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Click here for the full text of this decision FACTS:The appellee was indicted for capital murder on Nov. 1, 2001. After the discovery order was issued, defense counsel made repeated requests of the state for the DNA evidence. These requests were made either in person or by telephone until late 2002, at which time the parties began written communication. During pretrial proceedings on March 5, 2003, defense counsel informed the trial court of his intent to file a motion to suppress the state’s DNA evidence due to the untimely disclosure of the evidence. The trial court took up the issue immediately and heard argument and testimony from the prosecutor and defense counsel regarding the discovery process. The court then entered findings that the state’s disclosure of the evidence was untimely and that the state acted willfully in its failure to comply with the discovery order. Specifically, the court found that “the State’s conduct in failing and refusing to provide the Court-ordered discovery in a fair and timely fashion exceeds negligent conduct, and was in fact a willful and egregious effort by the State to defeat defendant’s constitutional rights.” The court then concluded that because the state acted willfully, the DNA evidence should be excluded. The court of appeals reversed, noting that “[e]vidence willfully withheld from disclosure under a discovery order should be excluded from trial,” and defining a willful act as one that is “done voluntarily and intentionally, with the specific intent to disobey the law.” The court found that “the record does not support a finding of intentional disobedience [by the State] of the trial court’s discovery order” and “does not reflect a willful violation of [that] order.” Therefore, the court concluded, the trial court erred in excluding the evidence. HOLDING:Affirmed. The court agrees with both the trial court and the court of appeals on the issue of the timeliness of the state’s disclosure of evidence after the discovery order was granted. The state should have produced the evidence in more timely fashion, especially considering the repeated requests made by defense counsel. Therefore, the court is concerned only with the court of appeals’ review of the trial court’s choice of sanctions for the state’s noncompliance. The trial court’s order excluding the evidence was based on its ultimate finding that the state acted willfully in violating the discovery order. The court disagrees. The facts pertaining to the state’s conduct do not demonstrate a willful violation. The record demonstrates that the state made what the prosecutor himself described as “grievous error[s] and mistake[s],” but there is no evidence that the prosecutor in this case acted with the specific purpose of disobeying the court’s discovery order, preventing the defense from preparing its case, or denying the defendant his constitutional rights to a speedy trial or effective assistance of counsel. The trial court erred by finding that the state acted willfully in its noncompliance with the discovery order and by excluding the DNA evidence. The court of appeals’ holding on this issue is correct. The court of appeals also concluded that “[u]nder the circumstances in this case, the appropriate solution to the discovery dispute was a continuance of the trial.” Because the trial court’s ultimate findings characterized the state’s conduct as willful, and as neither party presents argument regarding what remedies are available when the state’s conduct is of a less culpable nature, the court expresses no opinion as to what alternative sanction the trial court should have imposed. OPINION:Womack, J.; Keller, P.J., and Meyers, Keasler, Hervey, Holcomb and Cochran, JJ., join. CONCURRENCE:Cochran, J.; Meyers, and Holcomb, JJ., join. “I join the Court’s opinion. I wish to emphasize that, from my reading of the record, the trial court’s ruling excluding the DNA test results was made solely for the purpose of sanctioning the prosecutor. There was no evidence submitted that, because of the prosecution’s tardiness or sloppiness, the defense could not have its independent expert retest the material or prepare adequately to testify. Apparently, the trial court’s ruling was intended to punish the prosecutor, not to protect the defendant. Had the defendant shown that he was unable to prepare a defense to this scientific evidence in the time remaining before trial, I would be less concerned about the “willfulness” of the prosecutor and more concerned about the due process rights of the defendant. But as it is, the citizens of Jefferson County should not be deprived of otherwise relevant, reliable evidence in a capital murder trial because of the prosecutor’s negligence.” DISSENT:Johnson, J.; Price, J., joins. “[W]e should defer to the trial court in matters involving findings of fact and should not disturb its finding that suppressing the DNA evidence would not eviscerate the state’s case. I would reverse the judgment of the court of appeals and affirm the actions of the trial court.”

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