*1 P.2d Arizona, Appellee, STATE LaBARRE, Appellant.
Paul David 1321. 1320 and 1 CA-CR
Nos. CA-CR Arizona, Appeals
Court of
Division
Department B.
April 1, 1977.
Rehearing Denied June 28, 1977. Denied June
Review
approximately six days prior Ap- thereto. pellant argues that since he had been re- quired under the Rules of Criminal Proce- disclosure, dure to make prior not only of Babbitt, Bruce E. Atty. Gen. William his alibi defense and alibi but of Schafer, III, Counsel, Div., J. Chief Crim. all other witnesses whom he intended to Jacobs, and Thomas A. Attys. Gen., Asst. call, that the State should have been re- Phoenix, appellee. quired to reveal this rebuttal witness as Harris & Peacock by Harris, Donald W. ascertained, soon as she was citing Wardius Phoenix, appellant. Oregon, U.S. 93 S.Ct. agree. L.Ed.2d 82 do not OPINION Wardius, statute Oregon WREN, notice of an pretrial Judge. give defendant require the state to alibi defense but did appellant, LaBarre, Paul was con- the names of witnesses it reveal in advance victed of robbery illegal use of a tele- alibi. The would call to rebut claimed phone after a consolidated jury trial on the held that the United States two charges. He was sentenced to serve a requiring advance notice of could term of ten to twenty-five years on the be enforced unless robbery conviction and to time already rights as to that alibi were given to the served illegal use of the telephone. criminal defendant. Since the defendant Appellant has raised following issues virtually no discovery rights under Ore for our consideration: gon law the High Court held that the Ore 1. Whether a rebuttal witness for the gon court had acted improperly in enforcing State was properly permitted testify be- the notice of prevent alibi rule to presenta cause of non-disclosure. tion of that defense when the defendant had not the requisite notice. 2. Whether the trial court’s on ruling motion in limine was violated by the State. The State here contends that Wardius
3. Whether deniаl of appellant’s fully complied motion with since Nadine Bell for change of judge witness, was error. was not called as an alibi did not witness, testify as an alibi and was not even 4. Whether the court in permit- erred Wardius, known at the start of the trial. ting the use of hearsay evidence to impeach urges, require did not a witness whose testimony did not damage by the rebuttal witnesses not testi- State of the prosecution’s case. compli- fying in reference to the alibi. We have determined that error was com- Wardius, respond ance with State did mitted with respect to issue No. 4. How- giving defendant’s list of alibi ever, the évidence guilt was otherwise notice that Popello it would call a Mr. on overwhelming and-we therefore affirm the successfully rebuttal. The State contended conviction on the doctrine of harmless error. before the trial court that Wardius did not Bell, prior naming оf Nadine NONDISCLOSURE OF REBUTTAL since she part was not a of the State’s WITNESS case-in-chief and was called a gener- rebuttal, On called Nadine Bell al rebuttal witness. as a witness to conver- sation she had had with on the Interpreting Wardius as having ap planning robbery. The defense ob- plication only to rebuttal of an jected on the basis that she had not been permitted trial court Bell to testify, after disclosed as a until rebuttal witness shortly recessing overnight to allow counsel for ap before she even testify, was to though pellant an opportunity to examine her and known possible State as a her proposed testimony prior taking challenges “Rule 15.2 Disclosure witness chair. Wardius, urging
this
b.
Within 20
Notice of Defenses.
process
due
as a matter of constitutional
Superior
arraignment
after the
advance
give
the State was
provide
shall
all
witnesses.
notice of
its rеbuttal
with written notice
specify-
*3
the
will
ing
rests
as to which he
intro-
Admittedly,
upon
Wardius
all defenses
trial,
liber-
allowing
including,
consideration of
duce
at
but not
policy
broad
evidence
at
discovery
surprise
to,
self-defense,
al
avoid
trial.
insanity,
to
en-
limited
trapment,
impotency, marriage, insuffici-
a
the absence of
do hold
“[W]e
conviction,
ency
mistaken iden-
showing of state interests to
of
strong
two-way
notice
discovery
tity,
good
be a
and
character. The
shall
contrary,
must
persons,
in-
may
specify
street. The State
insist
for each defense the
himself,
for
so far
trials be run as
‘search
truth’
whom he
cluding
defendant
concerned, while
defense witnesses are
will
as
at trial in support
call
witnesses
its
game’ secrecy for
maintaining ‘poker
It
either
signed by
thereof.
be
un-
fundamentally
It
own witnesses.
counsel,
defendant or his
and shall be
divulge
to
a defendant to
fair
filed with thе court.
at
of his own case while
the same
details
c.
Disclosures
Defendant. Simul-
him
of sur-
subjecting
to the hazard
time'
with the notice of defenses sub-
taneously
very
prise concerning refutation
15.2(b),
mitted under Rule
which he
to
pieces
evidence
disclosed
prosecutor
shall make
to
available
at
412 U.S. at
State.”
reproduction:
examination and
2212, 37
at
L.Ed.2d
of all
(1) The names and addresses
however,
argument,
Defendant’s
him-
persons, оther than
defendant
misses the mark.
is the
who
self,
he will call as witnesses
whom
to
full
open the door of
disclosure
with all statements
together
listing
pur
witnesses
by them in connection
made
15.1,
to
all witnesses to be called
suant
case;” (Emphasis supplied.)
particular
in its case-in-chief.
to
of alibi it is the defend-
As
15.1
state
“Rule
Disclosure
disclosure,
and
ant who must
initiate
Guilt,
to
Inno-
Relating
Matters
a.
evidence,
and when
does so
doc-
No later than
or Punishment.
cence
reciprocity,
trine of
under Wardius makes it
Superior
arraignment
after
upon
to ascertain and
incumbent
make availa-
prosecutor
shall
identify
it
witnesses whom intends
use
for examination
ble to
defendant
rebut
that defense.
material and
following
reproduction
was no re
It is
be noted that
there
con-
possession
within his
information
within
1973 Rules
Crimi
quirement
trol:
Procedure,
which this
nal
under
of all
(1)
names and addresses
furnish
сonducted,
de
prosecutor
will call
persons
whom
any poten
fense
the names
counsel
togeth-
in the
as witnesses
case-in-chief
otherwise,
alibi or
rebuttal
tial
re-
written or
er
their relevant
wit
reveal
surrebuttal
statements;”
sup-
(Emphasis
corded
v.
it intends
assert. As to
Maricopa,
For
County
who will
fense the
witnesses
(1974),
our
be
where required from the under discovery of the 1973 Rules. 15.2(b) the state shall disclose the names re- discovery “Wardius requires persons and addresses of all whom the ciprocal, discovery in a criminal prosecutor will call as rebuttal witnesses two-way is not con- really street. The written or together with their relevant stitutional protections of the Fifth statements.” recorded Fourteenth Amendments deny official thereunder we Comment prosecution full disclosure of information find: from the defense. those area [sic] ‘ 15.1(f). . we do hold “Rule . . сase is defense’s strong showing in absence of a permitted, is clear that contrary, discovery state interest quires that be a op- there corresponding *4 a Wardius v. two-way must be street.’ portunity discovery by of defense (citation omitted).” Oregon, the prosecution’s case. in Nothing provision of the 1973 Rules of Criminal defense counsel and dissent What Procedure on discovery opposes argument this that have failed to note in the quirement of reciprocity. 15.1(f) The rules do requires prosecution Rule disclosure provide that must file a mo- is that of all rebuttal the rule tion to secure the information of specifically refers to the notice defenses the rebuttal by witnesses of the under Rule 15.- prosecution, asserted but it can 2(b). 15.1(f) of reference what hardly thought a denial Rule makes no due process to simple proce- any required this soever tо rebuttal disclosure by dural step.” Id. at to other witnesses noticed P.2d at by 15.2(c)(1), the defendant under Rule su The Wright court went on to hold is pra. thus clear even if Rule discovery requirement 15.1(f) had been in effect at the time of 15.2(b) Wardius as to Rule com- fully not have would still plied by 15.1(e)1 Rule under which the required to list Nadine Bell. defendant could request additional material appellant has referred us to no cases or information not otherwise cоvered extending principle beyond of Wardius Rule 15.1. specific rebuttal of defenses which a de- It is of course now clear that consti- is required fendant in advance of trial to requirements tutional for discovery enunci- Moreover, is obviously reveal. Rule 15.1 in Oregon, ated supra, Wardius v. extend not intended to include rebuttal witnesses. beyond Cf., alibi. they instances are unknown be- many Walton, (Iowa 1975) N.W.2d wherein prosecutor, cause the оther than in the am- held that required reciprocal Wardius bit of defenses which the defendant specific discovery as to witnesses on the defense of reveal, required rarely anticipate to can insanity. pursue. what course the defense will As to Moreover, in the Arizona Supreme specific insanity, defenses such as im- 15.1(f), which, adopted although etc., the zero in on potency, State can in effect time at the is rеflec- specific refute it. But the proof tive of the broad crystal court’s ball if prosecutor would need a he list, as to other defenses: in of trial and advance means, equivalent by 1. Rules of Criminal Procedure. Rule 15.1 other substantial any person court in its discretion order Upon “e. Disclosure Order the Court. may, upon showing it available to him. The court motion of the defendant make has order, preparation any pеrson request substantial need of his case affected modify compliance additional material information not oth- would vacate or order if 15.1, erwise covered he is oppressive.” be unreasonable hardship unable without undue to obtain taining objection question put the names prior to the defendant’s other whether there were all other as to rebuttal witnesses to potential masks his car and matters. a mistriаl. moved for Arizona’s notice-of-defense The court order We find no error. carefully now (Rule 15.2) hedged against cross- prohibition limine was not reciprocal duties requiring defendant, and the defend- examining the offer in rebuttal witnesses it proposes presence already admitted ant Furthermore, Rule listed defense. have others. We mask when asked about infor 15.1(e) for additional is still available no prejudice. there was determined rights in discovery imbalance Any mation. findWe completely
is therefore minimized. no as to Bell.2 EVIDENCE TO error Nadine HEARSAY IMPEACH WITNESS JUDGE CHANGE OF witnesses was a One of request appellant’s turn next Jones, two previously who had told Melvin after the first trial change judge for a the appellant officials that law enforcement Following a mistrial. resulted crime to complicity had admitted counsel acknowl hearing at Jones took the stand for Jones. When show he had factual basis to edged that no however, a se asked prosecution, presiding criminal prejudice, bias or appellant’s al questions concerning ries of *5 Maricopa County Superior Court judge of own leged admissions him Jones’ having prejudice No denied the motion. police, to the Jones’ answers statements shown, we no error. find then negative. in The State the two law enforcement officers called LIMINE MOTION IN testified, objection, con who over defense statements im cerning the denial Jones’ out-of-court claims error in Appellant appellant. prosecu plicating his for after the of motion mistrial sup in limine to tor violated an order officers was testimony The the two the evidence does press Again evidence. urges improp- was hearsay appellant which appellant’s contention. support аrgues it erly The admitted. State impeach with a stock- offered to Jones’ appropriately The motion in limine dealt was appellant issue ing appellant’s mask found vehicle. denials. The raised in of when general problem When to have a detective to the sought goes evidentiary purposes appellant it at obtained a for what identify testimo- hearsay court detective was not use contradict order ny mention the fact he found of its own witness.
mask.
of the law disclos-
review of this area
Our
been devel-
standards have
from
es that various
note
the record that
the order
in
rule
However,
The traditional
oped
applied.
was
cross-ex-
complied with.
on
prior
out-of-
amination,
that evidence
objection,
Arizona was
without
witness
party’s own
statements
court
questioned
himself about
only
purposes
would be admissible
having оne in
Appellant
mask.
admitted
(a)
and then
when
impeachment,
but was uncertain as to the
his vehicle
testimony
prejudicial
witness’s
had been
as an
particular mask marked
exhibit. The
(b) the
nature
party calling him and
sus-
interrupted
the court
colloquy
(1975).
event,
an
40
If
defense is
universally
P.2d
it
held that
is almost
question
opportunity
undis-
to meet and
of a
does
the violation
notice-of-witness
testimony,
prior
proffered
automatically disqualify
closed witness
to the
the witness. State
here,
340,
Tuell,
generally
(1975);
held not to
Ariz.
done
is
v.
112
Nadine “It is court erred in its be a fenses’ to broad disclosure Wardius, error, ease, rebuttal of including and this his coupled with defendant’s his own ‘case- case well as permitting use of the state’s error evidence, all matters in-chief.’ to include should require trial, including will present which he versal. which he intends to introduce his those Mary G. Gilberto S. LEON testimony. own Leon, Appellants, goes con- requirement “The disclosure notification of ‘affirma- siderably beyond BYUS, George Byus, M. Widow of A. Julia tive defenses’ . . . Jr., Represеntative as Personal imposed by Apart requirements from Jr., George Byus, Appellee. Estate of A. specifically the court ordered the No. 2 CA-CIV 2350. defendant in this case to make the names Arizona, Appeals to the prosecu- all of his witnesses available Division 2. tor. April to make available To the names and statements of all of its wit-
nesses, permit but to to withhold
the name and statement of a rebuttal wit-
ness, principles process violates the of due in Wardius.
established view, this is my recognized 15.1(f) requiring
addition in 1975 of Rule to “disclose the names ad- persons
dresses of all whom the prosecutor together
will call as rebuttal witnesses relevant
their written or recorded state-
ments.” (Emphasis supplied). majori-
ty suggests this does not mean that all listed, only
witnesses must be those
relating defenses listed
defendant. an interpretation Such is con-
trary language of the amended Rule
itself, and is in violation of Wardius due
process requirements. sum, rules, under our
defendant must list not his defenses 15.2(c), 15.2(b),
under Rule but under Rule
must disclose the names of all witnesses he require- trial. I believe no lesser
will call at imposed upon constitutionally
ment can respectfully and I must therefore
dissent.