The opinion
Terry Crabtree, Judge, dissenting. The majority has reversed this criminal case holding that the trial court erred in denying appellant’s motion for a continuance based on a discovery violation and that the trial court erred in permitting the State to call a witness in its case-in-chief who was not disclosed to appellant in advance of trial. I cannot agree to reverse based on the discovery violation because the record does not demonstrate any prejudice resulting from the State’s tardiness. I also do not agree that reversal is warranted based on the non-disclosure of the witness. This witness’s testimony is properly characterized as rebuttal testimony, and any error that flowed from allowing this witness to testify in the State’s case-in-chief was harmless. Therefore, I respectfully dissent.
Appellant was charged with first-degree stalking, arson, and eleven counts of violating a protective order. His case was set for trial on Wednesday, June 4, 2003. Late on the afternoon of Monday, June 2, the State delivered to appellant’s counsel’s office a handwritten report from the fire inspector, a copy of the recorded statement made by appellant the night of his arrest, and copies of appellant’s own cellular-phone billing statements. 1 The next day, appellant filed a motion for a continuance, and the court conducted a hearing on the motion that afternoon. Appellant’s chief complaint concerned the billing statements. Counsel argued that she believed the State was going to introduce the phone records specifying the dates on which phone calls were made, and she argued that she would “not have time to cross-reference to see if the dates were accurate” or to consult with appellant about the records. Counsel further represented that she did not exactly know what was in the packet, as she had merely opened it and had seen that it contained phone records. The court expressed the desire to see what the packet contained, but because counsel had not brought the materials to the hearing, the court inquired as to whether it consisted of “three pages or a hundred.” Appellant responded that there were twenty pages. The trial court noted that appellant was entitled to receive materials in time to make beneficial use of them, but instead of granting a continuance, the court stated that it would entertain a motion to exclude any evidence that was turned over late and resulted in prejudice. The court ruled:
I’ll leave the case on the docket. If — if something that you received Monday or Tuesday of this week, if you want to make a motion on it at the time and I determine that it is something that prejudiced your preparation because you received it so late that you could not properly prepare for it, then I may exclude that evidence. That’s, we’ll just have to take it up at the time. If they seek to introduce something and you say, “I got it on Tuesday and Wednesday and I could not prepare,” and you demonstrate that it prejudices your client’s defense, then I will consider not allowing them to use it at that time.
Appellant contends on appeal that the trial court should have granted a continuance. In making this argument, appellant complains only about the State’s tardiness in turning over the fire inspector’s report and the phone records. He makes no argument with regard to the recorded statement he gave to the police. By way of prejudice, appellant states baldly, without elaboration, that he was “prejudiced by his trial counsel’s lack of time to prepare.” 2
When a party fails to comply with a discovery rule, the court may exercise any of the following options: order that party to permit the discovery or inspection of materials not previously disclosed; grant a continuance; prohibit the party from introducing the material; or enter another order that the court deems appropriate under the circumstances. Hicks v. State, 340 Ark. 605 , 12 S.W.3d 219 (2000). It is within the trial court’s discretion which sanction to employ. Id. A prosecutorial discovery violation does not automaticahy result in reversal. McNeese v. State, 326 Ark. 787 , 935 S.W.2d 246 (1996). When a discovery violation occurs, the error is reversible only when the violation results in prejudice to the appellant. Johnson v. State, 333 Ark. 673 , 972 S.W.2d 935 (1998). When the prosecutor fails to provide information, the burden is on the appellant to demonstrate that the omission was sufficient to undermine confidence in the outcome of the trial. Barnes v. State, 346 Ark. 91 , 55 S.W.3d 271 (2001).
In this case, the trial court chose the option of excluding evidence upon a showing of prejudice. I see nothing in this record to indicate that this approach was not adequate to ensure the fairness of trial. The majority concludes otherwise, describing the materials as “voluminous” and “crucial.” In reality, however, the materials were neither, and the record demonstrates not a smidgeon of resulting prejudice. And, contrary to the majority’s assertion, appellant has never and does not now make any claim that his defense strategy was altered on account of these materials.
When the phone records are examined, one learns that they consist of twenty-one pages and include appellant’s cellular phone bills for the months of June, July, August, and September of 2002. Only eleven of those pages, however, list the calls that were placed from appellant’s phone. It is significant that these were appellant’s own phone bills, which he had full access to and possession of even without the State providing them to him. And, it is clear from appellant’s testimony at trial that he knew in advance that the State had subpoenaed his records. Indeed, appellant testified that, after learning of the State’s subpoena, he examined his phone bill and identified two calls that he had mistakenly made to Ms. Lewellen, and he said that he informed the police of this fact. Although the trial court left it open for appellant to object to the admission of this evidence should there have been insufficient time to prepare, appellant’s phone records were admitted into evidence without objection. As a consequence, I find it impossible to conclude that the State’s delay in delivering appellant’s phone bills caused any prejudice. Moreover, the State’s failure to disclose information already in the possession of a defendant does not result in reversible error. See Johninson v. State, 317 Ark. 431 , 878 S.W.2d 727 (1994).
With regard to the fire inspector’s report, it was not introduced into evidence, and because appellant failed to proffer the report, this court cannot accurately gauge whether the State’s delay caused any prejudice to appellant. A review of the record, however, reveals no claim by appellant that he was in any way surprised by the contents of the report. A review of appellant’s cross-examination of the fire chief, who was on the State’s witness list, does not show that appellant suffered from any lack of preparation time. In fact, appellant also called the fire chief as a defense witness. Appellant alleges in his brief that he was prejudiced, but he makes no definite statement as to how he was prejudiced. However, prejudice must be shown, not merely alleged. Barnes v. State, supra. Because appellant has not demonstrated any prejudice, there is no cause to reverse.
The record also reflects no prejudice resulting from the State’s late delivery of the tape recording of appellant’s statement. Although appellant presents no argument on appeal with regard to the statement, I feel it necessary to discuss this evidence in light of the majority’s notion to consider the “totality of the circumstances.” Appellant’s statement was brief, amounting to little more than a denial that he committed the arson. The content of the statement was fairly summarized in an affidavit that appellant had access to well before trial. More importantly, appellant raised no objection to the officer’s testimony recounting the statement, even though the trial court had indicated that it would exclude such evidence if prejudice were shown.
In sum, the record in this case does not support the majority’s description of the discovery violation as a “last-minute dumping of voluminous and crucial discovery.” Also, there is nothing in this record showing that the State’s delay in turning over these materials resulted in any prejudice to the appellant. Although the State’s failure to comply with discovery in a more timely fashion should not be lightly dismissed, it is not enough for there to be a discovery violation. Reversal is merited only when the State’s tardiness results in discernable prejudice to the appellant. Because no hint of prejudice has been shown, the State’s discovery violation does not warrant reversal in this case, and the majority errs in reaching a contrary conclusion.
The majority is also mistaken by reversing the trial court’s decision allowing the State to present the testimony of James Heath in its case-in-chief. This issue revolves around the officers’ testimony, which appellant was aware of before trial, that the officers detected no odor of gasoline when they first responded to the fire, but that the odor of gasoline was prominent when they later returned to the scene. After speaking with one of the officers after he had been interviewed by appellant’s counsel, the prosecution anticipated that appellant might claim that Ms. Lewellen had poured gasoline in the area after the officers completed their initial investigation. Therefore, the prosecution procured Mr. Heath as a witness for the purpose of presenting his testimony in rebuttal, should appellant actually claim that Ms. Lewellen was responsible for the presence of the gasoline. As predicted, appellant’s counsel did raise this theory at trial. In her opening statement, which began by portraying Ms. Lewellen as a woman scorned who had immediately blamed appellant for starting the fire when the officers arrived, counsel stated:
[The officers] got a call to go back out there and when they went back out there the smell of gasoline was so strong, there was gasoline all over the side of that tráiler, all over the side of Kim Lewellen’s trailer. They were looking for accelerants. They were looking for gasoline, didn’t see any gasoline out there when they first went out. But when they got called back out there Kim Lewellen wasn’t there, her daughter wasn’t there. Kim — Sandy’s sister wasn’t there that was there previously. Everybody was gone. But there was gasoline pulled all over the trailer, something they didn’t see the first time. They couldn’t find any trace of accelerants the first time they went out there. It was just another attempt of a scorned woman trying to get even and trying to put him in jail because if she couldn’t have Mike then nobody would.
Appellant also emphasized on cross-examination of the officers that they detected the odor of gasoline not the first, but only the second time they were at the scene. This theory was also mentioned by appellant’s counsel in her closing argument.lt is thus clear that appellant was insinuating that Ms. Lewellen had poured gasoline in the area in an effort to further implicate appellant in the arson by making it appear as if gasoline had been used to ignite the fires.
Mr. Heath works for a towing company, and he had towed the burned vehicles. He testified that gasoline had poured out from the gas lines of the vehicles and onto the ground as he hoisted them up them from the rear to place on a flat-bed truck.
The issue raised on appeal is that the trial court erred in allowing the State to offer Heath’s testimony in its case-in-chief because the State had not disclosed him as a witness before trial. The State is required, upon timely request, to disclose to the defendant the names and addresses of the persons it intends to call as witnesses at trial. Ark. R. Crim. P. 17.1(a)(i). However, the State is not required to disclose rebuttal witnesses during discovery. Kincannon v. State, 85 Ark. App. 297 , 151 S.W.3d 8 (2004). The rationale is that, until the defense’s case has been presented, the State cannot know of any witnesses needed for rebuttal. Id. Rebuttal evidence is evidence that is offered in reply to new matters, even if it overlaps with the evidence presented in the State’s case in chief, as long as the testimony is responsive to evidence presented by the defense. Id.
In this case, the State anticipated, but could not be certain, that appellant would claim that Ms. Lewellen was responsible for gasoline being spread about her home after the fire. The testimony of Mr. Heath was designed to account for the presence of the gasoline that was subsequently detected, should appellant make an issue of it at trial. Appellant did advance this theory, and Heath’s testimony was responsive to appellant’s suggestion that Ms. Lewel-len intentionally poured gas in the area. Therefore, Heath’s testimony is properly characterized as rebuttal testimony, which the State was not obliged to disclose in advance of trial. Since this was rebuttal testimony, however, it was not proper for the State to introduce it in its case-in-chief. However, evidence that it presented out-of-turn can be harmless. Here, appellant made the error harmless by advancing his theory impugning Ms. Lewellen in his opening statement and in his cross-examination of the officers. Chenault v. State, 253 Ark. 144 , 484 S.W.2d 887 (1972).
I also perceive no unfair prejudice to appellant in that he later offered evidence countering Mr. Heath’s testimony and supporting his theory that Ms. Lewellen had poured gasoline on the trailer. When appellant called Richard Blair, the fire chief, as a witness for the defense, he elicited testimony that the firemen had sprayed water on the trailer as a precautionary measure. In fight of Mr. Heath’s testimony that gasoline leaked from the vehicles onto the ground, the testimony of Blair served to support the inference that any gasoline found on the trailer was put there after the fire. In addition, when Blair had testified on behalf of the State, he stated that, if gasoline is used to start a fire, he would not expect to find evidence of it afterwards because gasoline burns fairly quickly and thoroughly. In short, appellant’s suggestion that Ms. Lewellen was responsible for the after-the-fact presence of gasoline remained viable despite Heath’s testimony. Because any error resulting from Mr. Heath’s testimony was harmless and nonprejudicial, I dissent from reversing appellant’s arson conviction on this basis.
I would affirm.
On the morning of June 2, the State had also provided the defense with a certified transcript of appellant’s bond hearing. An uncertified transcript of this hearing had already been been provided; the only difference between the two transcripts was that the latter bore the court reporter’s certificate.
Appellant is represented by different counsel on appeal.