*1 VERNON THADDEUS TALIAFERRO v. STATE
OF MARYLAND Term, September [No. 1981.] February Decided 1983. *2 J., cause C. and argued The was before Murphy, Smith, JJ., and W. and Eldridge, Cole, Rodowsky, Davidson of Judge Special the Court Associate Menchine, Albert (retired), assigned. Appeals specially Braudes, Defender,
Michael R. Assistant Public with Defender, brief, Murrell, on whom was Alan H. Public appellant. for General, Attorney
Alexander L. Assistant Cummings, Sachs, General, Stephen Attorney with whom was H. on the brief, appellee. J., opinion delivered Court.
Rodowsky, JJ., J., Cole and dissent. Eldridge, Davidson, Eldridge, infra, dissenting opinion filed a page which Cole JJ., concur. Davidson, Petitioner, (Taliaferro), Vernon Thaddeus Taliaferro May jury convicted on in a trial before Circuit deadly Court for robbery Prince George’s County, weapon and commission felony. use of a handgun in the day
On the last petitioner sought trial to introduce the testi mony anof identity alibi witness whose was disclosed to the State for the first Acting time that date. under Md. Rule 741,1 the trial court the proffered excluded alibi evidence. There was other proof no from the defense. The conviction was affirmed the Court of Special Appeals in an unreported opinion. granted We certiorari to consider whether ruling "the trial court’s that Petitioner’s sole wit be permitted testify ness would not [d] constitute an abuse of discretion and/or a process.” denial of due We shall hold that, case, on the facts of this there was no abuse of discre tion or denial due process. rule, dealing causes,
1. part provides: with criminal in relevant Discovery Inspection. Rule 741. *3 Discovery by
d. the State. Upon request the of the the defendant shall: 3. Alibi Witnesses. Upon designation by time, place the State of the and date of the occurrence, alleged furnish the name and address of each witness other than the defendant whom the defendant intends to call aas present time, place witness to he show was not at the and date designated by request. the State its Continuing Duty f. to Disclose. If, subsequent compliance request with a under made this any compelling discovery, or party Rule with additional order a discovers previously requested required matter and to be furnished, or his promptly party he shall furnish the matter other to the trial, If during counsel. the additional matter is discovered furnishing promptly in addition to the matter to the other or party counsel, notify being his he shall the court that the matter is party. furnished to the other g. Protective Orders. Upon shown, good may motion and for cause court order the specified ceedings any during disclosures If pro- be restricted. at time brought party to the attention of court a has comply pursuant failed to Rule, matters not undisclosed matter hibit the with this Rule or an order issued to this may party permit discovery the court order that disclosed, previously strike to which the relates, grant continuance, pro- a reasonable party introducing in evidence the matter not dis- closed, grant mistrial, appropriate a or enter other order under party the is thereof. a circumstances. All to which material and information permit entitled use must be in time beneficial disclosed adult, (Parker), who Leo Parker The victim was John Road, Walkermill home at at his mother’s resided approximately at 1, 1979, September On Heights. District a knock home, He P.M., alone. answered Parker was at 9:05 Parker, man, unknown to who was It was a at the door. "Billy”. light inside named about someone
inquiring porch. lights outside on on, as were two house was as well face, a face to at distance the man conversed Parker and a second man feet, minutes. Then for an estimated five two handgun a pointed cocked up came behind the first spun man. of the first Parker Parker over shoulder mother’s room through and led the house his around at a mini- Jewelry, later valued which the men ransacked. That up. Parker was left tied was taken. $5,000,
mum array photographic police showed Parker evening the picture. Taliaferro’s Parker selected which did not include 1, 1979, a "look-alike.” On November photograph one as array. It con- police photographic showed Parker another identified as the picture Taliaferro whom Parker tained trial, also At Parker robber with whom he had conversed. person. Taliaferro in
made an identification of November Petitioner was arrested on on bail day. the next He remained
released on cash bail An indictment of continuously sentencing. until his man was returned December Taliaferro and a second for Taliaferro on Jan- appearance 1979. Counsel entered her filed a motion uary February 1980 the State 1980. On alia, discovery the "name and address requesting, inter the defen- of each witness other than the defendant whom dant intends to call a witness to show he was as *4 Road, Maryland on Heights, at” District 6801 Walkermill Under September approximately at 21:05 hours.3 1, 1979, due Md. Rule 741 e alibi witnesses was disclosure response was by February to be furnished 11. No written ever made. Taliaferro, but jointly Elijah Pringle indicted with was 2. An Howard separately.
was tried court, appeal, lack of based on point or on 3. was made in the trial No the State’s motion. timeliness of February 14, On 1980 a petitioner’s notice was sent to counsel, with a copy to Taliaferro at his address Baltimore City, setting 11, April trial for setting pretrial 27, for By conference March 1980. a notice dated March copy with petitioner personally, trial was reset from May 21, April notice, 1980. A March with copy petitioner personally, reset pretrial conference May March 27 to 1980.
Taliaferro attorney was with his at pretrial conference. The court was advised that there would be one defense parties witness.4 Counsel for signed pretrial both memorandum at that conference which reads in part: certify
Counsel further .. that . the names all exchanged witnesses now known have been by the parties and that this ready case is trial. certify
Counsel that all witnesses are available for the trial .... date
On morning May 21, trial was begin, scheduled to requested a Taliaferro’s counsel continuance. She advised the court that had given Taliaferro her the name and tele- phone Bellamy” interview, of a "Karen number at the first counsel had never been to reach the able witness telephone, day given but that Taliaferro had that counsel the witness’ requested address. The continuance denied. Trial began May on Taliaferro’s case at 2:55 P.M. jury.
the selection of A suppress motion to photographic identification was heard and denied. Trial on the merits proceeded testimony with the and of the Parker investigating police cross-examination, officer. On Parker that, crime, probation admitted at the time of he was on breaking. adjourned for storehouse Court P.M. 5:20 Thursday, Trial May resumed at 9:30 A.M. 22 with brief from Parker’s mother to the value of the as 4. by petitioner Statements made court to the at trial and his counsel anticipated indicate may that the defense witness have been identified at (also Bellamy Bellamy). that time as Caroline referred to as Karen There contention, however, nois that the State knew earlier than at trial defense was alibi. *5 Petitioner’s counsel property taken. The State rested. with the had in touch
advised the court that Taliaferro "been was you and that Taliaferro telling witness that I was about” delay here” from Baltimore. A "trying get to someone IV2 get him "try hours to requested was so that Taliaferro could here.” At 10:10 A.M. the court recessed until 11:30 A.M. judgment acquittal. for a denying after the defense motion the courtroom at 12:05 P.M. jury brought The was back into report instructions to back at and excused for lunch with 1:30 P.M. May 22
Colloquy testimony in the afternoon of reveal morning that spoken telephone Taliaferro had (Rich) Rich, an Edward Jr. in Baltimore. Taliaferro is also a gone had to resident of Baltimore. Taliaferro’s father Upper Baltimore brought Rich to court house P.M., corridor, Marlboro. At 1:25 in the court Rich had house Court prosecutor been introduced to the as an alibi witness. jury pros- box. The
reconvened at 1:30 P.M. with the ecutor, sidebar, testifying to Rich because "a objected couple gentle- of minutes before court I started to talk to the — gives opportunity man I me fair to do not believe that pursue investigate the evi- gentleman’s background this proposes give, necessary, get any dence that he and if testimony.” rebuttal witnesses to his The court was asked to preclude testifying. the witness from
Defense counsel stated that she had not known what Rich testify was to to until Rich came to the court house. She had given asked and he had previously Taliaferro for witnesses friend, Bellamy, the name of the Caroline whom counsel had get been unable to to court because of lack of an address. court, only alternative stating after continuance, pros- asked
excluding the was a name been dis- ecutor what he would have done had Rich’s colloquy week. This preceding closed as an alibi witness the ensued: "him,” morning of the personal pronoun, on the 5. The transition to the prospective witness
22nd is the first indication in the record that the not Caroline Bellamy. thing, For one I would have [PROSECUTOR]: *6 run a police department record had the check on lives, [Rich], con- try to determine where he what defendant, or the nection he has had with this I do past, things co-defendant in the all sorts of can’t may up I not come with spur on the of the moment.
anything. you that? long
THE COURT: How do need to do Monday. That me give would [PROSECUTOR]: time. adequate may
THE COURT: We have to do that. just my me schedule. [PROSECUTOR]: Let check 6] Monday Day.[ Memorial many jurors THE I wonder how of these COURT: jurors] next week. We are [as are due back to work they holiday if going to lose some of them have a Monday they might inquire and are not due back. I serve, time to many how of them would have more and then make a decision. jury, many of gentlemen
Ladies and of the how you your jury are service this week? winding up put
That that. Six their people up.[7] ends hands your investigation Is [DEFENSE COUNSEL]: going just checking to concern itself with police? exactly, I am not sure
[PROSECUTOR]: determine, may may it depending on what we just I require me to consider rebuttal witnesses. am certain, but I had no reason to believe there Monday, May 26, Monday May day 6. and was 1980 was last Day by government. § celebrated as Memorial (a) (1976). the federal See 5 U.S.C. Maryland Day May The State of celebrates on Memorial Friday following (1957, which was the of the week in 1980. Md. Code See (a) (7). Repl. Vol.), Maryland holiday § Art. courts observe the designated by State law. Md. Rule 1205 a. County, George’s Maryland adjoins 7. Prince of Columbia. District Many appears county’s employed by government. of the It residents are the federal judge attempting many jurors that the trial to determine how expire Friday, May might were told their term of service would plans day holiday have made for the three federal weekend. ease, this going were to be alibi witnesses in think about it. just and I would like to sit down and testify that he had proffered The defense that Rich would 22, 1979, had been injured August his back and head on months, three approximately to his house for confined during at least the first three or four weeks confinement, evening, house each Taliaferro had been his of the crime. Defense including September evening calls would suggested couple simple telephone counsel "a provide investigation” sought by and that "there is a day. replied could be done that The State He said there little more involved than a mere record check.” out in might be other factors which he would like to check disability. In the course of addition to Rich’s record and his *7 argument Attorney "[i]f his the State’s stated that the court case], me . .and also [the wants to continue it is fine with "willing go along putting that he to with” the case offfor was days. a few more
Following recess, judge, outlining trial after most of history case, that he was procedural of the ruled the alibi testi- exercising permit his discretion to refuse mony, comply with Rule 741 d 3. failure testify.
Taliaferro elected not to After a conference counsel in the court resumed the bench and Chambers give advised defense counsel that it would her like, record the you put if opportunity period made over a efforts that the defendant has produce time this alibi wit- whatever to locate anything ness because I don’t know that there done, what, he has anything, indicate if here to that, diligence as far depending on it is a matter of concerned, has been diligence and if as I am If thing. rewarded, today, may be one as of If thing. may be another diligence, that there is no much, diligence but there has been some thing. would be another
Taliaferro was sworn and testified. In substance he said that he had contacted Rich around December 1979. Rich was willing to come to court. At that time Rich living was at his house, mother’s left, but had subsequently and Taliaferro did not know where Rich living. Taliaferro gotten had in touch "yesterday, with Rich day yesterday” by before telephoning Rich’s mother’s house and Rich was there. Rich’smother had lived at the same address and had had the same telephone September number since of 1979. Taliaferro say could not when he had last called Rich’s mother’s home prior May 1980. When Taliaferro had called Rich’s occasions, mother’s home on prior he would leave a message for Rich but had never received return calls.
Defense
presented
counsel then
argument
based on the
factors set forth in
Myers,
United States v.
L. Ed. 2d 149 as ones to be considered in deciding whether to case, exclude. In that dealing with a prosecution witness, rebuttal the court listed the prejudice amount of resulting from disclose, the failure to the reason for non-disclosure, the extent to which the harm caused non-disclosure events, has been mitigated by subsequent weight properly admitted supporting evidence guilt, defendant’s and other relevant arising factors out of the circumstances particular case. As to the reason for non-disclosure, Taliaferro’s defense counsel argued that Mr. Taliaferro has testified the reason he talked to [Rich] in it, December about and then [Taliaferro] *8 was of opinion that Bellamy Caroline going to testify, he didn’t have an address for Caroline Bellamy. After he spoke Rich, with Mr. Mr. Rich moved, then and he made efforts to find out where it was he today lived. He didn’t know until where Mr. Rich lived. provided We couldn’t have that if we had to.
In deciding ruling stand, to let its in explained court part as follows: me, if I could have found that appears
It that in his efforts in diligent defendant was address, dili- name and and that his providing this I rule just yesterday, off that could then gence paid However requires. he done all that the rule has I have heard finding. I can’t make that From what way testified, this defendant has he has of the mother ofthe address witness. known the same mother of the witness still resides at in It is also address resided at back November. she very important to this defendant to obviously have here, one of the most probably this alibi witness his life .... decisions of He waits until important days actually locate this wit- two before trial ness, early He when he could have done so on. effort, yesterday to except
hasn’t made real witness, speak it springs locate this and then so day [Emphasis of trial.... on the state the second supplied.] notice of underlying procedure requires
The reasons a in Advance Notice Epstein, an alibi defense are well stated L., Alibi, Criminology & Police Sci. J. Grim. 31-32 (1964):
—One. Foremost is the idea that the statute prevents "hip surprise. Alibi has been termed pocket” defense because of the ease with which can be manufactured for introduction in the final hours of trial.
—Two. The statute acts to deter false alibis because defendants know that the information investigated furnished will be before trial.... —
Three. investigation Pretrial results saving money and trial time. This occurs two (1) ways. If, investigation, after the the district attorney true, is satisfied that the alibi is the case (2) dismissed; should be attorney the district is not *9 defense, surprised by at trial the alibi and there is investigate no for a continuance to pre- need pare .... — presented
Four. Alibis which are at trial will be respect.... [Footnotes accorded more omitted.8] Florida, 78, 81-82, In Williams v. 399 U.S. 90 S. Ct. (1970), rejected 26 L. Ed. 2d the Court a due
process challenge to Florida’s notice of alibi rule: linger
We need not suggestion over the that the discovery permitted against petitioner the State in deprived process” this case him of "due or a "fair discovery by trial.” Florida law provides liberal ' against the defendant and the carefully rule hedged notice-of-alibi is itself reciprocal requiring duties state disclosure to the‘ defendant. Given the ease with which an alibi can fabricated, protecting be the State’s interest against itself an eleventh-hour is defense both interest, legitimate. Reflecting this obvious notice-of-alibi at provisions, dating least from are now in existence in a substantial number of system adversary hardly States. The of trial is itself; yet end in poker game is not in which players enjoy right always an absolute to conceal their cards until played. ample We find room in that system, concerned, far as "due process” as least for the designed instant:Florida which is in the criminal trial enhance the search for truth ample both the defendant and the State insuring certain crucial to opportunity investigate facts guilt [Footnotes the determination of or innocence. omitted.] since 1975 Federal Rules of Criminal Procedure have Upon
included a in Rule 12.1. requirement notice of alibi important in the Epstein 8. that the rule "is advances as a fifth reason discovery context cases.” of more liberal criminal *10 party comply requirements failure of either with the may testimony "the court exclude the party undisclosed witness offered such as to the defen- at, dant’s presence alleged absence from or the scene of the (d). offense.’’ Fed. R. Crim. 12.1 P. United States Courts of Appeals view the of the sanction imposition of exclusion as involving an exercise of discretion and the standard for appellate review is whether there has been an abuse of discretion.9
A requirement
defense,
for notice of an alibi
with identifi
cation of proposed
witnesses,
alibi and rebuttal
to alibi
now
exists under statute or rule of court in 35 of our sister states
and in the District of Columbia. There is an express provi
sion for exclusion of alibi
testimony
witness
as a sanction for
violation
in all but
three
jurisdictions.10
these
Twenty-three jurisdictions provide that for violation of the
alibi
requirements
disclosure
"may”
the court
exclude the
11
testimony.
states,
In eight
provision
sanction
states
that the court shall exclude the alibi or alibi rebuttal
testi
mony,
party
unless the
offering
good
it shows
cause to the
contrary.12 In Michigan, the statute in terms mandates the
exclusion of evidence offered in
of the disclosure
violation
(8th
Woodard,
1097, 1100
1982);
9. United States v.
F.2d
671
Cir.
United
(6th
White,
899,
1978);
Fitts,
States v.
F.2d
902
Cir.
United States v.
(10th
1978);
Barron,
576 F.2d
757
Cir.
United States v.
575 F.2d
(9th
1978);
Myers,
supra,
(D.C.
1043;
Cir.
United States v.
550 F.2d
1975).
Smith,
United States v.
524 F.2d
Cir.
("the
(b)
P.,
may
may upon
appropriate
motion
10. Me. R. Crim.
Rule 16A
take
court
action.”);
("the
9.02,
Minn. R. Crim. P.
9.03
court
circumstances.");
just
notice ... enter such order as it deems
m tiie
Wasti.
("the
Super.
may
Ct. Crim. R. 4.7
court
.. . enter such other order as
circumstances.”).
just
deems
under the
("the
18.3,
15.2, 15.7;
11.
R. Crim. P.
Ark. R. Crim. P.
19.7
court
Ariz.
may
prohibit
introducing
party
...
from
in evidence the material not
disclosed....”);
12.1;
3.200;
R.
P.
Haw. R. Penal
D.C.R. Crim. P.
Fla. Crim.
(d),
12.1;
(1979);
Sup.
(g);
§
P.
Idaho
Ill.
Ct. R. 413
La. Code
Code 19-519
(West
(b);
1981);
Crim. Proc. Ann.
R.
P. 14 Miss. Unif.
art. 727
Mass. Crim.
4.07;
25.05, 25.16;
Sup.
Cir. Ct. Crim. R.
Mo.
Ct. R.
Nev. Rev. Stat.
(1981);
100;
3:11;
§
Super.
174.087
N.H.
Ct. R.
N.J.R. Crim. Prac.
N.M.R.
32;
(McKinney
§
Crim. P.
Supp.);
Pa. R. Crim. P.
N.Y. Crim. Proc. Law 250.20
1981 Cum.
1982);
12.1;
(Page
§
N.D.R. Crim. P.
Ohio Rev. Code Ann.
2945.58
12.1;
C;
(c);
P. 16
Tenn. R. Crim. P.
Utah
305 R.I.R. Crim.
(1982);
§
Code Ann.
77-14-2
R.
P. 12.1.
W. Va.
Crim.
(1978);
etseq.
§
§
12. Colo. Rev. Stat.
16-7-102
Ind. Code Ann.
35-36-4-1
(Burns
(10) (West
1979,1982
813.2,
§
Supp.);
Cum.
Iowa Code Ann.
Rule 10
requirements,
any express good
exception.13
without
cause
Kansas,
In
permits adding
statute
to a list of alibi wit
filed,
initially
otherwise
to man
properly
appears
nesses
but
date
give
exclusion for failure to
notice.14
states,
system,
most
as in the federal
the sanction to be
applied
rests
the discretion of the trial court where there
has been a violation of a
requiring
timely
rule
disclosure
of alibi or rebuttal witnesses in a criminal case. Application
ofthe sanction is reviewable on
if
appeal to determine
discre
tion
has been abused. The
exclusion
defense alibi
many
witnesses has been sustained in
cases.
Among the more recent
reaching
decisions
that result are:
(D.C.
States,
Clark v.
1979);
United
389
have decided that the
exclusion of alibi
offered
an accused
discovery
has violated an alibi
requirement
who
does not offend the
right
Sixth Amendment
to have compul
sory process
obtaining
for the
reasoning
of witnesses. "The
is that
prevent
alibi rule does not
a defendant
compelling
witnesses; rather,
pro
the rule
attendance
vides reasonable
presentation
conditions for the
of alibi evi
Smith,
541, 543,
dence.”
State v.
88 N.M.
543 P.2d
836
(N.M.
1975).15
Ct. App.
Crouse,
See also Rider v.
Supp. 1974); Dodd, 1077 234, 237, Pa. State v. 101 Ariz. (1966); 418 P.2d Roberts, 574 State v. 226 Kan. 602 (1979); Jackson, P.2d 1355 People App. Mich. (1976); Flohr, N.W.2d 132 supra, 367; State v. 301 N.W.2d Vecchiolli, 483, 224 Commonwealth v. Super. 208 Pa. A.2d 96 (1966); Burke, State ex rel. Simos v. 41 Wis. 2d (1968).17 N.W.2d 177 15. timely gave general Smith rely the defendant notice of intent to defense, on alibi give as a but did not the names and addresses of alibi specify place witnesses or at which the defendant claimed to have been alleged offense, required by the time of applicable as rule. application Michigan Jackson mandatory sustained 16. exclusion gave trial, sanction where three days the defendant notice seven before but it was days late. arising 17. There are corpus cases under the federal habeas statute in which exclusion of defense alibi witnesses has been held to constitute a process denial particular presented. of due Mulcahy, facts Hackett v. (D.N.J. 1980) Supp. 493 F. given by involved a notice of alibi defense prior counsel for the general accused which was due on June 3. A notice had given been identity June July 18 and the ofwitnesses was furnished 7. Trial did not commence until November 1. After the defendant’s new counsel *12 opening made an statement which indicated that the defense was alibi and called, that alibi prosecutor witnesses would be the told the court he was witnesses,” "not too concerned with alibi and that he had not talked with prior attorney. them. The first defense witness was the He was concerning untimely cross-examined attempted the notice. When the defense testify, they to have the alibi witnesses were excluded and the
jury was told the alibi defense would not be allowed because defense counsel complied had not with court rules. The United States District Court concluded: error, highly
In view of the technical nature of his counsel’s the any error, complicity by petitioner absence of evidence of in that any error, prejudice by the lack of the State caused by the the severe prejudice petitioner preclusion sanction, caused the and the by prosecution jury, use of that sanction before the findwe deprived rights pro- this defendant was cess of law. of fundamental and of due atLid- 1340.1 permits Md. Rule 741 the trial court to g Subsection of failed to com- appropriate party fashion an order when a has alia, "may,” "grant A court inter a rea- ply with that Rule. continuance, introducing in prohibit party sonable from ... or enter other evidence the matter not disclosed Maryland The appropriate order under the circumstances.” possible recognizing while exclusion as expressly sanction, specify imposition. mandate its Nor does does not violation, good in the absence of exclusion as the sanction sanction, if g cause for it. Rule 741 leaves the imposing imposition The any, to the discretion of the trial court. exclusionary the State or the accused under against sanction only by principle Rule 741 is circumscribed abuse limitations, under all of the by discretion and constitutional relevant circumstances. contemplates that the trial court exercise of discretion act, ordinarily analyze particularly
will
the facts and not
by
exclude,
a violation disclosed
simply on
basis of
(Fla. 1973) (trial
file.
In the at case hand the rule gross violation was a one. There was no attempt compliance. at This is not a case where notice was given days late, a few trial, but well in advance of given or in a technically defective form. Illustrative of what was held to be a non-compliance technical Silva, is State v. (1977).
118 R.I.
374 A.2d
trial,
Six
prior
months
days
but 10
late
under the court
the defendant filed a
defense,
notice of alibi
stating
spent
that he
the entire
evening in question at
specified
two
addresses and iden-
tifying three alibi witnesses. Five
prior
weeks
to trial the
disclosure was supplemented by an additional witness’
name, without an address. The trial court excluded the alibi
testimony for lack
compliance
with the rule’s specificity
requirements. It was held there was
compliance
substantial
with the letter and spirit of the rule and that "the trial court
abused its discretion in excluding the defendant’s alibi
testimony.”
Id. at
Nor did present any Taliaferro justifying excuse the viola- tion. His counsel had asked about Taliaferro’s witnesses at the first interview given and had been the name and tele- phone Bellamy. number of Caroline While the record does explicitly Bellamy show whether Ms. was to be an alibi not, witness or she there presented was not as witness and is no postponement contention of error the denial of a presence obtain her in court. It was Rich who was excluded. Rich,
Under
he
proffer,
Taliaferro’s
was with
at Rich’s
Baltimore, every night
period
mother’s home in
for a
weeks surrounding
including
night
robbery.
Taliaferro knew
name
Rich’s
least his last known
Indeed,
address at his mother’s home.
in the preceding
being
December Taliaferro and Rich had discussed Rich
*14
give
witness. But Taliaferro did not
Rich’s name to defense
day
counsel as an
until the
of trial. The
alibi witness
second
only justification
attempted
present
which Taliaferro
to
was
that he had not
locate Rich. That explanation
been able to
did
the violation. It
persuade
ignore
the trial court to
diligent
could not find that Taliaferro "was
in his efforts in
providing this name and address ....”
this,
respect,
duplicates
the instant matter
United
White,
States v.
F.2d 899.
supra, 583
There
accused was
witness, Walker,
identity
aware of the
of his alibi
for months
trial but did not reveal Walker
until the close of all
prior
of the
given
evidence. The reason
was that the accused had
been unable to
locate Walker.
Sixth Circuit affirmed
witness,
barring the alibi
and said that
the mere fact that
did
appellant
not know Walker’s
appellant
whereabouts does not excuse
from com-
plying
identity requirements
with the
Rule 12.1
(a). If appellant had tendered notice of Walker’s
identity,
oppor-
the Government would have had an
tunity to locate Walker for the benefit of both
parties. [
Similarly, charged where the defendant was with commit- ting a crime August night 17 and contended that each during period August August 13 to 21 he had spent his " time in premises occupied by taverns then later 'at the ” Peasecke,’ give Alice but did not notice of alibi until 5:00 trial, day the alibi preceding o’clockon the afternoon of good evidence was excluded. It was held there was no cause "defendant was shown for the failure to disclose because the aware of this alibi at all times and could have served his v. compliance notice of alibi in with the statute.” Jensen 568, modified, 36 Wis. 2d 153 N.W.2d (1967). Wis. 2d 154 N.W.2d In United States Barron, supra, F.2d the defendant did not disclose defender public his alibi defense and alibi witnesses to his jury empanelled. counsel until had been Counsel after the Based on the immediately government. advised the defense, cooperate accused’s refusal to in his own steadfast case, strength government’s it was coupled with excluding held that there had been no abuse of discretion witnesses, though, timing the alibi even as a result of discovery request, the defendant’s answer government’s day one late. Alibi witnesses who were known to Smith, the defendant were also involved in United States v.
supra, pretrial 1288. At a conference defense coun F.2d sel proposed told court that the defendant defense, alibi but counsel was unable furnish the names provide witnesses because the defendant had failed to counsel their trial names. The court ruled witnesses testify. trial, would not At be allowed the defendant presented family witnesses, members of his wife’s as alibi *15 but the court adhered to previous ruling. its The District of Columbia Circuit found no abuse of discretion because no explanation given delay had in been the defendant’s furnishing Braxton, names the witnesses. People supra, App. Ill. 3d 401 N.E.2d involved an attempt day on discovery the first of trial to amend answers defense, to present an alibi An which was denied. wit alibi ness, days, precluded defendant’s wife of two was from tes tifying. In affirming, appellate court said: produced
[N]o showing evidence was that the defen dant was unaware of his alibi defense and the exis prior tence of the day [the alibi witness to of trial].
Therefore, judge the trial did not abuse his discre tion in denying the motion to amend the answer to discovery. App. [81 Ill. 3d M.E.2d at 1067.]
Cases like foregoing may be contrasted with Williams v. (1981). 97 Nev. P.2d 1263 There the accused had witnesses, furnished counsel the names offour alibi timely notice, counsel had through dictated the hut inadvertence, days had failed to file until prior seven to applicable scheduled trial required filing date. The rule days prior However, ten to trial. because of a postponement, trial did actually begin days filing until ten after the Further, the notice. exclusively case State’s rested on the testimony of the victim. Under these circumstances it was good held that had been shown for relief cause from strict compliance with the statute. Rich it is clear that prejudice, to the factor of respect
With had whom Taliaferro non-party was the witness Further, judge recognized, the trial testify. to as court important pros to the defendant. The Rich’s only by the victim. on an identification ecution’s case rested testify Rich However, permitted the trial court had court, would the State produced afternoon when he was opportu would have had no severely prejudiced. It have been investigate or to nity investigate background Rich’s alibi, minute, place last which undertook disclosed at the Taliaferro mother’s home. Taliaferro with Rich at Rich’s point His have been done. does not contend that this should by failing grant its discretion is that court abused investigate, particularly the State to continuance to enable that a the State conceded since Taliaferro contends cure day prejudice. argu would This postponement IV2 and essen to a continuance reducing prejudice ment ties argument as an tially raises the same considerations an abuse to obtain a witness is the denial of a continuance that the defendant In that context we have said of discretion. " show, alia, diligent he made [has] must inter 'that ” State, 288 the evidence.’ Jackson v. proper efforts to secure (1980), 191, 194, an earlier quoting Md. 416 A.2d *16 (1957), 638, 640 454, 459, 135 A.2d State, 214 Md. Jackson v. 784, 2d 816 2 L. Ed. 78 S. Ct. denied, 356 U.S. cert. (1958). own testi court, on Taliaferro’s Here, trial based the the name providing in diligence both mony, a lack of found to Taliaferro’s Rich, respect with of and and address whereabouts. determining Rich’s in explanation, IV2 day con- that a concession argument of a Taliaferro’s overstates to the State any prejudice cure tinuance would pros- The by reflected the record. as prosecutor’s position the Thursday afternoon delay a from ecutor’s statement was time” "adequate him give until would Monday morning background which Rich’s a reference to the time within checked. The State’s with the be connection defendant could bring in might that he wish to Attorney also asserted in Obviously was not a prosecutor rebuttal witnesses. hour, on him at the eleventh
position, sprung when Rich was investiga- yet an as unperformed to advise the court where relieve the State a would would lead. While continuance tion to a being required of cross-examine prejudice of severe continuance immediately, the short surprise alibi witness equate never petitioner for which contends could February to from prepare period to in the opportunity witness. That May 21 to meet a alibi defense disclosed 741 in this case. under Rule State was entitled to what the of investigation of Rich and cannot know what an We treat the revealed, speculation alibi and it is to would have of period involving a continuance fixed alternative as IV2 investigation, days. after trial If initial 2V2 of purpose for the requested had a further continuance Rich, impeach the alibi and obtaining witnesses rebut alsoWe could have been further exacerbated. the matter no Taliaferro express that there was note waiver rebuttal the State of alibi wit- right to notice claim nesses. jury that this was complicating problem
Further was trial. The trial court also entitled to consider that the Friday, jury ended on term for half of its estimated of service until May continuance would be so that minimum Tuesday, May jurors likely had plans unless which those day holiday ignored. made for the three federal were to be It has that the exclusion sanction should be one been said resort, of last "invoked those cases where other be to effect ends stringent applicable less sanctions are not 243, 252, justice.” Smith, 599 P.2d State Ariz. (1979). if to a like the one at approach, applied This case bar, seriously major undermines purposes one — reciprocal discovery avoiding interruption alibi rule trial delay. Rules of Advisory Committee on Federal Procedure, Fed. R. Crim. P. 12.1 recommending Criminal 294-95): (62 stated F.R.D.
Prohibiting testifying a witness whose name provision was not disclosed is a common in state generally statutes.... It assumed that sanction is essential if the notice-of-alibi rule is to significance. have practical 12.1 will serve
Rule a useful purpose even though rule 16 now requires disclosure of the names and government addresses of and defense witnesses.
There are identity cases which the of defense known, may may witnesses be it but come as a surprise to the government they intend to tes- tify as to an may alibi and there be no advance notice of the details of the claimed alibi. The result often is unnecessary interruption delay government trial to enable the to conduct an appropriate investigation. objective The of rule 12.1 prevent by is to this a providing mechanism which
will parties specific enable the to have information in advance of trial prepare to meet the issue of alibi during the trial. point is well made Epstein, Advance Notice of
Alibi, supra, L., 55 J. Crim. & Criminology Police Sci. 35-36:
Excluding the evidence proved has effective .... contrast, the threat of a continuance is not a all; sanction at prosecution granted would be ground continuance on the surprise, even without statutory If all direction. the defendant risks is continuance, he will purposely give notice because the continuance is valuable to him. When granted, it is it after the prosecution comes has presented its get evidence and allows cold. The effect using continuance as a "sanction” is also contra the deep concern of the bench and bar delay. trial *18 ques have considered courts which majority decisions, generally are
tion,
reasoned
and the better
White,
United States v.
analysis. See
Epstein’s
with
accord
("Because
testimony was
Walker’s
902
supra, 583 F.2d at
at the close of
had rested
parties
until both
not offered
investigation] would
trial,
[for
a continuance
day jury
three
Barron,
States v.
satisfactory.”); United
not have been
(If
discovery and the
at 757
liberal
supra, 575 F.2d
if the
effectuated and
delays "are to be
prevention of trial
impose
to
teeth,
must be able
trial courts
rule is to have
case.”);
in this
sanctions,
employed
one
even the drastic
(1966)
237,
sion essential for rule to have ("[A] delay in the Christensen, at 223 supra, v. 323 N.W.2d time interval between proceeding would create a substantial evidence and the defendant’s presentation of the State’s only disrupts judicial process evidence of alibi. This not trial.”); may jurors but and the outcome of the also affect ("[W]e recognize at 374 Lindsey, 284 N.W.2d supra, State v. at its sanctions meaningful no other the trial court had contin consider a into trial too far
disposal; it was
426-27,
Woodard,
Super.
N.J.
.”);
v.
uance . ..
State
938, 89 S. Ct.
(1968),
denied, 395 U.S.
130, 134
cert.
246 A.2d
(1969) ("To
provi
have waived
23 L. Ed. 2d
[during
in the trial
point
at
sions of the
witness],
have
would
last
of the state’s
cross-examination
— and an
the State
prejudicial
unfair and
highly
been
.. .
the witness
investigate
the State
adjournment to allow
State
application.”);
hour
this eleventh
would not have cured
("Quite simply, a defen
Flohr,
supra,
v.
301 N.W.2d
withheld
evidence
right to submit
an absolute
dant with
discovery
by being uncooperative.
little to
has
lose
appear
[to exclusion]
Alternative sanctions
less effective and
discovery,
delay
expense,
often entail
curtailment of
and
even
State ex rel.
potential
problems.”);
constitutional
Simos
Burke,
supra,
Judgment Special of the Court of Appeals afñrmed. by
Costs to paid be the petitioner. J., Eldridge, dissenting: Supreme
The
Court
the United
has
States
twice
"[wjhether
expressly
question
reserved the
and to what
extent a State can
"by
enforce” a notice-of-alibi rule
exclud-
ing relevant, probative
by
defendant,
evidence” offered
recognizing
question
that it "is a
raising Sixth Amendment
Florida,
78,
issues.”
Williams v.
U.S.
83 n.
90 S.Ct.
(1970).
1893,
U.S. 472 n. 93 S.Ct. L.Ed.2d case, Under circumstances like in those this where the sanction of for violating exclusion a notice-of-alibi rule operates prevent a criminal calling defendant from his only alibi presenting only witness and thus from his defense to the charges, deliberate, where violation was not any prejudice where prosecution to the could have been continuance, application a cured a short exclusionary notice-of-alibi rule’s sanction violates the Sixth Constitu- to the United States and Fourteenth Amendments procedural rule holding state majority, tion. that the The witness, only has right to call his petitioner’s overrides the right constitutional petitioner denied fundamental most — right in a criminal case exists defense.
I. major- impact of the better the full order to understand the critical ity’s position, necessary it is to recount some of facts this case. Taliaferro, was indicted petitioner, Vernon handgun in the com-
robbery deadly weapon, use of a with a nol felony, charges lesser which were mission of a trial, May 21, prossed. day Wednesday, first of his On the in order that petitioner requested continuance (a witnesses, friend), Bellamy girl former one his Carol testify. could be counsel stated that summonsed to Defense Bellamy trial, she had to reach before the been unable Bellamy’s although telephone had number for some she had time, day her and that she obtained address on had *20 to objection had no a though of the Even the State trial. request,
continuance, the denied Taliaferro’s judge trial day the of the trial stating: has waited until "The defendant not, in of a witness which give to his counsel an address case, I my view, a so will not continue a reason to continue it.” trial, Thursday, May the day
On next the of his Rich, present was then petitioner sought to Edward who call objected on courthouse, in the The State as an alibi witness. Rich as ground
the had to name that Taliaferro failed * pur- request made response alibi to the witness State’s Court, kept 1. in mind in ruling, although This should be not before this
considering petitioner’s ability to his defense. to Maryland suant Rule 741. State that it The claimed had Rich, been surprised by proffer the last-minute of was him, and unprepared opportu- to cross examine had had no nity indicated, to his investigate background. The State however, objection that it have testifying would no to Rich’s if Monday, May the case were following continued until the 26.2 judge
The record that the appeared disposed shows trial the he continuing towards case until learned that the terms of of the were on and jurors expire Friday, six to that the following Monday Nevertheless, was a holiday. federal Monday holiday, was not a state and the court was required open day. to be on judge by that The feared that resuming Monday, the case he might disrupt long-weekend the plans jurors of the six whose terms were expire. judge, The however, inquiries made no to determine whether this fear any had basis. He made no effort to ascertain whether a brief continuance would a single juror. Instead, inconvenience the judge trial, trial simply refused to continue the and ruled that permitted Rich would not be to testify as a sanction for Taliaferro’s violation Rule 741.3 majority suggests statement, 2. The prosecuting attorney’s that the that Monday, May 26, sufficient, continuance until be would related to the background time within which Rich’s and connection with the defendant attorney, prosecuting however, could be checked. The inwas addition referring things moment,” spur to "all I sorts of can’t the do on before responding: "Monday. give adequate That would me the case off time.” Later the prosecuting attorney "putfting] days,” referred few more for a unequivocally willing go along he "I stated: am that.” shows, therefore, The record clearly the that State that a believed short by prejudice continuance would be sufficient and would cure caused the appears Although discovery majority violation ond-guess prosecution the rule. the to sec- prosecution attorney regard, the in this for the believe that the judge is the prepared best how much time he would need to be to cross-examine the defendant’s witness. Moreover, judge’s ruling excluding the trial witness not based upon judge’s view that short continuance would not be sufficient for prosecution. upon judge’s speculation Instead was based
jurors might be inconvenienced a short continuance. County adjoins majority speculates George’s 3. Prince because employed by many the federal District Columbia of its residents are day government, jurors "might plans made the three have holiday opinion, majority federal somehow weekend.” Later certain, likely referring "plans jurors becomes more made for the three which had those *21 above, however, pointed day holiday.” out the federal As violation of find that Taliaferro’s judge did not The trial deliberate; that the defendant he found 741 was instead Rule effort, except any real and "hadn’t made "diligent” was not yesterday, locate the witness.” a wit- excluding Rich as decision judge’s
After the trial the State not ness, ruling that requested counsel a defense prior his criminal Taliaferro with permitted impeach be record if he decided to take the stand his own defense. The judge request, denied counsel’s and the defendant never took the stand. any then, unable to
Ultimately, Taliaferro was defense had him. Taliaferro’s charges against defense to the the of alibi, sought to introduce been and he had Because of the trial testify himself. two witnesses and to Taliaferro’s "defense” judge’s evidentiary rulings, credibility of the State’s reduced to an attack on the against witness him. holiday plans any juror had judge whether made no effort to determine trial for shows, single day. not a Monday any this record As far as or for other resumption trial on
juror of the would have been inconvenienced Monday. jurors Moreover, in the the twelve disclose that of the record fails to population employees. of Prince government The total case were federal Commerce, Census, Dep’t 665,071. County U.S. of George’s Bureau of the — Popu PC80-1-A22, 1980 Population Characteristics Census of No. (1982). Inhabitants, num Maryland this total 22-12 Of lation: Number of eligible age ber, 450,000 18 and thus approximately persons the of are over Planning, Data, Dep’t Planning State jury duty. Md. of have of for Maryland, by ment of federal basis for Office (1982). By Age I been informed Population and Sex Depart Analysis, United States Economic an official in the Bureau of County Commerce, 71,912 George’s are residents Prince that figures, light is no employees. there government of these civilian County’s inference, solely George’s drawing on Prince based Columbia, jurors terms were proximity to the six whose that to the District of expire likely employees. were federal trial, judge had trial stage ofthe noteworthy that at an earlier 4. It is such admissibility would be of evidence anticipated rulings on that trial, judge announced day first of major trial. On the factor in the victim, robbery family acquainted” with the "personally he was live, they have been twenty years. where "I know having known them for judge my concluded house; But the they house.” have been in their case, my jury trying it is a "since problem” the case "no he would have function, basically, admissibility If the evidence.” is to determine admissibility evidence rulings anticipated judge that his had trial would determine jury, his be offered would not a defense whether or might been differ- have disqualification concerning the matter decision ent.
II.
The Sixth Amendment
to
United States Constitution
provides: "In
prosecutions,
all criminal
the accused shall
enjoy
right...
to
compulsory process
obtaining
have
Texas,
14,
witnesses in
In Washington
his favor.”
v.
388 U.S.
1920,
(1967),
Supreme
S.Ct.
See Oliver, also In Re 333 U.S. 68 S.Ct. (1948) L.Ed. (recognizing right to offer as one of several rights system which "are in our juris- basic prudence.”)
In Chambers Mississippi, 410 U.S. 93 S.Ct. (1973), Powell, 35 (410 Court, L.Ed.2d 297 Justice for the wrote emphasis supplied): U.S.
"The right anof accused in a criminal trial to due process is, essence, right to a fair opportunity to defend against the State’s rights accusations. The to confront and cross-examine witnesses and to call witnesses in one’s own behalf long have been recognized as essential process.” due defendant a criminal Chambers, held that the Court Mississippi voucher by a rights denied these impermissibly calling witnesses him from precluded had rule which testimony had been whose witnesses one of his own discredit damaging. judge’s applica case, of the trial as a result
In the proce to a mere pertaining nonmandatory sanction tion of a calling his from precluded the defendant was dural only defense his witness, presenting and thus alibi *23 Moreover, of the the violation to the state’s accusations.5 prosecution the deliberate, prejudice rule was not 6 Finally, the continuance. by a short concededly curable have been anyone would to show that record fails application of a This by inconvenienced a short continuance. the mandate of with squared rule cannot be procedural
state teaching the In Under Chambers, and Re Oliver. Washington in of the cases, convicted violation of those Taliaferro was Fourteenth Amendments. Sixth and have only Taliaferro could which witness fact that Rich was 5. The which, example, has a defendant for with situations called contrasts called numerous seeks witnesses, presented defense and a substantial has Davis, 639 "needlessly States v. United cumulative” evidence.
to introduce
White,
1981).
(5th
Other
specific
courts have held that
applications of
preclusion
sanctions violate
defendant’s constitutional
rights. The United States Court of Appeals for the Second
Circuit,
example,
held that
is
unconstitutional
to
decision);
185,
(1981);
Bright,
1981);
tactical
v.
343,
v.
State
229 Kan.
P.2d
623
917
State
(La.
Bias,
Edgerly,
337,
"While a defendant’s absolute, interest a state’s behalf is not be scrutinized may be called will restricting who 'truth maximum regard, closely. ... this limitation, is the arbitrary rather than gathering,’ grant of continuance . Given that goal... favored to the any prejudice minimize to would have served notice, the formal the lack of resulting from state to to exercise discretion the trial court refusal of psychiatrist] call defendant] [his to [the allow then, defense, was a violation insanity present rights.” amendment of Ronson’s sixth Dis- United States opinion of the
See also the well-reasoned case, Commissioner Ronson v. trict Court in the same (S.D.N.Y. 1978). Correction, F.Supp. 97 New the District of United District Court for States prisoner was corpus where a Jersey issued a writ of habeas permitted a trial in which he was convicted after Mulcahy, F.Supp. testimony. Hackett v. introduce alibi 1980). (D.N.J. defendant’s Although "technical,” was, majority suggests, noncompliance as the Instead, the court that factor. the court did not focus on right present witnesses began by noting "[t]he by the Sixth right guaranteed one’s defense is a fundamental facts, the reviewing Id. at 1335. After Amendment.” petitioner that "there is no indication court concluded alibi testi- right waived his constitutional permit *25 refusal to mony of . . . The trial court’s witnesses case visited petitioner’s introduction of evidence crucial to 406 punishment on . . . deprived [him].
terrible He was right to defend himself.” Id. at 1340. Supreme Court of Washington has indicated that
excluding defense witnesses as a sanction for noncompliance with a notice requirement may In be unconstitutional. State Martin, v. 180, 187, (1931), 165 Wash. 4 P.2d 880 court stated:
"If, in
this,
such a case as
the state should claim
surprise [resulting from noncompliance], might
become the
duty
court,
not to declare that the
appellant’s
received,
evidence should not be
but
that the state should have a
opportunity
reasonable
prepare
against
itself
surprise;
the constitu-
tion, by guaranteeing an
person
right
accused
defend himself and to
compel
attendance of wit-
nesses
the court’s
process, necessarily
own
gives
right
him the
attending
to have
witnesses heard.”
Many other
recognized
cases have
the existence of
constitutional problems in applying
preclusion
sanction
for violation of
See,
provisions.
e.g.,
notice-of-alibi
United
(9th
Barron,
752,
1978);
States v.
575 F.2d
757 n. 5
Cir.
(M.D.
v.
244,
Brown
459
Wainwright,
F.Supp.
247
Fla.
1978);People
Jackson,
399,
Mich.App. 395,
v.
71
249 N.W.2d
(1976);
132
Edgerly,
337, 343,
Commonwealth v.
372 Mass.
(1977);
Ct.,
1289
State
rel.
361 N.E.2d
ex
Sikora v. District
241,
897,
(1969);
154
P.2d
Morales,
Mont.
462
903
v.
People
262, 269-270,
25,
37 N.Y.2d
372 N.Y.S.2d
held that Amendment’s discussed, clause, although, previously self-incrimination as the Court excluding ruling reserved Nevertheless, on the sanction defendant’s evidence. provisions two states have declared notice-of-alibi violative of against Alaska, privileges self-incrimination. state constitutional provision Supreme Court held that the state’s notice of alibi violated that against privilege self-incrimination to the state’s constitutional extent that
407 the left have cases above-cited While some of the a has involved undecided, none of them constitutional issue case, the where present in the as that as extreme situation witness, thus precluding defendant’s judge excluded the finding defense, without any presenting the from defendant any deliberate, and where comply was that the failure to admittedly curable to disadvantage prosecution the a continuance. that position taken the addition, have
In commentators violating witnesses, for as a sanction of the defense exclusion problems. constitutional discovery presents serious a that concludes Clinton, example, Professor the to accused sanction preclusion the "applying The constitutionally suspect. in be most cases would provision required notice of intent to an alibi more than mere notice, beyond simple the state not com- defense. The court held that pel witnesses are could his of defense such as who defendant to disclose details his v. and not the crime Scott where he was if he was scene. 1974). (Alaska Court, Superior Similarly, 18 in v. P.2d 774 Allen 519 (1976), Supreme Rptr. 67 Court Cal.3d 134 Cal. 557 P.2d of held the self-incrimination clause of constitution California that prosecution by prohibits compelled pretrial disclosure to the that state " might 'conceivably lighten prosecution’s if the disclosure defendant ” proving in chief.’ burden of its case decision, judi- Supreme In struck down a an earlier the California Court cially-created requirement, thereby rejecting the efforts of notice of alibi requirement. some Reynolds courts in state to a common-lawnotice lower create Superior Court, Rptr. 437, 45 117 Cal. 528 P.2d Cal.3d (1974). explaining to create or sanction notice of alibi its hesitation measures, problems: gave particular weight potential the court to constitutional closely "[Clomplex questions of state federal balanced and presented by constitutional law are a notice-of-alibi order.... inappropriate [0]ur decision it would be for us declare judicially sensitivity notice-of-alibi rule does arise our to the power Legisla- constraints on the the courts or constitutional require a defendant in a criminal case to to the ture prosecution intangible reveal tangible normal course of trial or advance Id, or other material.” trial-related evidence at 837. Maryland Rights provision guar- The Declaration also contains a against anteeing "That no man criminal right self-incrimination. citizens the Article states: ought compelled give against evidence to be himself in a This has ruled on the issue of case.” Court never whether Rule 741 compels give may evidence partially criminal invalid because defendants to be contrary against parties themselves Article 22. Because the issue, case, express us it is not before in this no raised
have not the matter. views on
application preclusion sanction ... should survive challenge only constitutional when the evi- very excluded is important dence to the or, case, accused in the usual where other means of effectuating the state’s practically interest are Clinton, unavailable.” Right to Present a An Emergent Defense: Constitutional Guarantee (1976). Trials, Criminal 9 Ind. L. Rev. *27 Westen, See also Clause, The Compulsory Process 73 Mich. — 71, 137-138
L. (1974); Note, Rev. The Preclusion Sanction A Violation of the Right Defense, Constitutional a to Present (1972). 81 Yale L.J. 1342 generally Note, See Prosecutorial Discovery Proposed Under Rule 85 Harv. L. Rev.
(1972). Association, The American Bar II ABA Standards for (2d (a) Justice, Criminal 1980), § rejects 11-4.7 ed. the exclu sion policy sanction both and constitutional grounds.
If excluding a criminal defendant’s witness for a violation of a discovery rule ever infringes upon the Sixth Amend- ment, it so present does in the only case.' The defendant’s alibi, defense was and the only excluded witness was his alibi witness. The prosecution’s upon case was based the witness, a single identification had ini- who photograph someone else as tially identified the crime, perpetrator informant, a police who was only who had a jury criminal record. The issue before the have two telling should been decide which of witnesses — the truth prosecution’s identification witness or the But, defendant’s alibi judge’s witness. because of the trial ruling excluding defendant’s as a evidence sanction violating discovery jury only a prosecu- heard reiterate, discovery tion’s witness. To the violation of the rule admittedly was not deliberate and was curable circumstances, short Under continuance. these defen- simply dant did not receive fair trial. majority position pro- takes the that the decision
hibit the testifying defendant’s witness from was within "the discretion” of the trial if my court. view this is true Amend- Sixth abridge "discretion” to has a trial court the con- I reverse would a defense. ment right a new trial. Taliaferro and award viction me to state have authorized Cole and Davidson
Judges herein. expressed views with the they concur