State v. Billington , 86 N.M. 44 ( 1974 )

OPINION

SUTIN, Judge.

Defendant was convicted of perjury in violation of § 40A-25-1, N.M.S.A. 1953 \f¿á Repl. Vol. 6). Defendant appeals. We reverse.

(1) The trial court abused its discretion in denying defendant a continuance.

On November 10, 1972, defendant filed a motion for disclosure of names of witnesses the State intended to call at trial pursuant to Rule 27 (b) of the Rules of Criminal Procedure [§ 41-23-27(b), N.M.S.A. 1953 (2d Repl. Vol. 6, 1973 Supp.)]. On January 5, 1973, the State voluntarily furnished a list of witnesses which did not include an important witness whose testimony was critical, not technical or cumulative.

On March 21, 1973, at a hearing before the trial court, defendant’s attorney stated:

I ass'ume no other witnesses since January 3rd have been added to this list and under the circumstances, I’m satisfied.

The State: That’s correct, Your Honor.

The Court: Well, if they haven’t been added, they’re not going to get added if they don’t do it and advise you about it, so you are that far ahead. All right. * * * [W]e will proceed to trial then tomorrow on this case * * *

The next day, on March 22, 1973, out of the presence of the jury panel, the State moved to add the name of an important witness which the State had disclosed to defendant’s attorney by telephone the day before. The defendant objected. Over objection, the trial court allowed defendant’s attorney to question the State’s witness for a few minutes. Thereafter, defendant moved the trial court “for a continuance until such time as is needed to obtain a deposition of the witness * The motion was overruled. The trial court abused its discretion, and defend»*, was entitled to a continuance as a matter of law.

Rule 30 [§ 41-23-30, N.M.S.A. 1953 (2d Repl. Vol. 6, 1973 Supp.)] reads as follows :

If, subsequent to compliance with a request or order for discovery under Rules 27 or 28 [41-23-27 or 41-23-28], and prior to or during trial, a party discovers additional material or witnesses which he would have been under a duty to produce or disclose at the time of such previous compliance if it were then known to the party, he shall promptly give written notice to the other party or the party’s attorney of the existence of the additional material or witnesses. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from calling a witness not disclosed, or introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate under the circumstances. [Emphasis added].

This rule is the same as Rule 16(g) of the Federal Rules of Criminal Procedure. 18 U.S.C.A. Rule 16(g).

Rule 29, supra, allows the defendant to take the deposition of any person. This right of discovery by deposition would have aided the defense.

The American Bar Association’s Advisory Committee on Pretrial Proceedings’ Standards Relating to Discovery and Procedure Before Trial, § 2.1(a) (i) provides that the prosecuting attorney shall disclose to defense counsel “the names and addresses of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial * * * * ” United States v. Leichtfuss, 331 F.Supp. 723, 733 (N.D.Ill.1971).

The Commentary, p. 56, says:

This subsection not only facilitates plea discussions and agreements but also goes to the heart of the general proposition that defense counsel must be permitted to prepare adequately to cross-examine the witnesses against the accused and otherwise test their credibility, as well as to produce other evidence relevant to the facts in issue. See §§ 1.1 (a) (iii), 1.2. It has been suggested that the right to advance notice of witnesses against one and their prior statements may be required by the sixth amendment and by due process. Palermo v. United States, 360 U.S. 343, 362-66 [79 S.Ct. 1217, 3 L. Ed.2d 1287] (1959); see Jencks v. United States, 353 U.S. 657 [77 S.Ct. 1007, 1 L.Ed.2d 1103] (1957); Note, 20 Okla.L.Rev. 422 (1967).

See, State v. Jones, 209 Kan. 526, 498 P.2d 65 (1972).

The defendant is entitled to a fair trial. One of the purposes of a deposition is to permit the defendant to seek avenues of impeachment of the State’s witness on cross-examination during trial. Rule 29 (n) (5), supra.

The State’s witness had testified at a prior trial in which the defendant was a witness. The defendant had no reason to prepare cross-examination of this State’s witness because his name was not disclosed. Even if defendant was familiar with this witness’ trial testimony, defendant had the right to take the deposition of this witness to determine whether his prior testimony was true, to test his credibility, to seek impeachment, to produce other evidence, to seek discovery, all for the orderly administration of criminal procedures prior to trial. Rule 30, supra, was violated.

If, after the deposition is taken, the defendant believes that he will be proven guilty, he may enter into plea bargaining or plead guilty to avoid the necessity and expense of a jury trial. United States v. Isa, 413 F.2d 244, 248 (7th Cir. 1969).

District attorneys should not have the right to “inadvertently” overlook disclosing important witnesses until the day before trial, the morning of trial, or during trial.

State v. Maes, 81 N.M 550, 469 P.2d 529 (Ct.App.1970) quoted the following with approval:

When it is made to appear that testimony of the witness is such that it cannot be reasonably anticipated, postponement or continuance of the hearing is available to the defendant to meet it and if application therefor is denied, prejudice being shown, reversal will follow.

Defendant was entitled to a continuance as a matter of law. See, State v. Sibold, 83 N.M 678, 496 P.2d 738 (Ct.App.1972); United States v. Kasouris, 474 F.2d 689 (5th Cir. 1973); Sheridan v. State, 258 So. 2d 43 (Fla.App.1971).

The trial court abused its discretion. State v. Hargrove, 81 N.M. 145, 464 P.2d 564 (Ct.App.1970); United States v. Isa, supra. The error was so prejudicial to the substantial rights of the defendant as to necessitate a reversal. United States v. Kasouris, supra. “In our adversary system, it is enough for judges to judge. The determination of what may be useful to the defense can properly and effectively be made only by an advocate.” Dennis v. United States, 384 U.S. 855, 875, 86 S.Ct. 1840, 1851, 16 L.Ed.2d 973 (1966).

(2) Defendant was not entitled to a directed verdict.

Defendant contends he was entitled to a directed verdict because the evidence was insufficient to sustain the conviction. We have reviewed the record and we find the evidence sufficient to sustain the conviction for perjury.

The purpose of this opinion is not to assist the defendant, but to improve the administration of justice.

Reversed.

It is so ordered.

LOPEZ, J., concurs.