IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 43795
STATE OF IDAHO, ) 2017 Opinion No. 17
)
Plaintiff-Respondent, ) Filed: February 21, 2017
)
v. ) Stephen W. Kenyon, Clerk
)
DANIEL MONTGOMERY, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the First Judicial District, State of Idaho,
Kootenai County. Hon. Cynthia K. C. Meyer, District Judge.
Judgment of conviction, affirmed.
Eric D. Fredericksen, State Appellate Public Defender; Elizabeth A. Allred,
Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
Attorney General, Boise, for respondent.
________________________________________________
HUSKEY, Judge
Daniel Montgomery appeals from his judgment of conviction after a jury found him
guilty of unlawful discharge of a firearm at a house, occupied building, vehicle, etc.
Montgomery argues the district court abused its discretion when it allowed the State’s
undisclosed witnesses to testify on rebuttal. Additionally, Montgomery argues the State
committed prosecutorial misconduct, resulting in a violation of his right to a fair trial. The
district court did not err when it determined that rebuttal witnesses need not be disclosed
pursuant to Idaho Criminal Rule 16(b)(6), but even if that was error, the error was harmless.
Additionally, the State did not engage in prosecutorial misconduct during its closing argument.
We affirm the district court’s decision.
1
I.
FACTUAL AND PROCEDURAL BACKGROUND
One evening, a vehicle swerved through a neighborhood and struck a trash can. The
vehicle drove to the end of the street, turned around, and began to drive back in the opposite
direction. Montgomery walked to the middle of the street and pointed his gun at the approaching
vehicle, forcing it to stop. Once stopped, the driver exited the vehicle and spoke with
Montgomery. Accounts differ as to the length and the topic of the conversation. The driver
returned to his vehicle, started driving forward, and struck Montgomery, at which point
Montgomery fired his gun at the vehicle. The two occupants of the vehicle drove away
unharmed.
The State charged Montgomery with two counts of aggravated assault, Idaho Code §§ 18-
901, 19-2520, 18-905, and one count of unlawful discharge of a firearm at an occupied vehicle,
I.C. §§ 18-3317, 19-2520. Montgomery filed a request for discovery pursuant to I.C.R. 16(b)(1-
8), and the State provided a witness list as well as a supplemental witness list. After the
preliminary hearing, the first count of aggravated assault toward the driver of the vehicle was
dismissed because of insufficient evidence. An information was filed and charged Montgomery
with one count of aggravated assault of the vehicle’s passenger and one count of unlawful
discharge of a firearm at a vehicle.
At trial, the State called five witnesses to testify about the events. After the State rested,
Montgomery called his wife and his daughter to testify about what they observed on that night.
Montgomery also called three neighbors who recounted what they saw during the incident.
Finally, Montgomery testified not only about what happened during the altercation, but also
about visiting the hospital the day after the incident and a hip injury he later discovered. Once
the defense rested, the State called four rebuttal witnesses, although only the first two witnesses
were disclosed on the State’s witness lists prior to trial. The first rebuttal witness related his
conversation with Montgomery after the altercation regarding Montgomery’s injuries. The
second rebuttal witness described his conversation with Montgomery at the police station on the
night in question. This witness testified about the discrepancy between the video surveillance
recording of the events and Montgomery’s explanation at the police station and at trial about
when his gun was drawn.
2
Before the third rebuttal witness testified, Montgomery objected that the two remaining
rebuttal witnesses were not disclosed prior to trial and as a result, should not be permitted to
testify. The trial court relied on precedent and the relevance of their testimony as the basis for
overruling the objection. The third witness, who was not disclosed in the State’s pretrial witness
list, testified regarding Montgomery’s good health when he was booked into jail. The fourth,
another undisclosed rebuttal witness, testified regarding the bullet holes in the car tire and other
damage to the vehicle.
The jury found Montgomery not guilty of aggravated assault. The jury found
Montgomery guilty of unlawful discharge of a firearm at a vehicle. The district court imposed
an eight-year sentence, with four years determinate, suspended the sentence, and placed
Montgomery on probation. Montgomery timely appeals.
II.
ANALYSIS
A. We Are Constrained to Hold the District Court Acted Consistently With the
Applicable Legal Standards When It Determined the State Was Not Required to
Disclose Its Rebuttal Witnesses Pursuant to I.C.R. 16(b)(6)
Montgomery argues the district court abused its discretion when it allowed the State to
present the testimony of two undisclosed rebuttal witnesses. Montgomery asserts the plain
language of I.C.R. 16(b)(6) requires the State to disclose all witnesses who may testify. He
further argues the failure to disclose the rebuttal witnesses should have resulted in the exclusion
of their testimony. Although Idaho courts have ruled otherwise, Montgomery argues the plain
language of I.C.R. 16(b)(6) and the 1989 amendment to I.C. § 19-1302 require the disclosure of
any potential witness; therefore, rendering any opinion issued subsequent to the amendment
incorrect.
When a party has failed to comply with discovery, the trial court may impose sanctions
including, in appropriate circumstances, the exclusion of a witness. I.C.R. 16(f)(2), 16(j); State
v. Miller, 133 Idaho 454, 456-57, 988 P.2d 680, 682-83 (1999); State v. Harris, 132 Idaho 843,
846, 979 P.2d 1201, 1204 (1999); State v. Lamphere, 130 Idaho 630, 633, 945 P.2d 1, 4 (1997).
Sanctions serve the dual purposes of encouraging compliance with discovery and punishing
misconduct. Roe v. Doe, 129 Idaho 663, 667, 931 P.2d 657, 661 (Ct. App. 1996). The choice of
an appropriate sanction, or whether to impose a sanction at all, for a party’s failure to comply
with a discovery request or order is within the discretion of the trial court. State v. Stradley, 127
3
Idaho 203, 207-08, 899 P.2d 416, 420-21 (1995); State v. Hawkins, 131 Idaho 396, 405, 958 P.2d
22, 31 (Ct. App. 1998). To determine whether a sanction will be imposed and what it will be, the
trial court must weigh the equities, balancing the culpability of the disobedient party with the
resulting prejudice to the innocent party in light of the twin aims of the sanction power. State v.
Anderson, 145 Idaho 99, 105, 175 P.3d 788, 794 (2008); Roe, 129 Idaho at 667, 931 P.2d at 661.
In reviewing a discretionary decision we ask: (1) whether the trial court correctly perceived the
issue as one of discretion, (2) whether the trial court acted within the boundaries of its discretion
and consistently with the legal standards applicable to the specific choices available to it, and (3)
whether the trial court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho
598, 600, 768 P.2d 1331, 1333 (1989).
In reviewing whether the trial court abused its discretion, Montgomery does not argue the
court failed to perceive the issue as one of discretion. Additionally, we hold that although
Montgomery asserts the district court “did not reach its decision when it allowed [Rebuttal
Witness 1] and [Rebuttal Witness 2] to testify based upon an exercise of reason,” this argument
is without merit. The district court listened to arguments from both parties at trial, considered
the statutory language of the Idaho Criminal Rules and Idaho Code, analyzed the case precedent,
and concluded that despite the State’s failure to disclose the rebuttal witnesses, in its discretion,
the court could allow the undisclosed rebuttal witnesses to testify. This analysis demonstrates a
sufficient exercise of reason. The issue, therefore, relates only to the second prong of the Hedger
standard: whether the trial court acted within the boundaries of its discretion and consistent with
the legal standards applicable to the choices available.
It is undisputed that Montgomery served a request for discovery, pursuant to I.C.R. 16.
In this request for discovery, Montgomery asked for the following:
6. A written list of the names, addresses, phone numbers and/or other
reasonable means of contact for all persons having knowledge of relevant facts
who may be called by the prosecuting attorney as witnesses at trial, together with
a NCIC report and a Spillman report of any such persons. Also the statements
made by the prosecution witnesses or prospective witnesses, made to the
prosecuting attorney or his agents, or to any official involved in the investigatory
process of the case.
It is also undisputed that two rebuttal witnesses called by the State had not been disclosed to
Montgomery prior to trial.
In relevant part, I.C.R. 16(b)(6) states:
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Upon written request of the defendant the prosecuting attorney shall
furnish to the defendant a written list of the names and addresses of all persons
having knowledge of relevant facts who may be called by the state as witnesses at
the trial, together with any record of prior felony convictions or any such person
which is within the knowledge of the prosecuting attorney.
Montgomery argues the language of I.C.R. 16(b)(6) clearly states that upon request, the
prosecuting attorney must furnish a list of all persons who may be called as a witness. Although
Idaho case law has allowed undisclosed witnesses to testify on rebuttal, Montgomery asserts this
case law is manifestly wrong and not binding authority because no Idaho statute has allowed
rebuttal witnesses to be undisclosed since I.C. § 19-1302 was amended in 1989. In response, the
State argues Idaho case law, which allows the testimony of undisclosed rebuttal witnesses, is
consistent with the plain language of I.C.R. 16(b)(6). The State also asserts Montgomery failed
to show prejudice from the rebuttal witness testimony. 1
We acknowledge there is a discrepancy between the plain language of I.C.R. 16(b)(6) and
Idaho precedent. Historically, the issue of whether known rebuttal witnesses must be disclosed
prior to trial has been governed by an interpretation of I.C. § 19-1302 which relied on the pre-
1989 version of the statute. As such, there are two conflicting lines of authority that control the
resolution of the issue. First, rules of statutory interpretation and precedent from the Idaho
Supreme Court require a court to follow the law as written when it is interpreting a statute or
court rule. If this line of authority is followed, rebuttal witnesses must be disclosed. Second,
case law has consistently held that rebuttal witnesses need not be disclosed and their testimony is
nonetheless admissible. If this line is followed, the district court did not err in determining
rebuttal witnesses need not be disclosed prior to testifying. In analyzing this conflict we will
look not only to the plain language of I.C.R. 16(b)(6), but also the historical relationship between
I.C.R. 16(b)(6), I.C. § 19-1302, and the cases that interpret the rule and the statute.
1. The plain language of I.C.R. 16(b)(6) requires the disclosure of all witnesses
We begin with the language at issue in this case. This Court exercises free review over
the application and construction of statutes. State v. Reyes, 139 Idaho 502, 505, 80 P.3d 1103,
1106 (Ct. App. 2003). Where the language of a statute is plain and unambiguous, this Court
1
We will address this issue of prejudice only insofar as it relates to undisclosed rebuttal
witnesses. The State uses our opinion in State v. Huntsman, 146 Idaho 580, 199 P.3d 155 (Ct.
App. 2008) to provide a standard for witness disclosure. However, our prejudice standard in
Huntsman concerns late disclosure of witnesses prior to trial, not undisclosed rebuttal witnesses.
5
must give effect to the statute as written, without engaging in statutory construction. State v.
Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999); State v. Escobar, 134 Idaho 387, 389,
3 P.3d 65, 67 (Ct. App. 2000). The language of the statute is to be given its plain, obvious, and
rational meaning. Burnight, 132 Idaho at 659, 978 P.2d at 219. If the language is clear and
unambiguous, there is no occasion for the court to resort to legislative history or rules of
statutory interpretation. Escobar, 134 Idaho at 389, 3 P.3d at 67. When this Court must engage
in statutory construction because an ambiguity exists, it has the duty to ascertain the legislative
intent and give effect to that intent. State v. Beard, 135 Idaho 641, 646, 22 P.3d 116, 121 (Ct.
App. 2001). To ascertain such intent, not only must the literal words of the statute be examined,
but also the context of those words, the public policy behind the statute, and its legislative
history. Id. It is incumbent upon a court to give an ambiguous statute an interpretation which
will not render it a nullity. Id. Constructions of an ambiguous statute that would lead to an
absurd result are disfavored. State v. Doe, 140 Idaho 271, 275, 92 P.3d 521, 525 (2004).
The Idaho Supreme Court clarified how Idaho courts should interpret statutory language
when the language is unambiguous in Verska v. Saint Alphonsus Reg’l Med. Ctr., 151 Idaho 889,
265 P.3d 502 (2011). Such interpretation must begin with the literal words of the statute; those
words must be given their plain, usual, and ordinary meaning; and the statute must be construed
as a whole. Id. at 893, 265 P.3d 502. It is well established that where statutory language is
unambiguous, legislative history and other extrinsic evidence should not be consulted for the
purpose of altering the clearly expressed intent of the legislature. Id. In addition, the Court
analyzed how to deal with a statute when it has unambiguous language, even if the language
appears absurd. In overruling the holding in State, Dept of Law Enf’t v. One 1955 Willys Jeep,
100 Idaho 150, 595 P.2d 299 (1979), the Supreme Court explained if a statute’s clear language
was absurd, a court still could not construe the statute to mean something other than what it says,
since the Idaho Constitution provides that only the legislature has the power to revise statutes.
Verska, 151 Idaho at 895, 265 P.3d at 508. The Court stated: “Thus, we have never revised or
voided an unambiguous statute on the ground that it is patently absurd or would produce absurd
results when construed as written, and we do not have the authority to do so.” Id. at 896, 265
P.3d at 509.
Not only has Idaho case law defined how statutes must be read, but also that Idaho courts
shall interpret court rules using these same principles of statutory interpretation. See, e.g.,
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Joyner v. State, 156 Idaho 223, 229, 322 P.3d 305, 311 (Ct. App. 2014); State v. Knutsen, 138
Idaho 918, 920-21, 71 P.3d 1065, 1067-68 (Ct. App. 2003). The Idaho Supreme Court held that
when interpreting court rules, Idaho appellate courts apply the same standards of construction as
are utilized with statutes. Miller v. Haller, 129 Idaho 345, 350, 924 P.2d 607, 612 (1996). In
order to use the same standards of statutory construction, courts must begin any interpretation of
court rules with an examination of the literal words of the rule and give the language its plain,
obvious, and rational meaning. Doe v. State, 153 Idaho 685, 689, 290 P.3d 1277, 1281 (Ct. App.
2012).
Here, the Idaho Criminal Rules utilize clear and unambiguous language in
I.C.R. 16(b)(6). The rule requires that if the defendant issues a written request, “the prosecuting
attorney shall furnish to the defendant a written list of the names and addresses of all persons
having knowledge of relevant facts who may be called by the state as witnesses at the trial.”
I.C.R. 16(b)(6). The plain language of I.C.R. 16(b)(6) dictates that the prosecutor must disclose
the names and addresses of all persons who may be called as a witness with no express
exception, which would include rebuttal witnesses. Since we apply Idaho Criminal Rules
according to their plain language, and because I.C.R. 16(b)(6) contains no exception concerning
the disclosure of rebuttal witnesses by virtue of the language of the rule itself, a prosecutor must
disclose all witnesses with knowledge of relevant facts, even those that may be called as rebuttal
witnesses. However, simply applying the rule as written does not harmonize the rule, the statute,
and the case law. Therefore, we turn next to the historical relationship between I.C.R. 16(b)(6),
I.C. § 19-1302, and precedent which interprets both the rule and the statute.
2. The relationship between I.C. § 19-1302 and I.C.R. 16
There is a historical relationship which should be recognized between I.C.R. 16(b)(6),
I.C. § 19-1302, and the Idaho case law interpreting the court rule and the statute. We provide the
following legislative history of I.C. § 19-1302 not as a way to interpret the language of the
statute or I.C.R. 16(b)(6), but rather as a means by which to address a line of cases that
seemingly rest on text that no longer exists.
We begin with I.C. § 19-1302, its 1989 amendment, and the degree to which the code
section originally related to I.C.R. 16(b)(6). Originating in the late nineteenth century, I.C. § 19-
1302 existed in substantially the same form until 1989. Prior to 1989, I.C. § 19-1302 read:
7
All informations shall be filed in the court having jurisdiction of the
offense specified therein by the prosecuting attorney as informant, he shall
subscribe his name thereto and indorse thereon the names of the witnesses known
to him at the time of filing the same; and at such time before the trial of any case
as the court may rule or otherwise prescribe, he shall indorse thereon the names of
such other witnesses as shall then be known to him: provided, however, that the
witnesses called by the state in rebuttal need not be indorsed upon the
information.
The language of the code section required a prosecuting attorney to provide the names of known
witnesses on the information, but not the names of rebuttal witnesses. This statute preceded the
adoption of discovery rules and thus, was a way for the defendant to determine who the
witnesses against him may be. However, in 1972, the Idaho Supreme Court adopted Rules of
Criminal Practice and Procedure, which were the precursor to the Idaho Criminal Rules, adopted
in 1979. 2 The language of Idaho Criminal Practice and Procedure Rule 16 read as follows:
State witnesses. Upon motion of the defendant the court may order the
prosecuting attorney to furnish to the defendant a written list of the names and
addresses of all persons having knowledge of relevant facts who may be called by
the state as witnesses at the trial, together with any record of prior felony
convictions of any such person which is within the knowledge of the prosecuting
attorney. Names and addresses of the prosecution witnesses shall not be subject
to disclosure if the prosecuting attorney certifies that to do so may subject the
witness or others to physical or substantial economic harm or coercion.
In 1979, Idaho adopted criminal rules governing discovery, effective July 1, 1980.
I.C.R. 16(b)(6) (1980). The language of I.C.R. 16(b)(6) has remained virtually identical since its
adoption. Thus, the Idaho Supreme Court formalized the discovery process, thereby providing a
more consistent and uniform way in which the defendant could determine who may testify
against him in order to adequately prepare for such testimony. Importantly, the Idaho Supreme
Court changed the discovery requirement from “may” in Criminal Practice and Procedure Rule
(16)(a)(1)(vi) to “shall” in Idaho Criminal Rule 16(b)(6).
In 1988, the Idaho Legislature attempted to amend I.C. § 19-1302. One reason for the
amendment was to protect the identity of witnesses and victims. Before the 1988 legislative
session, sexual assault crimes occurred at the University of Idaho and the names of victims and
witnesses were printed in the information charging the defendant with the crimes. Public
disclosure of these names caused distress to the individuals associated with the case, as one of
2
The Idaho Rules of Criminal Practice and Procedure were rescinded when the Court
adopted the Idaho Criminal Rules.
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the witnesses disclosed was the daughter of an Idaho legislator. As a way to protect the privacy
of all the individuals, legislation was proposed to remove the requirement that names of
witnesses and victims be listed in the information. The minutes of the House Judiciary, Rules
and Administration Committee reveal the initial discussion of the proposed legislation focused
on the confidentiality of victim and witness identities. 3 The Attorney General explained the
benefits of anonymity, particularly in assisting police and solving crimes while protecting
victims and witnesses from intimidation. Members of the press argued against the amendment,
which would have denied reporters the ability to obtain identifying information of witnesses. At
the end of the meeting, the committee voted to hold the bill in committee, which prevented the
amendment from passing during the 1988 session.
The next year, the Idaho Legislature successfully amended I.C. § 19-1302. The purpose
of House Bill 253 was to “eliminate the requirement that the state endorse on the information the
names of its witnesses at the time of filing the information. Because of the advent of modern
discovery procedures under Criminal Rule 16, this statutory requirement is no longer needed. 4”
The discussion in the House committee 5 also indicated that modern discovery procedures made
the prior naming requirement unnecessary because the names of the witnesses would be
disclosed in discovery; the Senate committee described the amendment removing the listing of
witnesses in the charging document as a mere technical change. 6 House Bill 253 passed both the
House and the Senate during the 1989 Legislative Session. As a result of the amendment,
I.C. § 19-1302 read, and still reads: “All informations shall be filed in the court having
jurisdiction of the offense specified therein by the prosecuting attorney as informant to which he
shall subscribe his name.” 7
3
HB 473, March 17, 1988 (House Judiciary, Rules and Administration Committee
Minutes).
4
Statement of Purpose, RS 22671 (HB 253), 1989.
5
HB 253, March 3, 1989 (House Judiciary, Rules and Administration Committee
Minutes).
6
HB 253, March 20, 1989 (Senate Judiciary and Rules Committee Minutes).
7
The amending language pursuant to House Bill No. 253 is as follows:
All informations shall be filed in the court having jurisdiction of the
offense specified therein by the prosecuting attorney as informant; to which he
shall subscribe his name thereto and indorse thereon the names of the witnesses
known to him at the time of filing the same; and at such time before the trial of
9
The amendment to I.C. § 19-1302 removed a significant portion of the statutory
language; the resulting code section identifies only where an information should be filed and
who should issue the filing. The stricken language can be categorized into two groups: first, the
requirement to endorse on the information the names of known witnesses; and second, the
exception to this disclosure requirement for rebuttal witnesses. Following the 1989 amendment,
the plain language of I.C. § 19-1302 no longer required a prosecutor to endorse the names of
known witnesses on the information. Additionally, after the amendment, there was no longer a
statutory exception for non-disclosure of rebuttal witnesses. Significantly, this section was
removed specifically based on the evidence of I.C.R. 16 and its disclosure requirements, which,
as we have noted above, do not exempt witnesses. We turn next to cases addressing the issue.
3. Idaho precedent relies on the language of I.C. § 19-1302 before the 1989
amendment was enacted
a. Cases interpreting I.C. § 19-1302
Prior to the adoption of the Idaho Rules of Criminal Practice and Procedure in 1972,
Idaho courts relied on I.C. § 19-1302 as the foundation for determining whether rebuttal
witnesses must be disclosed. At that time, I.C. § 19-1302 specifically exempted rebuttal
witnesses from disclosure; therefore, it is not surprising the cases reached the same conclusion.
Even today, the current statute headnotes cite to State v. Stewart, 46 Idaho 646, 270 P. 140
(1928) and State v. Mundell, 66 Idaho 297, 159 P.2d 818 (1945) and indicate the “purpose of
these provisions is to inform the defendant of the names of the witnesses who are to testify
against him, so that he may have an opportunity to meet and controvert their evidence” even
though both cases rely on the pre-1989 version of I.C. 19-1302. Mundell, 66 Idaho at 303, 158
P.2d at 820 (quoting Stewart, 46 Idaho at 650, 270 P. 141). The headnote also lists State v.
Olsen, 103 Idaho 278, 647 P.2d 734 (1982). The Olsen Court stated: “The purpose of the
endorsement requirement in this section [I.C. § 19-1302] is essentially the same as the purpose of
I.C.R. 16(a)(vi), 8 i.e., discovery by the defendant of the names of all persons having knowledge
any case as the court may rule or otherwise prescribe, he shall indorse thereon the
names of such other witnesses as shall then be known to him: provided, however,
that the witnesses called by the state in rebuttal need not be indorsed upon the
information.
8
The citation to I.C.R. 16(a)(vi) is misleading for three reasons. First, the Idaho Criminal
Rules, which are typically designated as “I.C.R.,” did not exist at the time of Olsen’s trial.
10
of relevant facts who may be called by the state as witnesses.” Olsen, 103 Idaho at 283, 647
P.2d at 739. Notably, however, two of the above cases were issued prior to the adoption of the
Idaho Rules of Criminal Practice and Procedure and all three of the above cases occurred prior to
the 1989 amendment of I.C. § 19-1302 when rebuttal witnesses were specifically exempt from
the disclosure requirement.
b. The ruling in Olsen
Olsen is often cited as the seminal case holding that rebuttal witnesses need not be
disclosed pursuant to Idaho Criminal Rule 16. See Olsen, 103 Idaho at 283, 647 P.2d at 739.
However, that is not what Olsen holds. Olsen never analyzed I.C. § 19-1302 in conjunction with
I.C.R. 16 because I.C.R. 16 did not take effect until after the Olsen opinion was issued. Thus,
reliance on Olsen as authority that rebuttal witnesses need not be disclosed pursuant to I.C.R. 16
is unsupported.
In that case, Olsen was convicted of two counts of assault with a deadly weapon. Olsen,
103 Idaho 280, 647 P.2d at 736. At trial, Olsen offered evidence that he was intoxicated at the
time he discharged the gun and that he did not intend to shoot in the direction of the police
officers. Id. at 281, 647 P.2d at 737. To rebut this evidence, the State called a witness it had not
discovered until the end of the first day of trial. Id. at 282, 647 P.2d at 738. Because the witness
was unknown to the State until that time, the witness was not endorsed on the information or
included in the State’s response to Olsen’s pretrial discovery request. Id. Olsen objected, but the
trial court permitted the witness to testify regarding the defendant’s intoxication and intent in
discharging the gun. Id. at 281-82, 647 P.2d at 737-38. On appeal, Olsen made two arguments,
only one of which is relevant here. That is, Olsen argued the State’s failure to disclose the
identity of the rebuttal witness deprived him of a fair trial. Id. at 282, 647 P.2d at 738. Olsen
raised three challenges on that basis: first, the failure to disclose violated a constitutional right to
a fair trial; second, the State had a statutory duty to disclose known witnesses; and third, the
Second, the designated citation for the Idaho Rules of Criminal Practice and Procedure was
“I.C.R.” Thus, the designation of I.C.R. in 1979 correctly designates a subsection of the Idaho
Rules of Criminal Practice and Procedure, but not the Idaho Court Rules adopted in 1979.
Additionally, the citation to subsection (a)(vi) of Idaho Criminal Practice and Procedure Rule 16
is incorrect as no such subsection ever existed. Instead, the correct citation is Rule 16(a)(1)(vi).
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State had an on-going duty of disclosure pursuant to Idaho Criminal of Practice and Procedure
Rule 16(d). Olsen, 103 Idaho at 283, 647 P.2d at 739.
Olsen’s constitutional argument was dispatched by the Court rather summarily because
the evidence was not exculpatory. Id. The Court also analyzed Olsen’s claim that the State had
a duty to disclose known witnesses, even if those witnesses were only used on rebuttal. Id. Due
to the explicit language of I.C. § 19-1302 at the time of the case, the Idaho Supreme Court
rejected this argument by ruling: “The state was under no statutory duty to disclose [the
rebuttal witness’s] identity, and the failure to do so did not prejudice defendant’s right to a fair
trial.” Olsen, 103 Idaho at 283, 647 P.2d at 739. The Court explained:
I.C. § 19-1302 requires the prosecuting attorney to endorse on the information the
names of all witnesses known to him at the time of filing the information. The
purpose of the endorsement requirement in I.C. § 19-1302 is essentially the same
as the purpose of I.C.R. 16(a)(vi), i.e., discovery by the defendant of the names of
all persons having knowledge of relevant facts who may be called by the state as
witnesses. However, I.C. § 19-1302 specifically excludes rebuttal witnesses from
the endorsement requirement with the following proviso: “Provided, however,
that the witnesses called by the state in rebuttal need not be endorsed upon the
information.”
Olsen, 103 Idaho at 283, 647 P.2d at 739 (internal citations omitted).
The Court concluded the discovery purposes of the statute and the Idaho Criminal
Practice and Procedure Rule 16(a)(1)(vi) are “essentially the same,” as both provided for a
mechanism by which the defendant could discover the names of all persons who may be
disclosed as witnesses. Olsen, 103 Idaho at 283, 647 P.2d at 739. The Idaho Criminal Practice
and Procedure Rule and the statute were essentially the same because at that time, I.C. § 19-1302
specifically exempted the disclosure of rebuttal witnesses. Idaho Criminal Practice and
Procedure Rule 16(a)(1)(vi) similarly did not mandate the disclosure of rebuttal witnesses,
instead leaving it to the discretion of the trial court. The Court then held the State may use
rebuttal witnesses who have not been disclosed to the defense, since the language of I.C. § 19-
1302 in 1982--which contained the same purpose as the discovery criminal rule--expressly
provided this exception to the disclosure requirement. Olsen, 103 Idaho at 283, 647 P.2d at 739.
As to Olsen’s claim that the State breached its duty of on-going disclosure, the Court
citing Rule 16(a) of the Idaho Criminal Procedure and Practice Rule analyzed the issue as one of
late disclosure rather than as a failure to disclose a witness. Olsen, 103 Idaho at 283, 647 P.2d at
739. The Court held the witness was disclosed as soon as he was discovered, and pursuant to an
12
offer of proof, Olsen was apprised of the testimony before the witness testified. Id. at 284, 647
P.2d at 740. Because Olsen neither objected to the admission of the testimony on the basis of
prejudice nor requested a continuance so he could prepare, Olsen did not show he was
prejudiced. Id. Consequently, the Court held there was no error in admitting the witness’s
testimony. Id.
c. Case law following Olsen: 1982-1989
Despite the actual holding of Olsen, subsequent cases have relied on Olsen as the basis
to consistently hold that I.C.R. 16 does not extend to a prosecutor’s duty to disclose rebuttal
witnesses. However, as noted above, reliance on Olsen for this proposition is misplaced for three
reasons. First, I.C.R. 16 was not adopted at the time of Olsen’s trial. Second, procedural rules
that were in effect at the time made all discovery discretionary with the court. Third, the cases
have not addressed the amended statutory language of I.C. § 19-1302 or the reason for the
amendment--which was to both provide additional protection for the identity of witnesses and
victims and as recognition that I.C.R. 16(b)(6) was the more appropriate mechanism governing
disclosure of witnesses.
For example, State v. Pierce, 107 Idaho 96, 685 P.2d 837 (Ct. App. 1984), citing Olsen as
its authority, was one of the earliest appellate cases to stand for the rule that a prosecutor does
not need to disclose rebuttal witnesses prior to the admission of the witnesses testimony. Pierce,
107 Idaho 96, 106-07, 685 P.2d 837, 847-48. In Pierce, the State failed to disclose information
about a witness, and Pierce claimed he was prejudiced by the surprise at trial when the State
called this witness in rebuttal. Pierce, 107 Idaho at 105, 685 P.2d at 846. Before the trial had
begun, the State knew the content of the testimony and that it may need to call the witness to the
stand. Id. at 106, 685 P.2d at 847. Even with this knowledge, this Court, citing Olsen, explained
there is no duty to disclose information about a rebuttal witness. Pierce, 107 Idaho at 106-07,
685 P.2d at 847-48. This Court held:
Of course, such testimony would have been subject to a duty of disclosure under
Rule 16(b) had the inmate been the state’s witness. However, as noted, the
inmate was a defense witness when first called to the stand. The inmate’s
subsequent testimony as a rebuttal witness for the state implicated Pierce in
tampering with documentary evidence. However, there is no constitutional duty,
nor any requirement under Rule 16(a), for the state to disclose potentially
inculpatory testimony of a rebuttal witness. State v. Olsen, 103 Idaho 278, 647
P.2d 734 (1982). See also I.C. § 19-1302.
Pierce, 107 Idaho at 106-07, 685 P.2d at 847-48 (citations omitted).
13
At the time Pierce was issued, although I.C. § 19-1302 had not yet been amended, the
Idaho Supreme Court had adopted the Idaho Criminal Rules. In doing so, the Court specifically
rejected the discretionary standard of “may” in the Idaho Rules of Criminal Procedure and
Practice and replaced it with “shall” in the newly adopted Idaho Criminal Rule 16(b)(6). Thus,
the Pierce decision was the first Idaho case to link the criminal rule for discovery (I.C.R. 16)
with the statutory rule for endorsing witnesses on an information (I.C. § 19-1302). Pierce, 107
Idaho at 106-07, 685 P.2d at 847-48. Given the reliance on I.C. § 19-1302 and Olsen, the Pierce
decision conflated the requirements of the statute and the explicit language of the rule. As a
result, the decision read language from I.C. § 19-1302 into I.C.R. 16(b)(6)--language which
otherwise did not exist in the rule.
That same year, State v. Lopez, 107 Idaho 726, 692 P.2d 370 (Ct. App. 1984) confirmed
this Court’s ruling in Pierce. Again, the issue on appeal was whether the district court erred in
holding the prosecutor was not required to disclose the names of rebuttal witnesses when the
defendant had requested such disclosure before trial. Consistent with Pierce (which relied on
Olsen), this Court held as follows:
Appellants further contend that the district court erred in allowing
testimony by two prosecution witnesses whose identities had not been disclosed
until the morning of the day when they were called. A prosecutor is
constitutionally required to disclose exculpatory evidence. He also is required by
rule to disclose, upon request, the names and addresses of persons having
knowledge of the relevant facts. I.C.R. 16(b)(6). However, there are limits. The
prosecutor’s duty to disclose witnesses does not extend to persons called for
rebuttal.
Lopez, 107 Idaho at 739, 692 P.2d at 383 (citations omitted).
d. Case law interpreting I.C. § 19-1302 after the 1989 amendment
Following the 1989 amendment to I.C. § 19-1302, Idaho courts continued to hold the
nondisclosure of rebuttal witnesses was not error. For instance, in State v. Jones, 125 Idaho 477,
873 P.2d 122 (1993), the Idaho Supreme Court analyzed the testimony of an undisclosed
witness. Although the Supreme Court stated: “The State may call an undisclosed witness when
the testimony of the witness only concerns the chain of possession of certain evidence, State v.
Goodrick, 95 Idaho 773, 777, 519 P.2d 958, 962 (1974), or during rebuttal,” the Court cited no
authority for the proposition that general rebuttal witnesses need not be disclosed. Jones, 125
Idaho at 488, 873 P.2d at 133. The Court then decided the witness was not a rebuttal witness
because the witness “surfaced” during the State’s case-in-chief. Id. at 489, 873 P.2d at 134. As
14
a result, the Court held the district court erred in admitting the testimony of an undisclosed
witness who was not a rebuttal witness, although the error was harmless. Id.
On a different occasion, this Court in State v. Dye, 124 Idaho 250, 858 P.2d 789 (Ct. App.
1993), although addressing other issues, cited Lopez, 107 Idaho at 739, 692 P.2d at 383 and
noted in passing that a prosecutor’s duty to disclose witnesses does not extend to those called on
rebuttal. Dye, 124 Idaho at 253, 858 P.2d at 792. Similarly, to support a conclusion that the
State did not need to disclose a potential witness’s prior felony convictions in Queen v. State,
146 Idaho 502, 198 P.3d 731 (Ct. App. 2008), this Court explained, “the state’s disclosure duties
pursuant to I.C.R. 16(b)(6) do not extend to persons called as rebuttal witnesses.” Queen, 146
Idaho at 504, 198 P.3d at 733.
e. This Court addresses the issue in Wilson
As we have seen, on the one hand, Idaho case law utilizes a combination of
I.C.R. 16(b)(6), I.C. § 19-1302, and case precedent to stand for the proposition that the State
does not need to disclose the identity of rebuttal witnesses. On the other hand, the plain
language of I.C.R. 16(b)(6) contains no exception to a disclosure requirement that applies to all
witnesses; the statute no longer applies; and Olsen, the case on which subsequent cases rely, has
no such holding. This Court recently raised this issue in State v. Wilson, 158 Idaho 585, 349
P.3d 439 (Ct. App. 2015). There, in a footnote, we stated:
The State argues on appeal that limiting the State to using the bartender’s
testimony only in rebuttal “cured” its discovery violation because the State does
not have a duty to disclose rebuttal witnesses under I.C.R. 16(b)(6). We do not
decide the merits of this contention, but note that I.C.R. 16(b)(6) contains no
express exception for rebuttal witnesses. The State’s argument is reliant upon a
series of Idaho decisions stating broadly that the prosecutor’s duty to disclose
witnesses does not extend to persons called for rebuttal. However, that line of
authority seems to trace back to State v. Olsen, 103 Idaho 278, 647 P.2d 734
(1982), which was applying the terms of a then-existing statute, I.C. § 19-1302.
At that time, the statute required the prosecuting attorney to endorse on any
information charging a felony the names of all witnesses known to the prosecutor
at the time of the filing of the information, but also included a proviso “that the
witnesses called by the state in rebuttal need not be endorsed upon the
information.” In Olsen, the Court resolved against the defendant his claim that
I.C. § 19-1302 required disclosure of a State’s rebuttal witness; the Court did not
address whether the then-existing criminal rule, in the circumstances of that case,
required such disclosure. An amendment to section 19-1302 in 1989 removed the
requirement that the names of witnesses be endorsed on the information and the
accompanying proviso. After the adoption of the Idaho Criminal Rules in 1972,
15
with the language now found in I.C.R. 16(b)(6), the first case to state that rebuttal
witnesses need not be disclosed by the prosecution was State v. Pierce, 107 Idaho
96, 106-07, 685 P.2d 837, 847-48 (Ct. App. 1984), but for that proposition the
court cited only Olsen, a case that did not address the discovery obligations
imposed by I.C.R. 16(b)(6). Then Lopez carried forward that proposition, citing
only Pierce. Subsequent cases indicating that rebuttal witnesses need not be
disclosed in discovery cite Lopez, without actual analysis of whether the language
of Rule 16(b)(6) requires disclosure of rebuttal witnesses that are contemplated in
advance of trial.
Wilson, 158 at 590 n.2, 349 P.3d 444 n.2 (citations omitted).
4. The case at bar
Unlike the facts in Wilson, which did not require this Court to address the substantive
question of undisclosed rebuttal witnesses, Montgomery squarely presents the issue. At trial,
Montgomery objected to the testimony of the two rebuttal witnesses, requesting the witnesses not
be allowed to testify pursuant to I.C.R. 16(b)(6) since they had not been disclosed. In support of
his objection, Montgomery cited the footnote in Wilson to explain how Idaho case law is
inaccurate when it has held rebuttal witnesses do not need to be disclosed. In response, the State
argued the facts in Wilson were different, the footnote was simply dicta, and the Court was still
bound by Lopez because Wilson did not overrule Lopez. The trial court acknowledged
Montgomery’s argument, but explained the footnote in Wilson was dicta; therefore, the footnote
was not binding on the court. It further concluded:
The prior precedent established by previous rulings of the Supreme Court and
continuing beyond the amendment to Idaho Code Section 19-1302 stands for the
proposition that rebuttal witnesses do not have to be disclosed, and those cases
have not been overruled, which includes State versus Jones, 125 Idaho 477, and
State versus Lopez, 107 Idaho 726.
a. The district court ruled consistently with legal standards
We conclude that because of Idaho Supreme Court precedent, the district court acted
within the boundaries of its discretion when it allowed testimony from the State’s undisclosed
rebuttal witnesses. In considering the standard of review set forth in Hedger, our case involves
only the second prong of the analysis--whether the trial court acted within the boundaries of its
discretion and consistent with the legal standards applicable to the choices available. The trial
court here acted within the boundaries of its discretion. The trial court acknowledged how the
determination of discovery sanctions and the decision to allow testimony is discretionary with
the trial court. The trial court decided it would not exclude the testimony of the State’s rebuttal
16
witnesses, since Montgomery made no showing of prejudice. The court explained this testimony
was also allowed since it was “proper to rebut claims made by the defendant himself.” Because
the court recognized its discretion and considered the testimony and any possible prejudice
before issuing a ruling, the trial court acted within the boundaries of its discretion.
The court also ruled consistently with legal standards given Idaho Supreme Court
precedent. The district court based its conclusion on precedent that relied on the pre-1989
version of I.C. § 19-1302, so it is understandable how the district court reached its conclusion.
Nonetheless, I.C.R. 16(b)(6) requires the State to disclose all witnesses who may testify at trial.
Idaho case law has consistently held that statutes and court rules must be interpreted as written.
The district court did not interpret the unambiguous language of I.C.R. (16)(b)(6) according to its
plain meaning. Ordinarily, this would lead to a conclusion that the district court did not rule
consistently with the legal standards applicable to the case. However, the district court in this
case correctly recognized it was bound to follow applicable Idaho Supreme Court precedent.
Neither trial courts nor this Court are free to disregard precedents of the Idaho Supreme Court,
regardless of how persuasive the appellant’s arguments may be concerning the logic or fairness
of the issue at hand. Craig v. Gellings, 148 Idaho 192, 195, 219 P.3d 1208, 1211 (Ct. App.
2009). Therefore, we are constrained to conclude the district court ruled consistently with the
applicable legal standards and satisfied the second prong of the Hedger standard when it
determined the State need not disclose known rebuttal witnesses.
b. Any error was harmless
Even if the trial court had erred in determining the State did not need to disclose known
rebuttal witnesses, the error was harmless. Error is not reversible unless it is prejudicial. State v.
Stoddard, 105 Idaho 169, 171, 667 P.2d 272, 274 (Ct. App. 1983). With limited exceptions,
even constitutional error is not necessarily prejudicial error. Id. Thus, we examine whether the
alleged error complained of in the present case was harmless. See State v. Lopez, 141 Idaho 575,
578, 114 P.3d 133, 136 (Ct. App. 2005).
Here, over defense counsel’s objection, the district court allowed two undisclosed
rebuttal witnesses to testify during trial. Rebuttal Witness 1 was a senior deputy who helped
book Montgomery into jail. As part of the booking procedure, Rebuttal Witness 1 questioned
Montgomery about his health and whether Montgomery had any injuries. In his rebuttal
testimony, Rebuttal Witness 1 explained that in response to these booking questions,
17
Montgomery said his health was good and he did not have any injuries. The jury heard
testimony from multiple witnesses regarding Montgomery’s health. For instance, one witness
testified that he questioned Montgomery at the scene of the incident and also spoke with
Montgomery at the jail. This witness explained that at the scene, Montgomery did not mention
any injuries. However, once at the jail, Montgomery filled out an information sheet where he
indicated he had several bulged disks. The jury also heard testimony from Montgomery
regarding his injuries. Montgomery testified regarding his treatment at the hospital following his
release from jail, and he responded to questions about his injuries during cross-examination.
Montgomery also responded to additional questions about his injuries in surrebuttal direct
examination. As a result, while Rebuttal Witness 1’s testimony contradicted other testimony, the
jury heard evidence in addition to Rebuttal Witness 1 regarding Montgomery’s injuries.
Therefore, even if error did occur in admitting the rebuttal witness testimony, we conclude
beyond a reasonable doubt that the error did not contribute to the jury’s verdict of discharge of a
firearm at a vehicle because of the additional evidence the jury heard.
Any error in allowing testimony from Rebuttal Witness 2 was also harmless. Rebuttal
Witness 2 was a detective who inspected the victim’s vehicle for evidence. In examining the flat
tire of the vehicle in question, Rebuttal Witness 2 explained he found two holes in the tire and a
significant dent in the rim. He also stated he found “two deformed bullet slugs” within the tire.
The testimony from Rebuttal Witness 2 is also not prejudicial. Although Montgomery and
Rebuttal Witness 2 disagreed as to the number of bullet slugs recovered from the tire, the
testimony referred to the gun shots fired into the vehicle’s tires. Montgomery did not contest
that he fired at the vehicle. Therefore, even if the district court erred in finding the State need
not disclose rebuttal witnesses, we conclude beyond a reasonable doubt this error did not
contribute to the jury’s verdict in light of the testimony regarding the bullets within the tire and
Montgomery’s own concession on that issue.
Finally, not only did the jury hear additional testimony concerning Montgomery’s
injuries and the bullets within the tire, but the jury also watched a video of the events. In
viewing the video, the jury saw Montgomery walk into the street, converse with the driver, and
fire shots at the vehicle. Montgomery was charged with unlawful discharge of a firearm, which
is apparent from the video. In his own testimony, Montgomery admits to discharging the
firearm. Therefore, for the aforementioned reasons, in addition to the video available, any error
18
in allowing the undisclosed rebuttal witness testimony did not contribute to the jury’s verdict.
Therefore, any error was harmless error.
5. Conclusion
In sum, we recognize that Idaho case law interpreting I.C. § 19-1302 relies on the pre-
1989 version of the statute. After 1989, I.C. § 19-1302 no longer controlled discovery in
criminal cases. The controlling court rule, I.C.R. 16, contains no language exempting known
rebuttal witnesses from disclosure. Nonetheless, given Idaho Supreme Court precedent, we are
constrained to conclude the district court did not err in finding the State need not disclose its
rebuttal witnesses. Even if it was error, the error was harmless.
B. The State Did Not Commit Prosecutorial Misconduct During Its Closing Argument
Montgomery argues the prosecutor made unfounded statements during closing argument
which wrongly accused Montgomery’s witnesses of lying. From these statements, Montgomery
argues the misconduct amounts to fundamental error since it denied him the right to due process
of the law and a fair trial, in violation of the Sixth and Fourteenth Amendments.
While our system of criminal justice is adversarial in nature, and the prosecutor is
expected to be diligent and leave no stone unturned, the prosecutor is nevertheless expected and
required to be fair. State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007). However, in
reviewing allegations of prosecutorial misconduct we must keep in mind the realities of trial. Id.
A fair trial is not necessarily a perfect trial. Id.
Montgomery made no contemporaneous objection to the prosecutor’s closing argument at
trial, and the trial court did not limit the prosecutor’s comments or provide the jury with curative
instructions for the statements that Montgomery now cites. In Perry, 150 Idaho 209, 245 P.3d
961, the Idaho Supreme Court clarified the fundamental error doctrine as it applies to allegations
of prosecutorial misconduct. If the alleged misconduct was not followed by a contemporaneous
objection, an appellate court should reverse when the defendant persuades the court that the
alleged error: (1) violates one or more of the defendant’s unwaived constitutional rights; (2) is
clear or obvious without the need for reference to any additional information not contained in the
appellate record; and (3) affected the outcome of the trial proceedings. Id. at 226, 245 P.3d at
978.
Each statement objected to by Montgomery on appeal occurred during the prosecutor’s
closing argument. Closing argument serves to sharpen and clarify the issues for resolution by the
19
trier of fact in a criminal case. State v. Phillips, 144 Idaho 82, 86, 156 P.3d 583, 587 (Ct. App.
2007). Its purpose is to enlighten the jury and to help the jurors remember and interpret the
evidence. Id.; State v. Reynolds, 120 Idaho 445, 450, 816 P.2d 1002, 1007 (Ct. App. 1991).
Both sides have traditionally been afforded considerable latitude in closing argument to the jury
and are entitled to discuss fully, from their respective standpoints, the evidence and the
inferences to be drawn therefrom. State v. Sheahan, 139 Idaho 267, 280, 77 P.3d 956, 969
(2003); Phillips, 144 Idaho at 86, 156 P.3d at 587.
Closing argument should not include counsel’s personal opinions and beliefs about the
credibility of a witness or the guilt or innocence of the accused. Phillips, 144 Idaho at 86, 156
P.3d at 587. See also State v. Garcia, 100 Idaho 108, 110-11, 594 P.2d 146, 148-49 (1979);
State v. Priest, 128 Idaho 6, 14, 909 P.2d 624, 632 (Ct. App. 1995); State v. Ames, 109 Idaho
373, 376, 707 P.2d 484, 487 (Ct. App. 1985). A prosecuting attorney may express an opinion in
argument as to the truth or falsity of testimony or the guilt of the defendant when such opinion is
based upon the evidence, but the prosecutor should exercise caution to avoid interjecting his or
her personal belief and should explicitly state that the opinion is based solely on inferences from
evidence presented at trial. Phillips, 144 Idaho at 86 n.1, 156 P.3d at 587 n.1. The safer course
is for a prosecutor to avoid the statement of opinion, as well as the disfavored phrases, “I think”
and “I believe” altogether. Id.
Here, we conclude the prosecutor’s statements during closing argument do not constitute
misconduct. The prosecutor issued the following statement during his closing argument:
You heard some testimony, some of Mr. Montgomery’s witnesses took the
stand. [Witness 1] took the stand. He said that [Mr. Montgomery] was acting
calm and collected. There’s no change in that. Dan was acting calm and
collected the entire time.
He said [Mr. Montgomery] had the gun holstered and he only drew it after
[the victim] got back in the vehicle.
That’s not what you saw on the video. [Witness 1] is not to be believed.
He lied to you. That’s not what you saw in the video.
....
[Witness 2] took the stand and testified for Mr. Montgomery. The gun
was not drawn until after the vehicle stopped. That’s not what you saw in the
video. She lied to you.
[Witness 3] testified the gun was holstered. He only drew the gun after
the driver got back in the car. That’s not what you saw in the video. He lied to
you, too.
20
Mr. Montgomery’s wife took the stand and lied to you. She said she
thought he got run over.
Because parties are given considerable latitude during their closing arguments, the prosecutor’s
statements are not misconduct. The evidence in this case did not solely rest on the credibility of
the witnesses as there was a video of the entire incident that the jury viewed. Further, because
Idaho case law allows prosecuting attorneys to express their opinion as to the truth or falsity of
testimony when based upon the evidence, the comments at issue here were not misconduct. 9
III.
CONCLUSION
For the foregoing reasons, Montgomery’s judgment of conviction is affirmed.
Chief Judge GRATTON and Judge MELANSON CONCUR.
9
This is not to say we support the prosecutor’s behavior at trial, nor do we excuse or
encourage such conduct. We do not understand why prosecutors continue to jeopardize
otherwise clean convictions with this sort of behavior, particularly in light of this Court’s
previous holdings. In this regard, we understand Montgomery’s frustration.
21