State v. Killean , 185 Ariz. 270 ( 1996 )

OPINION

LIVERMORE, Judge.^*

Defendant was charged with possession of marijuana for sale and transportation of marijuana for sale after he was arrested at the Phoenix airport with a suitcase containing twenty-three pounds of marijuana. His defense, revealed for the first time at trial in defense counsel’s opening statement, was that the suitcase belonged to a friend named Ed Kenefick who had traveled from Newark to Tucson with defendant and who had asked defendant to return Kenefiek’s suitcase to Kenefick’s wife. That defense was in fact presented through defendant’s testimony at trial. What is at issue in this appeal is whether the trial court abused its discretion in precluding admission of corroborative documentary evidence as a sanction for defendant’s violation of discovery rules by failing to reveal the existence of the evidence until trial. In State v. Killean, 184 Ariz. 164, 907 P.2d 550 (App.1995), the court of appeals concluded that because the trial judge found that the defense lawyer had not acted in bad faith, preclusion of the evidence was an abuse-of discretion. We disagree and vacate that opinion.

Our disagreement with the court of appeals is a narrow one. As that court noted, it is not yet clear whether preclusion of defense evidence is constitutionally permitted absent a finding of bad faith or willful misconduct. See Michigan v. Lucas, 500 U.S. 145, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991). Even if such a finding is required, we believe that on the record in this case it was either made or mandated. The trial court found, perhaps charitably, that counsel did not act in bad faith but instead was “dilatory and negligent in not doing what is clearly provided by the Rules of Discovery.” We read this as saying that the failure was not motivated by a desire to prevent the prosecution from gathering rebuttal evidence, though in fact it had that effect, but instead resulted from the simple failure to do what the rules required. However, the absence of bad faith is not alone sufficient to avoid preclusion where there is willfirl misconduct, such as an unexplained failure to do what the rules require. No explanation was offered here. That defense counsel knew of the evidence at least a week before trial is clear because he obtained subpoenas for that evidence at that time. Counsel was a certified criminal law specialist with thirty-eight years’ experience. He could not and did not claim ignorance of the requirements of the rules. When the trial court has found that defense counsel knowingly failed to perform a known legal obligation, the finding is one of willful misconduct. There is no evidence to support any other finding in this case.

Once the willfulness of the behavior is clear, the propriety of preclusion is also evident under the analysis in State v. Smith, 140 Ariz. 355, 681 P.2d 1374 (1984). While the precluded evidence was important, corroborating the defendant’s testimony as to the existence of a possible guilty third party, the sanction was precisely proportionate to the harm caused by the discovery violation. State v. Krone, 182 Ariz. 319, 897 P.2d 621 (1995). The violation prevented the prosecution from locating Kenefick as a rebuttal witness. (He was called after defendant revealed his phone number in his testimony. He denied involvement but refused to testify without a subpoena.) The loss of rebuttal was balanced by the loss of corroboration. Defendant was still able to offer his testimony without rebuttal from Kenefick; even with the sanction chosen, defendant profited from the violation and was able to present his defense to the trier. Other remedies could legitimately be found inadequate. The trial judge could not be sure how long a continuance would be necessary to obtain Kenefick’s testimony. A mistrial could have been declared, and found to be a manifest necessity because of defense counsel’s misconduct, but that would defeat the important interest in efficient judicial administration. Taylor v. Illinois, 484 U.S. 400, 416, 108 S.Ct. 646, 656, 98 L.Ed.2d 798 (1988), established that preclusion is an appropriate sanction for a serious discovery violation.

The opinion of the court of appeals is vacated. The convictions and sentences are affirmed.

FELDMAN, C.J., and MDELLER and MARTONE, JJ., concur.

* Justice ROBERT J. CORCORAN did not participate in this decision; pursuant to Ariz. Const, art. 6, § 3, the Honorable JOSEPH M. LIVER-MORE, Judge of the Arizona Court of Appeals, Division Two, was designated to sit in Justice Corcoran's stead.