State v. Daniel Montgomery, 408 P.3d 38

On Sept. 18, 2014, Daniel Montgomery fired five rounds at a Jeep that had struck a trash can and bumped him; a neighbor’s security video captured the incident.
Montgomery was charged with two counts of aggravated assault and one count of unlawful discharge of a firearm into an occupied vehicle; jury acquitted on aggravated assault and convicted on the firearm charge.
Before trial Montgomery requested under I.C.R. 16(b)(6) a list of all state witnesses; the State produced 25 names but did not list a booking deputy or the investigating officer.
At trial Montgomery testified he acted in self-defense and that all five bullets were recovered; the State called the booking deputy (to impeach Montgomery’s claimed injuries) and the investigating officer (to rebut the number of slugs recovered).
Montgomery objected that those witnesses were undisclosed rebuttal witnesses in violation of I.C.R. 16(b)(6); the district court admitted their testimony and Montgomery appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether I.C.R. 16(b)(6) requires disclosure of rebuttal witnesses	Montgomery: rule’s plain language (“all persons”) requires disclosure of rebuttal witnesses	State: prior precedent allows undisclosed rebuttal witnesses; practical concerns	Court: I.C.R.16(b)(6) does require disclosure of rebuttal witnesses; prior contrary authority to that extent overruled
Whether admission of the investigating officer’s testimony was reversible error	Montgomery: officer’s name should have been disclosed; admission violated Rule 16 and was error	State: testimony harmless given video and other evidence	Court: admitting officer’s testimony was an abuse of discretion but harmless beyond a reasonable doubt; conviction stands
Whether admission of the booking deputy’s testimony was reversible error	Montgomery: deputy was undisclosed and used to impeach him in violation of Rule 16	State: deputy’s testimony became relevant only after Montgomery’s testimony; disclosure not required in those circumstances	Court: district court did not err in allowing deputy to testify under these circumstances
Whether prosecutor committed misconduct in closing by saying witnesses (including Montgomery) lied	Montgomery: prosecutor’s statements deprived him of a fair trial	State: arguments were based on video and evidence, not personal belief	Court: statements were within permissible argument (based on record) and did not constitute prosecutorial misconduct

State v. Olsen, 103 Idaho 278, 647 P.2d 734 (1982) (earlier decision addressing disclosure of rebuttal witnesses under prior statutory scheme)
State v. Jones, 125 Idaho 477, 873 P.2d 122 (1994) (recognized practice of allowing undisclosed rebuttal witnesses in certain circumstances)
State v. Lopez, 107 Idaho 726, 692 P.2d 370 (1984) (prior precedent referenced regarding rebuttal-witness disclosures)
State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010) (harmless-error and plain-error standards for unobjected-to trial errors)
State v. Dunlap, 155 Idaho 345, 313 P.3d 1 (2013) (permissible prosecutorial credibility arguments must be grounded in evidence)