*1 against appellant.” aff’d, prejudice App.1968); State, Deats v. 80 N.M. question required reversal, this one even opinion, P.2d 981 (1969). In our though the trial court had admonished the prosecutor three items of misconduct jury improper not consider question. equal, exceed, if not the error in Deats v. case, In this attorney displаyed district Rodriguez, supra. jury; questioned butcher knife to the his We do any not'determine whether one of own concerning they a knife items, the three alone, might considered defendants; and, could not connect to the reversible error. We do hold that the cu- after any to establish basis ad- impact mulative of the three items was knife, mission of the offered it as evi- prejudicial that deprived were defendants previously dence. have We characterized aof fair trial. this as part bad faith on the of the judgment and sentences are re-
attorney.
prejudice
from this bad
versed. The cause is remanded with in-
conduсt,
faith
in
opinion,
our
exceeds
structions to grant each defendant a new
prejudice in
Rowell, supra.
trial.
supra,
State v. Cummings,
awas
It is so ordered.
manslaughter
arising
out of a traffic
HENDLEY, J., concurs.
closing argument,
prosecutor
death. In
repeated
improper
LOPEZ,
an
J.,
specially.
comment three times.
сoncurs
This comment was directed to the number
LOPEZ, Judge (specially concurring).
high
traffic deaths on New Mexico
I concur
in the
my
result.
I base
ways.
repeated misconduct,
together
decision
Cummings,
on State v.
57 N.M.
instruction,
an
with
erroneous
was held to
36,
weapon. The district referred to
a crime a United States Seilator.
He utilized the status of his in in office
forming jury the defendants were
guilty or he brought have them Mexico, Plaintiff-Appellee, STATE of New items, opinion, to trial. These three in our prejudice exceed improper com repeated
ment three times in State v. Cum Grady BILLINGTON, Lee Defendant- Appellant. mings, supra. No. 1285. Rodriguez, Deats 477 F.2d (10th Cir. 1973), attorney, the district Appeals Court New Mexico. argument, closing had referred de- 6, 1974. Feb. fendant’s failure to make a statement to police officer. Defense had counsel objected, objec- but had also withdrawn his opinion
tion. The indicates that the dis- attorney’s
trict comment on an accused’s plain,
silence was fundamental error. conviction,
state previously upheld by Court, was reversed. See
Montoya, 80 N.M. 451 P.2d (Ct.
\f¿á Repl. appeals. Vol. Defendant reverse. We
(1) The trial court abused its discretion a continuance. denying dеfendant a November defendant filed On of names motion disclosure of witness- pursu- es the State intended to call trial Wood, opinion. 27 J., dissenting ant to Rule of the Rules of Criminal (b) C. filed 41-23-27(b),
Procedure N.M.S.A. [§ (2d Repl. Supp.)]. Vol. On Janu- ary voluntarily furnished did include an list of witnesses which important witness whose critical, not technical or cumulative. 21, 1973, at a before March
On court, attorney stat- defendant’s ed:
I no ass'ume other witnesses since Janu-
ary list 3rd have been added circumstances, and under satis- I’m fied. correct, Honor. That’s Your State: Well, they if been
The Court: haven’t added, they’re going get added you they it and advise don’t do it, ahead. you are that far about * ** proceed right. All [W]e case to trial then tomorrow on this ** * 22, 1973, day, on The next March presence jury panel, the out impor moved to the name of an add the State had disclosed tant witness which by telephone the to defendant’s objected. day The defendant before. de objection, trial court allowed Over question fendant’s Thereafter, minutes. witness for few “for a moved the trial court time as needed continuance until such Sanders, Snipes Templeman, & E. James * of the witness obtain appellant. Lovington, for Templeman, motion The trial was overruled. Norvell, Gen., Atty. Bill L. David defend»*, discretion, its abused Fe, Primm, Gen., ap- Atty. Asst. Santa matter was entitled to a continuance as a pellee. of law. 41-23-30, (2d Rule 30 N.M.S.A. [§ OPINION as fol- Repl. Supp.)] reads Vol. lows : SUTIN, Judge. re- If, subsequent compliance with perjury was convicted of
Defendant
Rules
40A-25-1,
discovery
or order for
quest
under
violation
§
(a) (iii),
See
41-23-28],
or
facts in issue.
1.1
1.2.
§§
[41-23-27
trial,
during
suggested
discovers
It has been
prior to or
one
or witnesses which
advance notice of
additional material
statements
re
duty
produce
under a
and their
would have been
previous
quired by
time of
the sixth amendment and
or disclose at the
such
process.
compliance
were then
due
Palermo v.
if it
known
give
no-
*3
party,
promptly
343,
he shall
written
360
362-66
S.Ct.
3 L.
U.S.
[79
party
party’s
or the
at-
see
(1959);
tice to the other
Ed.2d
v. Unit
1287]
Jencks
of the additional
ed
657
1
torney of the existence
353 U.S.
S.Ct.
[77
Note,
at
20
any
(1957);
material or
time
L.Ed.2d
Okla.L.
witnesses.
1103]
If
(1967).
it is
422
during
proceedings
the course
Rev.
of
brought to
the court that
the attention
See,
Jones,
of
State
209 Kan.
498
v.
a party
comply
has
to
with this
(1972).
failed
P.2d 65
pursuant
rule or with an order issued
to
is
The defendant
entitled
fair
to a
rule,
party
this
may
order such
purposes
deposition
trial.
of the
of a
One
inspection
to permit
discovery
or
of
permit
is to
the defendant to seek avenues
disclosed,
previously
not
materials
impeachment
of
of
witness on
continuance,
prohibit
or
during
cross-examination
trial.
Rule
disclоsed,
calling a
or
witness
intro-
(n) (5), supra.
29
ducing in evidence the material not dis-
The State’s witness had testified at a
closed,
or it
enter such other order
prior trial in which the defendant was a
appropriate
as it deems
under the cir-
witness. The defendant had no reason to
[Emphasis
cumstances.
added].
prepare cross-examination of this State’s
This rule is the same as Rule 16(g) of
witness because his name
was
dis-
the Federal
of
Rules
Criminal Procedure.
closed. Even if defendant was familiar
16(g).
Rule
U.S.C.A.
testimony,
with this witness’ trial
defend-
29, supra,
Rule
allows the defendant to
ant
right
deposition
had the
to take the
deposition
person.
takе the
This
witness to determine whether his
right
discovery by deposition
true,
credibility,
to test his
have aided the defense.
impeachment,
produce
to seek
to
other evi-
dence,
discovery,
to
orderly
American Bar
seek
all for the
Association’s Advi
sory
procedures prior
Committee
Pretrial
administration of сriminal
Proceedings’
on
30, supra,
Relating Discovery
Standards
trial. Rule
violated.
Pro
Trial,
2.1(a)
cedure
provides
Before
(i)
§
If,
taken,
after the
is
the de-
that
prosecuting attorney
shall disclose
fendant
proven
believes that he will be
to defense
“the names
counsel
and address
guilty,
plea
enter into
bargaining
persons
es of
the prosecuting
whom
attor
plead
guilty to
necessity
avoid the
ney intends
as
to call
witnesses at
expense
jury
of a
trial.
States v.
”
**
* *
hearing or trial
United States
Isa,
(7th
F.2d
Cir.
Leichtfuss,
F.Supp. 723,
(N.D
attorneys
District
should not have
.
.Ill.1971)
“inadvertently”
overlook dis
Commentary, p.
says:
closing important witnesses until the day
trial,
morning
trial,
before
subsection not
facilitates
or during
plea
trial.
agreements
discussions and
but also
goes to
general
the heart of the
proposi-
Maes,
State v.
N.M81
tion that
permit-
defense counsel must be
quoted the
(Ct.App.1970)
following with
ted
prepare adequately
to cross-exam-
approval:
ine thе witnesses
the accused and
otherwise
credibility,
test their
as well as
appear
it is
When
made to
that testimo-
produce
other evidence relevant to the
ny of the
is
such that it cannot
produce
a written list of witnesses
anticipated, postponement
reasonably
the district
intends to call
is availa- which
hearing
or continuance
ap-
provides
the trial. Rule
27(d)
meet it and
ble to the defendant
attorney’s
response.
denied, prejudice
written
plication therefor
provides
27(e)
if the district
follow.
shown,
being
reversal
respond.
fails
a continuance
entitled to
Defendant was
Sibold,
See, State v.
а matter of law.
Defendant, by formal motion filed subse-
(Ct.App.1972);
83 N.M
information,
quent
sought
an order
Kasouris,
F.2d 689
United States
requiring the
to furnish a list wit-
State
State, 258
(5th
1973);
So.
Cir.
Sheridan
nesses the
to call at the
intended
State
(Fla.App.1971).
2d 43
trial. The
contends there is no
its discretion.
The trial court abused
showing
this motion
on
was “served”
Hargrove,
N.M.
464 P.2d
and, thus,
the defendant was not
Isa,
United States v.
564 (Ct.App.1970);
entitled to a list of the State’s witnesses.
*4
the
supra.
prejudicial
error
to
The
was
there is no
con-
State contends
issue
rights
defendant as to
substantial
cerning late disclosure because it was not
United States v.
necessitate a reversal.
required
The con-
to disclosе
witness.
Kasouris, supra.
adversary sys
“In our
tention
without merit.
.The record
tem,
judge. The
enough
judges
it is
shows that defendant’s disclosure motion
may
be useful to the
determination what
“disposed
had been
ofthat
the
had
State
properly
effectively
and
be
defense can
the
furnished a list of witnesses. Because
only by an
madе
advocate.” Dennis v.
State,
response by the
record shows a
the
86 S.Ct.
U.S.
“no service” claim does not avoid the issue
1840, 1851,
(1966).
which follow from Immediately prior to trial on March This and the Rules involves Rules 27 of30 41-23-27 objected endorse- of Criminal Sections defendant Procedure. Repl.Vol. 41-23-30, (2d as a witness claimed ment O’Neal permitted tо tes- Supp.1973). that not be O’Neal should tify. The overruled these con- trial court 27(b), Under Rule a defendant request on the district tentions. “serve” lidity procedure is not issue be- of this an
Defendant contends State violated proceeded Representations to make such a 30. cause the State Rule 27 or Rule eithеr so, doing stated it showing. indicate State to the trial court made State Defendant, delay to a trial to objection had no Rule 27. have violated however, to talk to the rely did not on Rule allow defense counsel 27 before be same as Although majority because “his the trial court. contention, I in the trial.” оpinion does not this discuss majority approach agree with the in decid- approved The trial court the endorse- ing appeal on the basis Rule 30. ment of as a Defendant O’Neal witness. objection allowing continued his O’Neal There are two violations of 30. testify. Once the made its decision to cаll as a witness it violated the O’Neal rule point Through proceedings in the give prompt defendant notice of only made the defense was claim notice, its given, decision. The when was required justify requires oral. rule written notice. as use of O’Neal a witness. After the ruling, trial his court’s defendant continued What follows from thеse violations? objection. interpreted can The rule authorizes the trial court to continuance, justification claim that the prohibit No such claim is in the calling the insufficient. made undisclosed witness or to enter appeal. other such order as the appro- court deems
priate under the circumstances. This ruling, After the court’s *5 wording leaves sanctions for violation of moved a for continuance until such time Rule 30 to the discretion of the trial court. deposition is needed a to obtain of O’Neal. appellate The is the trial issue whether majority The that denial hold of a continu- court abused its mаjority discretion. ance was an abuse discretion. opinion uses this standard. doing, majority the refer to Rule 29 Rules of 41-
An
Criminal Procedure.
abuse of
Section
is
discretion
an erroneous
23-29,
(2d Repl.Vol.
conclusion
judgment,
and
one that is clear-
Supp.1973).
majority
ly against
“This
state:
logic
and effect of the facts
discovery by deposition
circumstances before the court. State
have aided the defense.”
Hargrove,
v.
81 N.M