dissenting.
The majority levies a stark penalty against the State by reversing the decision of the trial judge. The effect of today’s decision will be that N.D. will face charges in the juvenile division which will lose jurisdiction over him in about four years, as N.D. is now age seventeen. This is despite the fact that the statements of the two witnesses in dispute were provided to the defense attorney a week prior to the transfer hearing, and the trial judge offered defense counsel an opportunity to talk to the witnesses during the transfer hearing. Because I find insufficient prejudice to N.D. under the process followed by the trial judge and, thus, no abuse of discretion in allowing the witnesses’ testimony, I would affirm his decision to deny a transfer of this case to the juvenile division.
The procedural history of this case proves my point. As a result of N.D.’s motion to compel, the trial judge ordered that the State to produce its entire file, including “everything 11fi[the State] intends to introduce into evidence at trial,” to N.D. by August 18, 2010, one week before the scheduled hearing on his motion to transfer his case to the juvenile division. The judge then said that anything else that came up would be addressed on an “item by item basis.” N.D. takes issue with the fact that the State added two additional witnesses, Pettis and Tackett, to the witness list the afternoon before the transfer hearing was scheduled to take place, even though his counsel was given the witnesses’ statements a week before the hearing.
The first additional witness, Pettis, was N.D.’s cellmate at the Jack Jones Juvenile Justice Detention Center at the time N.D. allegedly broke out of the facility. The second witness whom N.D. objected to was Tackett, who was in the car that N.D. allegedly stole from a gas station after the escape. At the start of the transfer hearing, N.D. objected to the State’s calling Pettis, arguing that the State failed to comply with the motion to compel because it added Pettis to the witness list the afternoon before the hearing. N.D. also argued that he was deprived of the right to cross-examine Pettis effectively because there was no background information on Pettis in the file. The State responded that there was a statement from Pettis contained in the file given to defense counsel and that one of N.D.’s counsel could speak to Pettis while the hearing was being conducted. N.D.’s counsel admitted that Pettis’s statement was in the file but refused the opportunity to speak to him while the hearing was ongoing.
After an objection was made to the testimony of Pettis and Tackett, the trial judge ruled that the testimony was admissible after determining that Pettis’s statement was given to |1fiN.D. in compliance with its earlier orders. In addition, the judge stated, “I’ll give you time to interview him or give you extra latitude when you cross-examine him.” That was the correct remedy. In the context of criminal trials, this court has ruled that the failure of the State to disclose a witness can be remedied by permitting the defendant to interview the undisclosed witness. See, e.g., Burton v. State, 314 Ark. 317, 862 S.W.2d 252 (1993). This case deals merely with a hearing to determine which court had jurisdiction of the case. It was not the trial of a criminal or delinquency charge.1
The second witness, Tackett, was also added the day before the transfer hearing. Tackett was in the car that N.D. allegedly stole from a gas station during his flight from the detention center. Her inclusion as a witness can hardly have been a surprise to N.D. Tackett’s statement, like Pet-tis’s, was included in the discovery the court ordered the State to produce by August 18, 2010, which was done a week before the hearing. Tackett had been listed on the incident reports and in the criminal information as the victim of the aggravated robbery. After hearing argument from both sides on the ability of Tackett to testify, the trial judge allowed the testimony, finding that Tackett “was disclosed in the discovery,” and permitted N.D. “all the latitude you need in your cross-examination.” Given that N.D. acknowledged that Tackett’s statements had been provided in discovery, this determination was not an abuse of discretion. See, e.g., Davis v. State, 318 Ark. 212, 218, 885 S.W.2d 292, 295 (1994) |17(holding that the trial court did not err in permitting a sheriff to testify as a witness despite that fact that his name did not appear on the witness list because the defense had been given a copy of the sheriffs statement and was on notice he was a potential witness).
Both Pettis and Tackett were obvious witnesses for the State, and N.D. has utterly failed to show that either was a surprise to defense counsel because both were disclosed in the court-ordered discovery. Moreover, N.D. fails to show how he was prejudiced by the testimony of Pettis and Tackett, since he had their statements, which were given to law enforcement, for at least a week.
The majority opinion says the State “blatantly violated” Rule 17.1, which requires the prosecutor to provide the names and addresses of all witnesses. The State complied with Rule 17.1. It is telling that defense counsel does not cite Rule 17.1 in its brief on appeal. Is the majority now amending Rule 17.1 to fix a time limit for providing witness names?
The majority also asserts that the State violated the trial judge’s directive to comply with discovery by August 18, a week before the transfer hearing. Not so. The statements of Pettis and Tackett were provided at that time, and defense counsel had ample opportunity to engage in their own investigation of the statements provided one week before the hearing.
The majority also states that the case of Davis v. State, 318 Ark. 212, 885 S.W.2d 292 (1994), is inapposite. Again, not so. The Davis case stands clearly for the proposition that when a witness’s statement is provided to defense counsel, there is no prejudice by the fact that the witness is left off the witness list. That is precisely the situation we have in the case before us.
| iSBy today’s decision, the majority has usurped the role of the trial judge and applied an exclusionary rule for two state witnesses. Moreover, the majority has claimed that the trial judge, who has lived with this case and managed it, abused his discretion. To the contrary, it appears to me that the trial judge followed our law and fashioned an appropriate remedy.
Because defense counsel had the statements of Pettis and Tackett a week before the juvenile-transfer hearing to decide jurisdiction and because, at the hearing, defense counsel refused to interview the witnesses at the trial judge’s suggestion and because defense counsel made no request for a continuance, I would affirm the trial judge’s decision to permit the testimony of each witness. Clearly, that decision was not an abuse of discretion. I respectfully dissent.
GUNTER and BAKER, JJ., join this dissent.
. The juvenile-transfer hearing is a jurisdictional hearing for the judge to decide which division has jurisdiction — adult criminal division or the juvenile division. It is a special proceeding set by statute at Arkansas Code Annotated section 9-27-318 (Repl.2009).