*1 MONTANA, OF STATE v. CARL Plaintiff and Respondent, GAFFORD, Defendant Appellant. No. 13475. 19, 1977.
Submitted Jan.
3,May
Decided
1977.
Asst. Atty. Poison, and respondent. for plaintiff Atty., the Court. MR. HASWELL delivered opinion JUSTICE intercourse two of sexual counts was with Defendant charged trial Following jury injury. causing bodily without consent of both court, was convicted defendant County, Lake district de- sentencing entered judgment L. Green Judge counts. Jack on each prison the state terms in year to consecutive fendant of conviction. from judgment Defendant appeals count. at that on evidence trial disclosed the evening June Horseshoe, went victim to Diamond Poison area bar. She was sister her Charlotte. Another sis- accompanied by ter, Debbie, later the two at the joined Diamond Horseshoe. girls bar, While at victim noticed defendant Carl Gifford mo- tion to her from across the dance floor. Defendant was married victim’s sister Debbie. left victim the table where she and her two sisters were seated and joined defendant. The two conversed a few min- victim, utes and thereafter left the bar. to the According defend- ant asked her for a ride go and talk over problems he was with her sister. having Defendant denied this. In event de- fendant hid his near a rural dirt motorcycle road outside Poison and joined the victim in her car. then drove to a They bar near Dayton, Montana and had two beers each. When they left bar in defendant Dayton, purchased bottle wine with the victim selecting brand. drove around the
They drinking the wine and countryside to the car stereo. Sometime around listening as midnight they Poison, returning defendant who was the car driving in order to stopped relieve himself. There- alongside highway after as attempted defendant drive the car back on the high- became way, car stuck. The victim became alarmed that her car had been and an followed. At this damaged argument the evidence is as to whether the point conflicting defendant struck, choked, or sat on the She she slapped victim. testified was forced to into a field where accompany nearby she to sexual intercourse without her subjected consent. She testified defendant her around and struck her on the slapped nose with fist she whereby suffered injury. Defendant bodily sexual testified no intercourse took on this place occasion. *4 stuck Thereafter defendant and the victim returned to the automobile. A motorist and with the aid stopped passing to- rope freed the car. and the victim then continued Defendant ward and hidden Poison where defendant had stopped previously
his Both victim and defendant testified that motorcycle. sexual intercourse then occurred. Defendant testified the inter- consent, course was with while the victim testified it was with- out her and that she bodily consent suffered injury. and
The victim returned home was examined following Dr, Coriell, the The examination' re- day by physician. family vealed several and on various her bruises abrasions face parts and in Tests showed the her body. presence sperm vaginal tract. The Lake was notified. attorney County 30, 1975, the filed a county attorney
On complaint June court defendant with two counts of sexual inter- justice charging day, course without was arrested same consent. Defendant him, defender was to bail was represent the public appointed and was on bail. defend- Subsequently fixed defendant released ant waived was bound over to district hearing preliminary court. 30, 1975, filed an information in July county attorney
On with two counts of sexual district court defendant charging without consent which the victim suffered during intercourse defender, with the Defendant injury. appeared public bodily count, “not to each waived was arraigned pleaded guilty” trial, bail to a released on previously right speedy posted. 4, 1976, set the date of March the district court February
On new counsel for defend- February On jury trial. that same date defender. On public ant was substituted for require a written motion counsel filed defendant’s new of wit- state, with list things other provide among trial, at require the state to be called by intended nesses documents, which the or things papers, “all produce state trial”, at and all pictures evidence to introduce into state intends with events or locale connected or of item “any of the victim court grant- based.” The district these charges which upon these ed all motions.
385 17, defendant’s counsel filed a written notice to February On to names of the victim and secure “the take the deposition or material relevant of who have information addresses persons charge.” of the facts surrounding present to a determination and the victim was granted The motion of the state depose “that to the extent assured court county attorney State, that of who do known to the they names witnesses become be to” will turned over defense counsel. taken on 23. February
The of victim was She deposition stated had been taken of her nose. She further testified X-rays at of the examining these were taken X-rays request physi- cian, trial, Dr. At week both Coriell. least one prior and defendant’s county attorney attorney possession of written Dr. Coriell that made no mention or report by X-rays fractures. At the time victim of the auth- possible deposition orized Dr. Coriell release medical information tests including to defense counsel. trial on 3. began March On the weekend of Wednesday, 6-7,
March the county defense counsel and attorney telephoned disclosed the of existence victim taken the fol- X-rays day crime lowing which disclosed frac- alleged nondisplaced ture the nose. reconvened,
On Monday, March when trial the county attorney moved to enter the of Dr. name David Dahlgren, radiologist who examined the as a witness X-rays, state. Defense counsel objected requested that in the event the motion was granted continuance of one week to have the X- evaluated an rays independent medical A continu- expert. ance one day granted was court. by the was Testimony concluded on March and the case was sub- mitted to the jury. returned jury verdict of on both guilty counts. Judgment entered. Defendant from the appeals judgment.
Defendant raises three specifications error: (1) Denial of defendant’s motion for mistrial during jury answers and prejudicial non-responsive
selection based upon jurors. two prospective of defendant
(2) impeachment in permitting Reversible error of a felony. on a conviction based name of (3) to add the the state error in permitting Reversible in the for the state witness as an additional the radiologist of the trial. middle error, the to the first specification our attention
Directing *6 the voir dire examina- of that at the beginning discloses record whole asked the panel trial judge jurors, tion prospective Finley juror Prospective of the parties. them knew any if he was in at one time stated defendant and he knew indicated was at if this jailing asked Defense counsel with defendant. jail now before on the charges defendant time of the arrest of — a it was on was not thought that he answered court. Finley dire examination voir during Additionally, charge. DWI whether counsel, was asked Ducharme juror defense prospective him to would cause school in high with defendant his association he answered Ducharme the defendant. be against prejudiced before, that would but was in trouble defendant knew him. prejudice answers, two error on we find no reversible
As to Finley’s made at the (1) was not motion for mistrial Defendant’s grounds: (2) answers, answers were following first recess counsel. of defense further questions invited answer, it so we do not consider Ducharme’s Concerning Defense counsel reversible error. as to constitute nonresponsive answer and to a or “no” “yes” his question could have limited knowledge disclosing answer failed to do so. Ducharme’s him, although perhaps it would not indicating prejudice asked, was within question than the broader technically intri in the unversed layman response by bounds of normal We find no re and correct legal procedure. cacies of language defendant’s motion denial of in the district court’s versible error for a mistrial. concerns
The second of error the state’s right specification of a conviction of a the defendant evidence impeach Defendant this is since felony. argues adoption impermissible 94-4723, the 1972 Montana Constitution and of section repeal R.C.M.1947, after the new Constitution became effective. shortly Code, Our attention is directed to the new Evidence effective 1, 1977, that eliminates this method of July impeachment to the Commission Comments in connection particularly therewith.
Here, the district court denied motion defense counsel out- side the presence to bar the jury from prosecution to the attention fact bringing jury’s had pre- state, been viously convicted of a Thereafter felony. during case-in-chief, cross-examination of defendant in his asked this question: Gafford,
“Q. Carl have ever been you convicted felony? A. When I was I pleaded guilty receiving stolen property.” final
During argument, county attorney discussing lies, where the truth made these remarks: *“* * You are to *7 case measure this from the mouth of the witnesses who sat here. Is this the truth? You are girl telling her there. You are him judging there there sitting also judging and you may consider fact that judging his credibility that fact he is a convicted felon.”
Prior to the 1972 Montana Constitution it
long
had
been the
law in Montana
a
that witness
be
could
impeached by evidence
of
94-4723, R.C.M.1947;
a
of a
prior conviction
Section
felony.
93-1901-11, R.C.M.1947;
31,
Section
State v.
125 Mont.
Coloff,
343;
Romero,
333,
P.2d
231
v.
State
Mont.
161
“Rights the convicted. Laws for crime punishment of be of shall founded on and reforma- principles prevention
388 are termination state by supervision tion. restored Full rights of added.) state.” (Emphasis any against offense 95-2227, R.C.M. Section repealed. 94-4723 has been Section 1947, in pertinent part: has been enacted provides * * * conviction. “Effect of
“(3)
of
his civil or
has been
When
person
deprived
for an offense
constitutional
reason
conviction
rights by
shall
he
been
he
be
pardoned
has
or
has
expired
sentence
as
the same
if
citizenship,
restored to all civil
and full
rights
had
occurred.”
such conviction
93-1901-11, R.C.M.1947, was not
Section
repealed
law of
It
the methods
im-
remains the
Montana.
provides
and includes:
peachment
“* * *
witness,
be
of the
or
it
shown
examination
may
by
that he has
of a felony.”
the record of
been convicted
judgment,
R.C.M.1947,
93-2101-2,
Section
also permits impeachment
of a
conviction
felony.
evidence
93-1901-11
Defendant contends section
was superseded
95-2227. We do not so construe it.
enactment
section
section 94-4723 and
legislature
repealed
made
specifically
93-1901-11
93-2101-2.
no mention of section
or
im
Repeals
Winter,
207,
129
are not
State v.
Mont.
285
favored.
plication
120,
149;
ex
v.
112 Mont.
113 P.2d
Ayers,
P.2d
State
rel. Dunn
785;
Schnell,
579,
An statute repeal implied v. clear intent to that effect. State Lagerquist, legislative 910; 21, al. v. Liquor Mont. 445 P.2d Teamsters et Mont. Con- 541; Board, Fletcher v. trol 155 Mont. P.2d Paige, is Here there none. supra. and 93- that sections 93-1901-11
Defendant also argues 2101-2, no are of the civil code and have ap- R.C.M. part
389
to criminal
The rules
plication
proceedings.
of evidence appli-
to
cable
civil
have
been
proceedings
long
held applicable to
95-3001, R.C.M.1947,
criminal
Section
proceedings.
(formerly
94-7209);
O’Neill,
526,
215;
section
v.
76
State
Mont.
248 P.
31,
343;
v.
Romero,
State
125 Mont.
231 P.2d
Coloff,
State v.
333,
Mont.
161
Defendant advances the that im position permitting evidence of a conviction a peachment by is un prior felony constitutional under the 1972 Montana Constitution. He con II, 28, that Art. Section tends that full are providing rights re by stored termination state offense supervision any against state, this method In prohibits impeachment. our view this Constitutional be a given cannot such broad and provision In sweeping construction. construing constitu interpreting tional an provisions, achieves interpretation reasonable Construction, Ed., is result favored. 2A Sutherland Statutory 4th 45.12, 49-134, 37 and cases cited p. therein. Section R.C.M. § 453, 1947. State ex rel. Ronish v. Dist. No. 136 Mont. School 797; Smith, P.2d 1002. 348 P.2d v. Mont. 553 Keller II, To construe in the sense contended Art. Section 28 or hearing from defendant would a sentencing judge prohibit felon in criminal record convicted considering prior to determining sentence be would an imposed; prohibit bank, such as a employer supermarket, or retail large business from as a handling money refusing teller employment or cashier to a convicted embezzler or reason prior thief thereof; and it would a state institution prohibit housing ju from refusing veniles convicted child molester employment reason such conviction. abound illustrat Examples the unreasonableness of such construction. We refuse to ing give absolute, this constitutional such broad and provision sweeping construction.
In our view the constitutional provision refers those rights considered and civil commonly incident to political rights vote, such as the citizenship to hold of right right public fice, the as a our right juror serve courts and the panoply *9 It the laws of the land. all citizens under
of rights possessed by characteristics, record, or to an individual’s has no reference a conviction. conduct demonstrated by prior felony previous his constitutional right Defendant further states in himself in a criminal proceeding person defend appear can be impeached counsel is if trespassed credibility II, 24, 1972 Montana conviction. Art. Section felony by prior no in this contention. The testi Constitution. We find merit witness, accused, sub an as in the case of other is mony any of as a impeachment to attack by impeachment. Prohibiting ject tantamount violation of an accused’s defend himself is right to don in its search for the truth. blinders requiring jury also impeach Defendant contends permitting ment denies a convicted prior conviction of by prior felony II, felon the of the law in violation of Art. Sec equal protection 4, out a singles tion 1972 Montana Constitution. He this argues felons, class i. e. convicted for of special persons, prior special is Classifica constitutionally impermissible. treatment which tions are unconstitutional. for different treatment not se per 150, 649; State v. 169 Mont. 545 P.2d v. Lindsley Craig, Co., 61, 337, 55 Natural Carbonic Gas 220 U.S. 31 S.Ct. L.Ed. 369; v. 40 S.Ct. Guano Co. 253 U.S. Royster Virginia, It is if the classification unreasonable that L.Ed. 989. is only of legislative constitution is violated. wisdom Regardless or merit out convicted felons treat singling special ment, the classification cannot be said to contravene legislative the standard of reasonableness. based on argument we defendant’s reject
Finally, said of bemay Whatever new code of evidence. proposed of a prior evidence abolishing impeachment and cons of pros not in effect code was evidence new felony, conviction no has appli and consequently trial this case at time of cation. whether permitting error is
Defendant’s third specification additional state’s witness as an radiologist the addition of error. and reversible mid-trial was prejudicial 95-1803, R.C.M.1947, section provides: The statute controlling In all criminal cases “Discovery, origi- notice. inspection, triable in district court the rules shall nally following apply: “(a) List of Witnesses:
“(1) For the of notice and to only purpose prevent ^surprise, shall furnish to the defendant and file with the prosecution of the clerk court at time of a list of witnes- arraignment, ses intended to be called prosecution prosecution. time after add the list the names of may, any arraignment, witnesses, additional cause. The upon showing good shall names list include the and addresses of the witnesses.
“(2) section, (a)(1), of subsection requirement this shall to rebuttal witnesses. apply *10 “(b) bemay used as a as Subpoenas discovery provided device 95-1801(d). for under section
“(c) On motion of any party within reasonable time before all trial shall at a parties produce reasonable and time place designated the court all or papers things which documents/ each intends to party introduce in evidence. Thereupon any shall, court, in the party the presence person designated by documents, be to or permitted such inspect copy any or papers time, things. order shall the and manner of specify place and making inspection taking copies or photographs may and such terms and conditions as prescribe are If the just. evidence relates to scientific tests experiments or the opposing shall, if be to party practicable, be permitted present during tests to the results thereof. a sufficient show- inspect Upon the court at time ing any order or may discovery inspec- denied, deferred, tion be or restricted or make other appropriate If, orders. to subsequent with an issued compliance order pur- rule, trial, suant this to or during discovers party additional material which previously requested subject is to dis- or under the shall covery rule he inspection notify promptly or party other his or the court of the attorney existence additional material. The court shall exclude evidence not any rule, for or to this unless
presented copying inspection pursuant is for cause shown failure In the latter Casethe good comply. shall be entitled to recess or a continuation opposing party which it or the evidence in the manner during may inspect copy for above. provided
“(d) For of notice and to purpose only prevent surprise, defendant shall furnish to the and file with the clerk prosecution of the court at the time of entering of not or plea guilty (10) within ten days thereafter or at such later time as the court may good cause a statement of intention permit, to interpose the defense of self-defense or alibi. If the in- insanity, defenses, tends to of these he shall also interpose any furnish to court, and file with the clerk of prosecution the names and addresses of all witnesses to be called defense sup- trial, thereof. port The defendant motion may, prior upon cause, add to the list of witnesses showing good commences, names of additional witnesses. After the trial no witnesses be called the defendant in may of these support defenses, list, unless the name is on included such except upon cause shown. good
“(e) trial, All matters which are are upon privi- privileged disclosure leged against through any discovery procedure.” This statute allows the addition of witnesses after trial has commenced on a cause. Commission showing good 95-1803, R.C.M.1947; Klein, Comments section State v. Mont. 547 P.2d 77. “Good cause” has been defined as — “substantial reason” one that affords a excuse. State v. legal *11 Rozzell, 877; Klein, 157 Mont. 486 P.2d State v. In supra. Klein the Court stated:
“The eourt should first determine whether the need for the their not disclosed additional witnesses the reason for being then determine wheth- earlier is a ‘substantial reason’. It should and whether this surprise er-there is based on prejudice surprise a continuance. If the sur- can be overcome by granting continuance, the wit- element can be overcome then by prise ness be should endorsed and the continuance granted. spirit and intent of the law is that names and addresses of potential witnesses should be disclosed as soon as are known.” they
As trial progresses, showing to establish necessary “good cause” should be more stringent. Commission Comments 95-1803, R.C.M.1947, section supra. circumstances this case furnish the of the background
district court’s ruling. Defendant’s counsel took the deposition of the victim before trial. At that eight days time the following information was elicited defense counsel:
“Q. You indicated that an had been taken? X-ray A. Yes.
“Q. Where and whom? A. at St. Up Joseph’s Hospital.
“Q. Who requested the A. Dr. X-ray? Coriell said that I should have it to make sure that it X-rayed wasn’t broken.” November,
Sometime the previous defender and public defendant, then counsel for had received a written medical re- from Dr. Coriell port his examination of the concerning victim. About a week to trial the received this county attorney medical Defense report. counsel had discussed with Dr. Coriell his examination of the victim. No mention of the X-rays ques- tion was made in the written or discussion Dr. reports Coriell.
Trial commenced on Wednesday, March 3. selection con- Jury sumed the entire first On day. March jury selection continued and thereafter general instructions were given jury by court, statement, the state made its opening defendant reserved statement, his opening and the victim was sworn and testified. On March Friday, the victim resumed her testimony, photo- introduced, and a graphic exhibits wine bottle were the under- testified, sheriff examined the jury involved in premises incidents the basis of forming charges, Dr. Coriell testi- fied. weekend,”
Over the called defense counsel county attorney and informed him the state intended to present X-rays *12 would, that request and the endorsement radio- purpose, as an additional witness for the state. logist When on March the state moved court reconvened Monday, the to add the name of Dr. David who Dahlgren, radiologist the as additional witness for state and read an X-rays, repre- the court the reason for “the motion was the in- sented to or not were X-rays of Dr. Coriell to recall whether such ability to the court him. The requested by county attorney represented that Dr. had advised either the victim or her Coriell family these of of Dr. findings X-rays by Dahlgren the victim the state. The entirely county unknown either to or he was Dr. Coriell’s attorney represented surprised by testimony. these grounds: The was resisted defense counsel on motion (1) of to have X-ray The the witness and the had been presence trial, (2) state known state the onset of the did from or with the name of the witness not furnish defense counsel this, in to the motion X-ray requiring existence of the response (3) of or the Dr. had not indicated the presence X-ray Coriell counsel, (4) it his conversation with defense findings in of as a the whole the trial and came sur- changed complexion in to defendant the trial. prise middle to take the X- counsel moved for week’s continuance Defense in Missoula for examination. radiologist an ray independent record, discussion went in unreported some Although remarks that defense from trial judge’s reported appears this Dr. in Missoula for pur- counsel had contacted Fritz already No further re- court one continuance. granted day pose. was made defense for additional time or continuance quest counsel, time of to the reduced con- nor was made any objection as a witness for defendant Dr. Fritz never called tinuance. was at the trial. he the X- indicated examined Dahlgren Dr. testimony the nose of fracture of indicated nondisplaced
rays they the victim. disclosure the X- that the late
On defendant argues appeal and what was rays they showed without a permitted showing cause” and “good prejudiced himself defending after his of the case had been theory and the case prepared in mid-trial. He argues the state by reasonable *13 could diligence have discovered this in evidence of trial rather than advance waiting until the middle of the trial and “ambushing” with a and devastating of key its evidence. piece view,
In showing by our made state indicated it The state knew about find surprise. represented nothing of the and did were that Dr. Coriell not ings surprised X-rays as what testify X-rays to the and showed. Defendant’s they counsel the state to stated failed exercise reasonable diligence to trial this information. This two- prior uncovering is sword. Both the county defense counsel edged attorney about knew to trial. X-rays neither the Apparently nor the state defense knew what disclosed. this in they Lacking formation, their relevance and unknown and significance either the state or the defense. While state unappreciated by it could have followed relied on Dr. to Coriell cover through, point. this The defense could also have uncovered this informa by tion authorization for examination of requesting the X-rays, which knew were at they St. We cannot Joseph’s Hospital. say that the did state not constitute cause” showing “good the endorsement as a witness permitting radiologist state under the here. circumstances
We that there is an emphasize indicate intentional nothing or deliberate state. withholding evidence Such are not here, the facts and case under such facts are not rulings germane to this appeal.
Defendant to the one rather objects continuance day than week’s continuance At the time the one requested. day continuance was granted, defense counsel had contacted already Fritz, Dr. X- independent read the radiologist sought When trial was resumed defendant no indication that rays. gave he needed more time. He an continu- request did additional
anee. He with the trial without further simply proceeded objec- circumstances, tion. Under these he will not be to say heard on that the appeal one continuance was insufficient. day We note defendant has Board the Sentence Review applied for a review of his This has sentence. review been deferred of this outcome pending equity uniformity appeal. his sentence will be reviewed determined thoroughly body this We following appeal. jurisdiction reserve review the sentence thereafter. is affirmed. of conviction judgment DALY and HATFIELD and
MR. CHIEF JUSTICE JUSTICES HARRISON concur. dissenting:
MR. SHEA JUSTICE and order new I would reverse the conviction judgment not be While each the claimed errors would trial. perhaps error, when taken sufficient in itself to constitute reversible *14 a fair the was denied trial. together I believe defendant dire the conduct the Because of the voir examination past defendant, front of the already to the was in charges, unrelated (One he knew the the started. stated testimony juror before jury he could still be fair the defendant had in trouble but been when he had in with defendant jail other stated been juror with under in- driving had been charged defendant fluence.) a invited to degree is that comments were It true these counsel, this did not free the trial from judge but still defense further of the trial could not that the future course assuring the trial atmosphere. poison trial, court should have in this fair the trial assuring a step
As limine to from prevent jury motion in defense granted clear that conviction. It is felony past defendant’s knowing conviction, some 7 obtained one of stolen receiving property was 19 years when the defendant trial before the years present that was on issue of rape no value had probative age, to ask the prosecution sole reason for allowing tried. The being a was convicted of based felony if he had ever been 93-1901-11, R.C.M.1947, a statute which enacted the on section a less rule that one convicted of is felony old common law belief, should know about accordingly jury worthy conviction. felony previous law; a This statute is not rule of substantive it is a rule of evi- dence. It does not declare that a conviction must previous felony evidence; be allowed in states that it be allowed simply “may” in evidence. Whether to allow the conviction in evi- previous court, is a of discretion dence matter trial to be deter- case, mined to the circumstances of each according keeping mind that it is ultimate of the trial court to assure each duty defendant a fair trial. cannot This be watered dovvn duty statute, blindfolded aof for the to assure a fair application duty trial transcends the mechanical of rules of application evidence. case, error the circumstances of this it was prejudicial
Given con- to allow the to consider the defendant’s previous felony jury two events occurring viction. This error was compounded by after the admission of this evidence. offered instructions the prosecutor settlement
During jury to consider evidence of an instruction on how the jury conviction, law on other but it also contained previous felony in the Defense counsel ob- covered instructions. already points the trial court refused the instruction. on that jected ground instruction on the subject. did not offer another prosecutor an instruction on the point, While defense counsel did not offer bad nevertheless the cumulative evidence defendant’s relating trial on his own motion should conduct was such judge instruction. have given jury cautionary Furthermore, to comment it was for the prosecutor improper in his final closing arguments on the conviction felony previous *15 argu- in his own subject opening where he did not cover the in his own not cover the subject ments and defense counsel did convic- the felony Had the discussed final arguments. prosecutor have counsel could defense tion his during opening arguments made an informed decision as to how to handle the matter. But at this of the defense counsel could stage arguments only object an would have served to this improper argument, only and concentrate the attention on his client’s heighten jury’s pre- vious conviction. felony remarks to which prosecutor’s defense counsel could were:
respond, “You are to measure this case from the mouth of the witnesses who sat here. Is this the truth? girl You are her telling judging there. You are him there also and con- judging sitting you may sider the fact in the fact that judging he is con- credibility victed felon. * * *”
“Now, truth. measure the This combination of circumstances concerning defendant’s conduct, case, unrelated past wholly to the him of a deprived fair trial.
It also was to allow the improper X-rays evidence under the where, circumstances as exist in this case. This is not a case exercised, after due diligence the prosecutor came with up additional evidence he did not know existed. It is a case where the state had Here, been rewarded for a total lack of diligence. the prosecutor knew the existed X-rays but never bothered to determine if had they any evidentiary value until the middle of the trial. should have known the existed when he prosecutor X-rays
or his talked to the agents witness to determine if complaining event, there was cause for a criminal In probable complaint. any he most knew the existed when the defense certainly X-rays witness and she testified deposed complaining X-rays taken of her nose at St. But the first time the Joseph’s Hospital. bothered to determine if the prosecutor had evidenti- X-rays value was after ary both the witness and her mother complaining taken, testified at the trial had been even X-rays though doctor, Coriell, Dr. testified he not recall whether treating could *16 he had ordered It was after this that an X-rays. only testimony was to what effort made see the contained. X-rays with I the that the state was disagree sur- majority legitimately Coriell to at trial because Dr. the as to prised expected testify the and the results. the had X-rays Since state never discussed the (in fact, with him before trial his medical did not X-rays report even mention it is to conclude the X-rays), state illogical expected Dr. Coriell to cover at the trial. subject X-rays Further- more, I think the state’s failure with concern- comply discovery would have ing X-rays the state from precluded using Dr. Coriell or anyone testify else concerning X-rays results. “documents,
Before trial the defense moved to discover all that the papers things” prosecution intended introduce at trial, ordered, court so with no from the objection state. At no time listed as a X-rays exhibit and at no potential time before trial was the defense ever notice state given in- tended to introduce X-rays in evidence. One very purposes discovery statutes is to and here prevent surprise, the de- fense was totally justified in state believing going introduce any X-rays evidence. the trial Accordingly, court was in error when it allowed the endorsement the radiologist on the Information to get X-rays and results in evidence.
For the reasons foregoing I would reverse the of con- judgment viction.