Rule 16 is not a Valid Basis for Excluding Evidence Intended to Contradict Change of Testimony by State's Witnesses

Yesteday, the Court of Appeals (Gutierrez, Lansing, and Swartzman pro tem) issued its opinion in State v. Karpach. At trial, the State's witness, a Home Depot loss prevention investigator, testified that there was not any camera coverage of an area within the store which the Defendant was accused of removing merchandise. This was contrary to the witness' testimony at the PH in which he claimed there was camera footage of the area which he had reviewed and the Defendant was not recorded on the videotape evidence.

After the State had rested, Karpach's counsel called a previously undisclosed manager of Home Depot to testify that the loss prevention investigator had erroneously testified regarding the location of cameras. In counsel's offer of proof, the court was advised that the manager intended to testify that there was in fact camera coverage of the area where the merchandise was taken.

Judge Neville excluded the testimony of the witness for counsel's failure to comply with Rule 16 and based upon his conclusion that it was irrelevant and immaterial. The Court of Appeals expressly rejected Neville's reliance upon Rule 16 as a basis for exclusion of the evidence. What is more alarming, is that Judge Neville did not require the State to establish any actual prejudice caused by the putative failure to disclose. See State v. Allen 145 Idaho 183 (Ct. App. 2008). This was not much a concern to the Court of Appeals as they did not comment on this ommission.

The Court of Appeals, in dicta, cautiously avoided labeling this type of evidence as rebuttal. Rather, it attempted to limit the distinction to that being offered by the State to contradict the Defendant's case in chief. The Court noted Rule 16 only extends to those witnesses the Defendant intends to call. As there was no indication the witness' testimony would change thereby creating the need to call the manager, counsel could not be sanctioned for failing to comply with Rule 16.

Further, the Court overruled Neville's exclusion based upon the conclusion the evidence was immaterial and irrelevant. Rather, the Court noted the testimony had great exclupatory value and it was error to exclude it.

In a separate issue, the Court evaluated Judge Neville's exclusion of alarm logs on the basis that an insufficient foundation was established under the business records exception. On appeal, the Court of Appeals held that the trial court erred in evaluating admission of the evidence under the business records exception to the hearsay rule. Rather, the Court felt that the logs were properly presented to impeach the testimony of the State's witnesses.

In sum, the Court of Appeals reversed refusing to hold that the exclusion amounted to harmless error. Congrats go to John Meienhofer!!!
http://www.isc.idaho.gov/opinions/karpach33949.pdf