finding it "strange to hear defense counsel make these claims [of insufficient time to prepare] while not seeking a continuance"
How later courts described this case
- finding it "strange to hear defense counsel make these claims [of insufficient time to prepare] while not seeking a continuance"
- "At the conclusion of the suppression hearing, the trial court entered its order suppressing all statements made pri- or to the giving of Miranda warnings, but did not specifically articulate the reasons for overruling appellant’s motion to suppress statements made while incarcerated. Implicit in the trial court’s silence and admission of the statements at trial is the conclusion that the appellant’s testimony regarding the alleged requests for an attorney lacked credibility and that the statements were voluntarily given. While disposing of such a motion in this manner is not as clear as making definitive findings based on the evidence adduced at the suppression hearing, there is nothing inherently improper in so doing.”
- defendant robbed a bank, kidnapped and killed a teller
Written by the judges who cited it.
The opinion
BARDGETT, Chief Justice,
dissenting.
I respectfully dissent.
The final point in this appeal as stated in the principal opinion is “that the trial court erred and abused its discretion in not excluding testimony relating to the contents of some of appellant’s statements, the discovery of which had been sought under Rule 25.32, now Rule 25.05.” As demonstrated by the principal opinion, the state failed to comply with the defendant’s request for discovery made pursuant to the rules of this Court with respect to certain statements attributable to the defendant. Those statements attributable. to the defendant were that he, the defendant, lay in wait behind the bank deciding how he would rob it and how he would kill the teller, and in subsequently killing her he shot her once in the stomach and twice in the head “so she wouldn’t suffer.”
As mentioned in the principal opinion, the state admits having no excuse for its failure to disclose the existence of the challenged statements attributable to the defendant and points out that the duty to disclose is a continuing one.
The principal opinion, in resolving this point, demonstrates that there was evidence, other than these statements, upon which a jury could find the defendant guilty of capital murder. I agree that there was substantial evidence from which the jury could find the elements submitted as part of the capital-murder instruction. Nevertheless, it is a rare case where the prosecution has direct evidence that the defendant “intended to take the life of a particular person” and that the defendant considered taking the life of that person and reflected upon it fully and coolly before doing so. The statements attributable to the defendant and which were not disclosed by the state constituted direct evidence of these two elements, the last of which is peculiar to capital murder.
It is not, in my opinion, a sufficient answer to this point to simply determine that the jury could have found the defendant guilty of capital murder without the disputed evidence. The disputed evidence in this case was just about as powerful as any evidence could be upon the element of deliberation which is a required element of capital murder but not of first-degree murder (felony murder) nor second-degree murder. It is virtually impossible for an attorney during the course of a trial, when confronted with this type of evidence, to immediately and spontaneously demonstrate the manner in which his client would be prejudiced if the disputed evidence is introduced. *954 Obviously, the state thought it was important evidence, as do I. The defendant’s attorney, had he known of this, evidence before hand, could have deposed the person to whom the statements were allegedly made and found out more about the situation before being confronted with it at trial.
The prejudice in this case is deprivation of the defendant of the opportunity to adequately prepare for trial, which deprivation was directly caused by the state’s inexcusable violation of this Court’s discovery rules and violation of the continuing duty to make discovery.
Whether or not the jury would have found the defendant guilty of capital murder absence this particular evidence is, in my opinion, highly problematical. I agree that it is highly probable that the defendant would have been convicted of first-degree (felony) murder as having committed a homicide during the course of the underlying felony. That offense does not require the deliberation with respect to taking the life of another person nor, afortiori, does it necessarily require an intent to kill. The evidence that the defendant lay in wait and reflected upon killing the teller before doing so is not cumulative to other similar or other powerful evidence in this case.
The court should have excluded this evidence or offered the defendant a mistrial so as to permit discovery to take place and the trial to begin anew or, if feasible, to have recessed long enough to have allowed the deposition of the person who heard the statements made to be taken. In my opinion, this Court ought not to persist in excusing direct violations of discovery in criminal cases. To do so continuously permits precisely that which the discovery rules were designed to eliminate, surprises at trial.
For the foregoing reasons I dissent and believe the case should be reversed and remanded for a new trial.