concurring.
I concur in the result but do not agree with the majority opinion that the failure of discovery problem was caused by the act of trial defense counsel. New appellant counsel for defendant has not furnished this court with a copy of defendant’s motion for discovery under Rule 25.08. We cannot determine what information was requested of the State in the motion for discovery and for that reason cannot find trial court error in denying relief for failure of the State to produce under defendant’s motion for discovery. Further, the two witnesses called by the State were endorsed on the Indictment. The existence of the witnesses was not a surprise.
Discovery problems in criminal cases could and should be easily avoided. The lesson of this case should be prevention of untimely disclosure or failure of discovery problems. See State v. Stark, 651 S.W.2d 503 (Mo.App.1983). The source of the problem in the present case was a mechanical mistake. Appellant filed a timely request for discovery under Rule 25.03. The State responded by a letter inviting defense counsel to appear at the office of the Prosecuting Attorney to obtain a packet envelope containing the requested information. The Assistant Prosecuting Attorney, “checked the police report (myself) prior to putting it into the discovery envelope and prior to leaving it at the front desk ... that’s the complete entire report that the State has in connection with this case”. Defense counsel told the trial court he received only a statement of the defendant in *595the nature of a confession but not the complete police report which contained the names of witnesses and their statements. There was no receipt which described the materials produced from which the trial court or this court could determine what was received by defense counsel. There is no reason not to presume good faith on the part of both the Assistant Prosecuting Attorney and defense counsel. As a result we conclude that the Assistant Prosecuting Attorney prepared to furnish and intended to furnish a complete file and full disclosure to defense counsel but defense counsel received only a part of the material. As a result of a casual procedure the trial court was faced with a problem at the time of trial which could have been avoided by the use of a receipt describing the contents of the discovery packet or by filing a copy of the materials or a description of the materials in the court file in the same manner as in a civil proceeding. Under those circumstances the trial court could consider the receipt or the court file to resolve any dispute of the sufficiency of the disclosure.
In the present case the trial court referred to the record and observed a copy of a letter from the Prosecuting Attorney’s Office to defense counsel in response to defense motion for discovery. The letter invited counsel to appear and obtain the information. The letter did not describe the materials to be produced. Defense counsel did receive a copy of defendant’s statement which indicates he did respond to the letter. The letter was dated December 28, 1984 and the trial began March 25, 1985. The trial court denied relief without explanation.
As a result of the breakdown in discovery defense counsel had not prepared to defend against the testimony of witnesses whose statements were contained in a police report which was not received by defense counsel. Under these circumstances no fault should be attached to defense counsel in failing to prepare to defend against evidence which was not received. If the evidence was requested and not received then the fault is in the procedure and the possibility of prejudice to the defendant was the result. The length of time between the breakdown in discovery and the date of trial is immaterial to considerations of fault and the possibility of prejudice. Moreover, fault is not the issue. The issue is prejudice to the defendant’s right to a fair trial with the assistance of effective and prepared counsel. In the present case two critical witnesses were allowed to testify against defendant and the nature of their testimony was not received in response to defendant’s motion for discovery until ten minutes before trial. We have no record on the claim of exculpatory medical evidence that may have been disclosed in the full police report. The trial court made no finding on the question of adequacy of discovery.
It is obvious that the procedure placed the trial court in an untenable position. On the one hand all arrangements had been made for trial and a continuance would have been an imposition on the parties, witnesses and the court. On the other hand defendant’s right to a fair trial required a continuance if the court could determine there was untimely disclosure. In State v. Stark, 651 S.W.2d 503, (Mo.App.1983) we suggested that compliance with criminal discovery under Rule 25.03 should be “to the court and opposing counsel”. If that procedure were adopted in criminal cases disputes on what was produced or received could be resolved by the record. In the alternative the materials to be received could be described in the letter sent to defense counsel with a copy in the court file or a receipt describing the materials produced could be obtained. The suggestion is that a written record would alert counsel for both parties and be available to the court if necessary.
I find no manifest injustice in this case. Defendant’s confession was obtained under circumstances that indicate he was well treated and his legal rights fully respected in making the statement.