State v. Birdsall
| Decision Date | 16 April 1975 |
| Docket Number | CA-CIV,No. 2,2 |
| Citation | 533 P.2d 1191,23 Ariz.App. 454 |
| Parties | The STATE of Arizona, Petitioner, v. Ben C. BIRDSALL, Judge of the Superior Court, Pima County, Arizona, Respondent; and Gary Robert DAWKINS, Real Party in Interest. 1854. |
| Court | Arizona Court of Appeals |
This proceeding was instituted by the state to challenge an order of the respondent judge prohibiting the state from calling two individuals as witnessses in a pending criminal trial. One of these witnesses was the victim of the charged offenses and the other an identification witness. Since we are of the opinion that appellate intervention is warranted, we assume jurisdiction.
The real party in interest, defendant below, was indicted for burglary and grand theft, or alternatively, receiving stolen property, and plead not guilty to the charges. The state was directed to comply with Rule 15.1, Rules of Criminal Procedure, 17 A.R.S., by January 3, 1975. The state, on January 3, made available all reports and statements made by persons involved in the investigation concerning the charges. The reports and statements contained the name of Kathy E. Hahn, her address and telephone number, and certain facts indicating that she was the 'victim.' The reports also contained the name of Louise English, her address and telephone number, and that she had seen Mr. Dawkins loading the stolen property into the car he had been driving. The transcript of the proceedings before the grand jury also indicated these facts about the two women and defense counsel was furnished a copy of the transcript.
The Rule 15 disclosure statement furnished by the state contained the names and addresses of the state's witnesses and the names of Kathy Hahn and Louise English were not included. Trial was set for March 13, 1975, and prior to selection of the jury on that date, defense counsel moved for an order prohibiting the state from calling either Kathy Hahn or Louise English as witnesses. The sole basis for the motion for preclusion was the fact that the names of the two women were not listed as witnesses. Counsel for the state pointed out to the court that the testimony of these two witnesses would consist of statements which already appeared in police officer reports furnished to defense counsel. In other words, his position was their testimony would not be other than what defense counsel had received information about. Defense counsel did not point out in any way how the fact that these witnesses' names were not listed prejudiced his case. The prosecutor expressed his willingness to agree to a continuance if defense counsel felt he needed more time. He also pointed out to the court that both witnesses were key witnesses. Defense counsel, however, insisted that preclusion of the witnesses' testimony was the only appropriate sanction. The respondent court agreed and granted the motion for preclusion.
The state then asked the court to reconsider. The court allowed testimony concerning the form used by the office of the Pima County Attorney which included a list of witnesses. The testimony was to the effect that such form was not required by the Rules of Criminal Procedure and that the practice in other counties was simply to make available police reports. The testimony revealed an absence of bad faith or willfulness on the part of the prosecution and there was no showing to the contrary. The court declined to alter its previous ruling.
Rule 15.1(a)(1) requires the prosecutor to make available to the defendant 'the names and addresses of all persons whom the prosecutor will call as witnesses in the case-in-chief together with their relevant written or recorded statements.' The respondent court construed the rule to mean 'a list' of the names and addresses. 1
Rule 15.7 provides:
'If at any...
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State v. Salazar
...Ariz. 152, 167, 800 P.2d 1260, 1275 (1990), cert. denied, 500 U.S. 929, 111 S.Ct. 2044, 114 L.Ed.2d 129 (1991). In State v. Birdsall, 23 Ariz.App. 454, 533 P.2d 1191 (1975), the court held that, absent a showing of prejudice, the trial court erred in excluding testimony of a state's witness......
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Chisler v. State
...at trial and merits of the case as little as possible." W. LaFave & J. Israel, Criminal Procedure at 504 (quoting State v. Birdsall, 23 Ariz.App. 454, 533 P.2d 1191 (1975)). IV The defendant insists that her motion for judgment of acquittal should have been granted because the State present......
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...of Criminal Procedure are designed to implement, and not to impede, the fair and speedy determination of cases. See State v. Birdsall, 23 Ariz.App. 454, 533 P.2d 1191 (1975). Prohibiting the calling of a witness should be invoked only in those cases where other less stringent sanctions are ......
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...lack of good faith could justifiably be inferred. In State v. Fenton, 21 Ariz.App. 193, 517 P.2d 1086 (1974), and State v. Birdsall, 23 Ariz.App. 454, 533 P.2d 1191 (1975), we recognized that the trial court has broad discretion in determining what sanction, if any, to impose. We find no ab......