*1 Arizona, Appellee, The STATE of KILLEAN, Appellant.
David J.
No. CR-95-0455-PR.
May 7, 1996. Woods, Attorney
Grant General McMurdie, Paul J. Chief Counsel Criminal Anderson, Appeals Section Jon G. Assis- General, Phoenix, Appellee. Attorney tant Trebesch, Maricopa Dean Pub- W. Phoenix, Kemper, lic Defender James H. Appellant. OPINION LIVERMORE, Judge.* charged possession Defendant marijuana transportation of mar- for sale ijuana for sale after he was arrested airport containing Phoenix with a suitcase twenty-three marijuana. pounds of His de- fense, trial in revealed for first time at statement, opening defense counsel’s belonged a friend suitcase named Ed Newark Kenefick who traveled from to Tucson with defendant and who asked return suitcase Kenefiek’s That Kenefick’s wife. defense was fact presented through defendant’s appeal trial. is at issue in this What trial court whether the abused its precluding admission of corroborative doc- umentary as a for defen- failing dant’s violation of rules to reveal the existence of the evidence until Killean, trial. In (App.1995), * MORE, Appeals, partici- Judge J. did not of the Arizona Court of Justice ROBERT CORCORAN Const, Two, decision; designated pate pursuant sit in in this to Ariz. Division Justice 6, § the Honorable JOSEPH LIVER- Corcoran's stead. art. *2 (1995). prevented prosecu the The violation judge found concluded because the trial that as a rebuttal locating from Kenefick tion lawyer had acted in bad that the defense not (He defendant re was called after faith, an abuse- witness. preclusion of the evidence testimony. in his phone number vealed his disagree vacate that of discretion. and We testify to involvement but refused He denied opinion. loss of rebuttal subpoena.) The without a of disagreement Our with by of corroboration. balanced the loss appeals a As court not is narrow one. that testimo still able to offer his Defendant was ed, preclusion of yet is not clear whether it Kenefick; even ny rebuttal without constitutionally permitted defense evidence is chosen, profited the with sanction finding faith willful mis absent a of bad or present to the and able from violation Lucas, Michigan v. U.S. conduct. See the Other remedies defense to trier. 111 S.Ct. 114 L.Ed.2d The trial inadequate. be found legitimately required, finding we believe Even if such a is long a continu judge could not be sure how in it was either that on the record this case necessary Kenefick’s would be to obtain ance found, The made or mandated. trial de testimony. A mistrial could act charitably, counsel did not perhaps that clared, necessity found to be manifest “dilatory and in bad faith but instead was misconduct, but counsel’s because of defense doing clearly provid negligent in is not what important interest that would defeat the Discovery.” of this ed the Rules We read Taylor judicial efficient administration. failure was not motivated saying as Illinois, 400, 416, 108 prosecution from prevent the a desire to (1988), pre that established evidence, gathering though in fact it rebuttal seri clusion is an effect, from the but instead resulted that discovery violation. ous required. simple to do what the rules opinion The of the court is However, faith is not the absence The convictions and sentences are vacated. preclusion to alone sufficient avoid where affirmed. misconduct, as an unex there is willfirl such require. do the rules plained failure to what FELDMAN, C.J., and MDELLER de No was offered here. That JJ., MARTONE, concur. at knew of the evidence least fense counsel is he obtained trial clear because week before Justice, ZLAKET, dissenting. Vice Chief subpoenas that time. for that evidence opinion majority to I cannot subscribe special law was a certified criminal Counsel supports unnecessary exclu- because it He thirty-eight years’ experience. ist with and exhibits in important witnesses sion ignorance could not and did claim defendant, showing absence of requirements the rules. When stake, anything to liberty is do whose counsel know court has found defense a defen- their late disclosure. Where with legal perform a obli ingly failed to known discovery is innocent of the violation dant finding gation, the is one of miscon willful has other remedies avail- the trial court support any There is no duct. evidence it, I the exclusion of submit able finding in this other case. considered in- generally appropriate. willfulness the behavior Once the argument’s clear, sake that preclusion also Let us assume propriety is is advocacy of zealous some tortured view analysis under the evident seek an advan- defense counsel to prompted While 140 Ariz. intentionally failing tage by knowingly and important, cor evidence was precluded If timely his client disclose the witnesses. roborating as the defendant’s shenanigans and had no of these possible guilty party, third the existence of them, penal- who should be precisely part took proportionate the sanction was stand, here ized? As matters violation. the harm caused consequences. The defen- Krone, 621 faces serious 897 P.2d dant, regard- prison, agree on the possibly is faith. with deprived impor- good because he was of evidence lawyer’s less of or bad Something wrong tant to his case. actions at least know- that his were picture. this ing I believe the intentional. *3 impose proper remedy would have been may It be an fact of unavoidable life attorney, perhaps to sanctions on the people the unpleasant will sometimes suffer request for ethical investigation Bar attorneys’ effects of their sins. Neverthe- time, assuming there violations. At the same less, every I believe we should make effort to client, wrongdoing by evidence of prevent occurring. this from have a mistri- the trial court should declared 243, 199, (1979) 252, 599 208 prejudice al when late disclosure (“Prohibiting calling of witness should then apparent. A could became continuance only be invoked in those cases where other permit time have been ordered to the state stringent not applicable less sanctions are investigation preparation. additional justice.”). find little effect ends of Smith, swpra (preclusion vital defense See ag- consolation un- though even state witnesses too severe grieved subsequently petition client file a can gave aware of their and defendant post-conviction alleging relief ineffective disclose). for the assistance of counsel. See Rule Ariz. notes, requests As the mistrial would are seldom R.Crim.Proc. Such Moreover, justified ne- they on the basis of “manifest granted. frequently take resolve, cessity.” McLaughlin Fahringer, during considerable time to which 274, 277, usually Ariz. Be- the defendant is incarcerated. responsible, there cause the defense range is a There broad available sanc- argument jeopar- no reasonable be 15.7, tions for See violations. Rule dy Washington, had attached. Arizona v. clearly size Ariz.R.Crim.Proc. One does all, ought fit nor should it. to be Sanctions and, my to the of each case tailored facts view, only bear culprit the brunt Therefore, I reached concur the result why the of them. I cannot understand appeals. it, lawyer’s bad or lack of should influ- anything severity ence other than against A
sanctions be assessed him. similar, separate, analysis might but nec- be essary respect if there to the defendant ZAMORA, Petitioner, Rodriguez Daniel any indication that he had hand in the disclosure.
late Assuming culpable was the ac- REINSTEIN, Judge S. Honorable Ronald innocent, penalties tor and the client was Superior Court of the State ought imposed to be on the former. The Arizona, in and for the of Mari- still to a full fair latter should be entitled copa, Respondent Judge, dispos- all evidence at trial with available Arizona, ex STATE of rel. Richard if it al. On ROMLEY, Maricopa County Attor- knew approved the discov- Party ney, Real in Interest. ery ploy, may to exclude sanctioning addition to the law- No. CV-95-0335. completely yer. In the of a innocent case mistake, course, has sanctions, impose limited or none at all. 7,May 1996. Here, conducting hearing, after apparently itself law- satisfied responsible, though yer was it found his even
conduct not to have been motivated