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State v. Harris2/20/1998
oduction of such material. The defendant also contends the court erred in allowing Mr. Churchman to refer to the particular weapon and bullets involved in this case. In brief, the defendant mainly contends that prior to trial he should have had the opportunity to examine the basis from which Mr. Churchman reached his conclusion. The defendant argues that even though Mr. Churchman did not testify about the particular tests he conducted, his testimony was based on ballistics testing of a gun similar to that used in the present offense, and, in effect, the state got the evidence in through the "back door." The defendant in brief contends that Mr. Churchman's testimony was not impeachment evidence because the state's witnesses did not testify at trial regarding how far the gun was from the victim. The defendant contends that he had no opportunity to test the basis for Mr. Churchman's Conclusion because the court did not admit the test results into evidence. During Mr. Churchman's entire testimony, according to the defense counsel's brief, the revolver which had been introduced into evidence was on the witness stand in front of Mr. Churchman with the ammunition.
The defense has the right, upon motion, to inspect and copy reports of scientific tests made in connection with the case that are in the possession of the district attorney and intended for use at trial. LSA-Cr.P. art. 719. The state has a continuing duty to disclose additional evidence which it discovers or decides to use at trial. LSA-C.Cr.P. art. 729.3. However, the state need not disclose information it does not possess. State, v. Williams, 448 So.2d 659 (La. 1984). When a party fails to comply with a discovery order, the court may grant a continuance, order a mistrial on the defendant's motion, or exclude the withheld evidence, among other sanctions. LSA-C.Cr.P. art. 729.5. Even assuming the state's discovery responses were deficient, declaration of a mistrial is not required in all cases of discovery violations. See State v. Selvage, 93-1435 (La. App. 1 Cir. 10/7/94); 644 So.2d 745, writ denied, 94-2744 (La. 3/10/95); 650 So.2d 1174. The failure of the state to comply with the discovery procedure will not automatically command reversal. State v. Williams, 448 So.2d at 664. The defendant must show actual prejudice resulted from the discovery violation. State v. Selvage, 93-1435, p. 6; 644 So.2d at 750.
Prior to trial, the public defender's office filed a motion for discovery in which it asked, "Does the state have within its possession, custody, control, or knowledge any results or reports, physical or mental examinations, scientific tests or experiments made in connection with or material to this particular case which are intended for use at trial?" The next question asked the state to furnish a copy to the defendant.
On the third day of trial, the prosecutor informed the court that, after testimony on the second day of trial by the defendant's family members which was inconsistent with their taped statements, he asked Mr. Churchman to perform some ballistics tests on a weapon similar to that used in the offense. Mr. Churchman performed the tests on the morning of the third day of trial. The tests indicated that the weapon would have been fired three to four inches away from the victim. The prosecutor informed the court that he had no reports from Mr. Churchman, just the test fires. The prosecutor contended the tests constituted impeachment evidence. The defense contended that it had filed discovery motions seeking test results prior to trial, that it was completely surprised, and that it did not have a report by the expert, or an opportunity to review the results or to have its own expert look at the tests. The defense argued
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