very flustered." Mouton called Shannon in response. She testified that the Mississippi Department of Human Services had cleared Mouton in the prior sexual-assault investigation. During cross-examination, the State asked Shannon if Mouton had visitation with their children and whether that visitation was supervised. Shannon answered affirmatively to both questions. Shannon was the defense's sole trial witness.
¶11. After nearly four hours of deliberation, the jury sent a note to the judge. The note explained the jurors were unable to reach a unanimous decision and needed guidance. After hearing from both sides, the judge decided to read a
¶12. Mouton filed a post-trial motion, seeking a new trial or judgment notwithstanding the verdict. In it, he claimed three specific errors—(1) the State violated discovery rules by failing to disclose Auge's expert opinion on the shape of N.B.'s injuries; (2) the trial court gave an improper
I. Discovery Violation
¶13. From the beginning of trial, Mouton made a host of inconsistent discovery-violation claims. But he only advances one on appeal—that the State introduced undisclosed expert testimony about the significance of the shape of N.B.'s anal tears.
¶14. Mouton does not claim that Auge was not qualified to give an opinion that N.B.'s injuries were consistent with sexual abuse. Nor does he claim the State failed to provide discovery and photographs depicting the child's anal tears. Rather, what Mouton coins a discovery violation is that Auge did not write the words "V-shaped tear" in the disclosed materials. So, as he sees it, Auge could not testify that one of the depicted tears to the child's anus was V-shaped, and that N.B.'s injuries were consistent with sexual abuse. For this reason, Mouton insists, the judge erred by finding no discovery violation, improperly allowing Auge to continue testifying, and not granting his motion for a mistrial.
A. Standard of Review
¶15. The decision to admit or exclude evidence is left to the trial court's discretion.
¶16. Under Rule 9.04(I), if the State attempts to introduce previously undisclosed evidence, the defense may object and be afforded an opportunity to examine the evidence or interview the witness. URCCC 9.04(I). If, after examination or interview, the defense claims unfair surprise or prejudice, the judge may either exclude the evidence or grant a continuance or mistrial. Id.
¶17. Mouton's counsel admitted he had received Auge's ten-page forensic report—a report that specifically diagrams and pinpoints the three distinct tears to N.B.'s anus. Defense counsel also acknowledged he had received photographs of the tears. And he admitted receiving a letter from the State, disclosing that Auge would testify that the child's injuries were consistent with sexual assault. Defense counsel also acknowledged he "interviewed [Auge] on at least one occasion" before trial.
¶18. The record shows the trial judge carefully considered Mouton's argument, finding no merit to the bulk of it. While she found no discovery violation, the judge still employed a "modified
¶19. After review, we find no abuse of discretion in the judge's handling of the claimed discovery violation. From the State's discovery—which Mouton admitted receiving—it was clear Auge would testify that the anal tears depicted in the photographs and forensic reports were consistent with sexual assault. And the judge was thoughtful in her evidentiary analysis, crafting an approach that granted Mouton's request for additional time to question Auge, and ultimately limiting the expert's testimony to only external injuries.
¶20. Mouton next argues the trial judge's
¶21. We have approved using a
¶22. Here, the judge's
III. Prosecutorial Misconduct
¶23. Mouton's final argument cites several moments at trial he now claims show prosecutorial misconduct. He points to his own witness's statements during the State's cross-examination, Toni's differing testimony from an earlier police statement, and the State's use of Auge's expert testimony. Mouton suggests these examples, both individually and together, warrant a new trial. We disagree.
¶24. This Court has been clear—"preservation of an issue for appeal requires a contemporaneous objection at trial."
¶25. Mouton called Shannon, his ex-wife, to testify as a defense witness. During cross-examination, the State asked if Mouton had visitation rights with their three children and if his visitation was supervised. Shannon answered affirmatively to both questions. Mouton now suggests the State improperly implied his supervised visitation requirement related to the prior abuse allegations, when it knew the condition was required under Mouton's court bond.
¶26. Shifting to Toni's testimony, Mouton argues the State improperly "condon[ed] the change" in her testimony "without warning to the defense." He insists the State knew Toni's trial testimony—that she was unaware of prior abuse allegations—conflicted with her initial police statement. But the judge allowed the defense to exhaustively impeach her with her prior statement, which was admitted into evidence. And while Mouton claims he was barred from introducing rebuttal testimony, the witnesses he previously chose to disclose to the State were designated to testify only about Mouton's character. The trial judge noted this and denied his request. Afterward, Mouton opted not to offer either character witness.
¶27. Again, Mouton's counsel made no objection based on prosecutorial misconduct, and we see no obvious prejudicial error on the State's part.
¶28. Since this Court has already addressed Mouton's claims about Auge's testimony, further discussion is unnecessary. To the extent Mouton claims cumulative error, we are not persuaded. "The cumulative error doctrine stems from the doctrine of harmless error, codified under Mississippi Rule of Civil Procedure 61."
¶29. We find no abuse of discretion in the trial court's decisions involving the State's expert testimony. Nor do we find the trial court's
KITCHENS, Justice, Dissenting.
¶31. I fully join the excellent analysis in Justice King's dissent and agree that Jesse Frank Mouton is entitled to a new trial because the trial court permitted the State's expert to provide opinion testimony which had not been disclosed to defense counsel as required by Rule 9.04 of the Uniform Rules of Circuit and County Court Practice.
¶32. I write only to observe that this Court has held, in civil cases, that "nurses cannot testify as to medical causation."
¶33. Conversely, this Court attempted to craft a distinction in order to permit sexual assault nurse examiners (SANEs) to testify that sexual assault injuries are consistent with trauma: "Thomas, a sexual-assault nurse examiner, did not testify as to what caused [the victim's] injuries; her testimony was only that those injuries were consistent with blunt, penetrating trauma."
¶34. I concurred in part and dissented in part in
¶35. In the present case, Nurse Auge opined, as an expert, that the shape and location of the victim's injuries indicated that those injuries were caused, not by a hard stool exiting the anus, but rather by something entering the anus: "[t]he tears are indicative of something large penetrating the anal sphincter."
¶36. I maintain that qualified nurses—irrespective of whether they are qualified in civil or criminal cases—should be allowed to testify to causation. If this Court forbids a qualified nurse to testify to causation in a civil case in which mere money is at stake, why should a sexual assault nurse examiner be permitted to testify to causation in a criminal case in which the defendant's liberty is at stake and in which the State is obligated to prove each element of the crime beyond a reasonable doubt? The only apparent explanations for such arbitrary, contradictory rules are, first, the interest of civil defendants in preventing potentially harmful causation testimony from an otherwise-qualified nurse and, second, the expediency to the State of utilizing the testimony of a qualified sexual assault nurse examiner in obtaining a conviction. Such interest-driven distinction is not legitimate and renders the notion that the Mississippi Rules of Evidence are applied the same in civil and criminal trial a mere myth.
KING, Justice, Dissenting.
¶37. Because I believe that the State essentially conducted a trial by ambush by failing to disclose Auge's testimony about the shape and location of the tears, I respectfully dissent with the majority's finding on that issue.
¶38. Pursuant to Uniform Rule of Circuit and County Court Practice 9.04, "[t]he prosecution must disclose to each defendant or to defendant's attorney . . . any reports, statements, or opinions of experts, written, recorded or otherwise preserved, made in connection with the particular case and the substance of any oral statement made by any such expert . . . ." URCCC 9.04(A)(4).
¶39. First, the prosecution provided to the defense a statement that Auge's testimony would include that the injuries sustained were consistent with the history presented. That statement was vague and gave no indication that Auge would testify as to the V-shape of one of the tears or of its implications. Auge's ten-page medical report also did not contain any references concerning the shape of the anal tears or references to internal injuries or the implications thereof. Had the defense been informed of Auge's opinions prior to trial, it would have had the opportunity to prepare an effective cross-examination and to present its own evidence in rebuttal.
¶40. The prosecution's failure to disclose Auge's testimony and its allowing Auge to testify repeatedly on the undisclosed opinions caused a miscarriage of justice. Auge testified extensively about the shape and position of the tears:
¶41. Auge was the only expert witness called at trial and her testimony arguably was the most convincing evidence that the prosecution produced. Thus, her opinion that one of the tears was in a V-shape and that this particular shape indicated that there had been an outside force going into the anus, was extremely prejudicial to the defense. Out of the four counts with which Mouton had been charged, the jury convicted only on Count I — Sexual Battery: sexual penetration by inserting his finger into the anus of N.B. Auge's testimony that the V-shaped tear indicated that something was going into the anus instead of a large stool going out of the anus directly was correlated with Count I. This, coupled with the jury's initial deadlock in convicting Mouton, indicates that Auge's testimony on the V-shaped tear and the posterior/anterior location of the tear was extremely prejudicial to the defense and important to the jury. As this Court has emphasized, "[j]ustice is better served when the accused knows `reasonably well in advance of trial what the prosecution will try to prove and how it will attempt to make its proof. . . .'"
¶42. The clear language of Rule 9.04 states that any expert opinions must be disclosed. Mere disclosure of the location of anal tears does not fulfill the rule's requirement to disclose any expert opinions. In a trial in which the defendant is accused of sexual battery, a blanket disclosure that Auge would testify that the injuries were consistent with sexual abuse does not suffice. That in no way put Mouton on notice of Auge's opinions about the shape of the anal tears or of her opinion that the particular shape indicated the tear was caused by an outside force. Mouton had prepared a defense that the tears had been caused by constipation. Had Auge's opinion that the specific "V-shape" of the tear indicated it was caused by an outside force been disclosed, Mouton would have had an opportunity to amend his defense.
¶43. N.B.'s mother potentially had known of similar accusations against Mouton that, after an investigation, were found to be without evidence and were dropped. In her own statement to the police, she asserted that, "[a]fter I picked up my son [N.B.] and daughter [A.B.], [N.B.] start [sic] to complain about his butt. I asked him has anyone messed with him in his areas. . . ." N.B. was three years old at that time and Auge admitted that a child that young could hear someone ask questions about a situation and the child would think that it had happened to him even though it did not. At the time of trial, N.B. could not remember most of what, if anything, had happened that night. Thus, the opinion that N.B.'s anal tears could have been caused by constipation were it not for the V-shape became vitally important.
¶44. Moreover, Mouton's attorney stated that he had interviewed Auge at great length and that he had asked her to "tell [him] everything that she found and why and the possibilities associated therewith." Auge did not disclose her opinions about the shape of any of the tears, that the tears were anterior as opposed to posterior, or of her opinions on what she believed the shape and location of the tears indicated. Therefore, despite Mouton's attorney having inquired, Auge either withheld or changed her opinions as to the shape, location, and meaning of the tears. In either scenario, Mouton lacked notice of Auge's opinions at trial. Hence, I believe a new trial giving Mouton an opportunity to prepare an effective defense is the appropriate remedy for the discovery violation.
¶45. I submit that the prosecution's failure to disclose Auge's opinions violated Rule 9.04, unfairly surprised the defense, and constituted a miscarriage of justice. Accordingly, I dissent and would reverse the judgment and remand for a new trial.