Shane Allen Womack v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION III

SHANE ALLEN WOMACK

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-45

October 2, 2002

APPEAL FROM THE WHITE COUNTY CIRCUIT COURT

[NO. CR-2001-301]

HON. ROBERT EDWARDS,

JUDGE

AFFIRMED

The appellant in this criminal case was charged with manslaughter. After a jury trial, he was convicted of that offense, fined $50,000, and sentenced to six years' imprisonment. From that conviction, comes this appeal.

For reversal, appellant contends that the trial court erred in denying his motion for a continuance on the grounds that the State failed to provide him with exculpatory material. We affirm.

Arkansas Rule of Criminal Procedure 17.1 requires the prosecutor to disclose all information in its possession that could be exculpatory to the defense in sufficient time to permit the defense to make beneficial use of it. See Rychtarik v. State, 334 Ark. 492, 976 S.W.2d 374 (1998). If the court learns that the prosecutor has failed to comply with Rule

17.1, it is within the court's discretion to order the prosecutor to permit the discovery or inspection of the materials not previously disclosed, grant a continuance, prohibit the prosecutor from introducing the undisclosed material, or enter such order as it deems proper under the circumstances. Ark. R. Crim. P. 19.7; Henry v. State, 337 Ark. 310, 989 S.W.2d 894 (1999).

Appellant was charged with committing manslaughter by beating the victim to death. The appellant did not dispute fighting with the victim, but asserted that another man (Dennis Swan) pulled appellant off the victim and then beat the victim to death.

Appellant filed a motion for discovery on July 24, 2001. The prosecuting attorney's office supplied appellant with a police report in which the lines were consecutively numbered. It is apparent from the report that lines 499 through 515 are missing. On October 6, 2001, several weeks after receiving the report, appellant first discovered that some lines of the report were missing. He requested and received the missing material from the prosecuting attorney on October 8, 2001 (which was the day before trial was scheduled), and moved for a continuance the same day. At a hearing held later on October 8, he argued that the omitted material contained exculpatory material in the form of a statement by Wendy Ivy that Dennis Swan told her that Swan struck the victim and kicked him in the face. The trial court, noting that Wendy Ivy had been listed as witness by the prosecution in a timely manner, ordered that Ivy be produced immediately for an interview by appellant's attorney, and that a subpoena should issue ordering her to be in court the following morning so as to be available for trial. Appellant's attorney interviewed Wendy Ivy on the evening ofOctober 8, and learned during the interview that she had seen blood on Swan's shirt following the fight.

On the morning of trial, appellant again moved for a continuance of the grounds that he had just learned about the bloody shirt and needed additional time to investigate this. The trial court, noting that Wendy Ivy had been listed as a witness and that the claim of surprise did not arise out of the omitted material, but instead from an interview that appellant's attorney could have conducted beforehand on the basis of the witness list with which he was provided, denied the motion.

Appellant contends that the trial court erred in denying his motion for a continuance. We do not agree. On appeal from an order denying requested relief arising out of the State's failure to disclose exculpatory testimony pursuant to pretrial discovery procedures, the burden is on the appellant to establish that the omission was sufficient to undermine confidence in the outcome of the trial, and we will reverse only if the appellant was prejudiced by the prosecutor's failure to disclose. Rychtarik v. State, supra. In the present case, any surprise regarding exculpatory material was cured by the trial court's order obtaining for appellant a pretrial interview with Wendy Ivy and obtaining her presence at trial. Although appellant did learn about the shirt during this interview, there was no mention of the shirt in the police report that had been the subject of the initial motion for a continuance. As was the case in Rychtarik v. State, supra, appellant's counsel knew the identity of the potential witness and could have learned about the bloody shirt in time to pursue it had he interviewed Wendy Ivy, a listed witness, before trial. A defendant in acriminal case cannot rely upon discovery as a total substitute for his own investigation, id., and we cannot say that the trial court abused its discretion in denying appellant's motion for a continuance.

Affirmed.

Robbins and Bird, JJ., agree.