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State v. Thomas11/16/1999
witnesses was the victim, Phillips, who was then living in California and had been excused following his testimony the previous day.
The court granted the defense motion to reopen to the extent of recalling Thomas for further testimony, but the court refused to allow Ms. Thomas to testify because the prosecutor had relied upon the defense assertion that she would not be a witness. The court found that the defense's sudden change of position had "put the State in a bind" concerning rebuttal witnesses and that there was "enough prejudice to the State to deny the motion to reopen to allow Anna Marie to testify here."
Appellant was found guilty and was sentenced to a determinate term of forty years' imprisonment, including a fifteen-year enhancement for the use of a firearm in the commission of a felony. On appeal, Thomas argues that the trial court abused its discretion by refusing to allow the defense to call Ms. Thomas as a witness and by imposing an excessive sentence.
ANALYSIS A. Exclusion of Ms. Thomas' Testimony
We review the district court's refusal to allow Ms. Thomas to testify, as a sanction for a discovery violation, under an abuse of discretion standard. State v. Harris, ____ Idaho ____, 979 P.2d 1201, 1205 (1999); State v. Lamphere, 130 Idaho 630, 633, 945 P.2d 1, 4 (1997). Thomas argues that the district court abused its discretion by considering only the prejudice to the State and failing to weigh Thomas' right to a fair trial or to consider less severe remedies for the lack of pretrial disclosure.
Under Idaho Criminal Rule 16(c)(3), upon written request by the prosecuting attorney, a defendant must furnish a list of the names and addresses of witnesses the defendant intends to call at trial. This list is to be furnished within fourteen days of service of the prosecutor's request. I.C.R. 16(e)(1). The trial court is authorized to impose sanctions for a failure to comply. I.C.R. 16(e)(2).
When a defendant asks to present evidence at trial that was not timely disclosed to the prosecution, the trial court must consider whether the State would be prejudiced from the late disclosure if the evidence were admitted and weigh that prejudice against the defendant's right to a fair trial. State v. Miller, Docket No. 25261 (Sept. 28, 1999); Harris, supra; Lamphere, supra; State v. Stradley, 127 Idaho 203, 899 P.2d 416 (1995); State v. Winson, 129 Idaho 298, 923 P.2d 1005 (Ct. App. 1996). We have also held that, before excluding the evidence, the trial court should consider less severe remedies for the untimely disclosure, such as a short continuance, a mistrial, or sanctions against defense counsel. Id. at 303, 923 P.2d at 1010. See also Harris, ____ Idaho at ____, 979 P.2d at 1204.
In the present case, we are unpersuaded by Thomas' argument that the district court inadequately considered his right to a fair trial or alternative sanctions in performing the balancing test, for Thomas made no showing that the excluded testimony would have been relevant or helpful to the defense in any significant way. Proffered evidence must be relevant and possess some probative value to exculpate the defendant or to rebut the State's case before the defendant's request to present the evidence can have any weight to be balanced against prejudice to the State. Here, the defense presented no offer of proof or description of the proposed testimony that would indicate its relevance; rather, defense counsel merely described, in the vaguest terms, the general subject matter that would be addressed by the testimony. He stated that Ms. Thomas would impeach Phillips' testimony about what happened on the night of the offense, but Ms. Thomas was not prese
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