dissenting. I respectfully disagree with the majority view that the trial court did not commit reversible error when it allowed the State to impeach Tequila Hall over the objections of appellant’s counsel by playing a tape of a statement Hall gave to investigators John Colridge and Alan Jordan of the Miller County Sheriffs Office on May 11, 1998. I also agree with appellant’s contention that the trial court erred when it denied his request that Parker be prohibited from testifying after the State lost statements he gave on June 2 and 4, 1997, to Investigator Hays McWhirter and Deputy Troy Gentry of the sheriffs office. Therefore, I would reverse and remand on both points of the appeal.
I. Admission of Hall’s Statement as Extrinsic Evidence
During the State’s direct examination of Hall at trial, Hall testified that “I did not hear Marcus Threadgill talking about that night [the night of Roberson’s death], I didn’t overhear some conversation and I don’t remember talking to a police officer about that.” After counsel for the State informed Hall that he would play a tape to refresh her memory, Hall testified that “I know I talked to white officers Alan Jordan and John Colridge ... I don’t remember telling any of those officers that this defendant told me he shot that dude. If I said it, it’s not true.” The prosecution then indicated its intention to play the taped interview, State’s Exhibit No. 25, to the jury. Appellant’s counsel objected, citing Rule 613(b) of the Arkansas Rules of Evidence. The trial court overruled the objection, and the taped interview with Hall was played in the presence of the jury. After the statement was played, Hall repeated her testimony that the assertion to the investigators concerning Threadgill telhng her he shot Roberson was untrue. Nevertheless, the trial court permitted the State to introduce and play a tape of another recorded interview with Hall.
In that statement, Hall stated that on the night of April 30, 1997, Parker and appellant knocked on the door of her apartment and asked her to take them to the home of Parker’s sister, April Ross. Hall indicated in her statement that she dropped Parker and appellant at appellant’s residence and that Parker and appellant changed clothes in her car while she drove them home. The next day, Hall’s grandmother told her about Roberson’s body being found. Hall stated in her statement to the investigators that she surmised that appellant and Parker had come to her house from where Roberson’s body was found. At pages 94 and 95 of the abstract, the following exchange occurred between Investigator Alan Jordan and Hall:
Hall: She (Hall’s grandmother) told me where the car was found, over by Cooper Tire, so I figured they (appellant and Parker) had jumped the fence and came to my house, cause I’m the closest they knew and they knew I had a car, for me to take them home. So I waited until I seen them again, and I ask Marcus (appellant) what happened. Marcus said he didn’t know. He didn’t know nothing about it, so I think it was about a week later we went over there, and they got scare and everything, so me, Lucinda . . .
Jordan: Lucinda who?
Hall: Lucinda, I think it’s Florence. That’s his girlfriend. Me, Lucinda, Tory, and Stacy, I think Stacy had just got out of jail.
JORDAN: Stacy Collins?
HALL: Yea. We was over there talking and stuff, and Marcus told us he killed that dude, and that D’Wayne helped move him to the side of the road. I don’t know if Dante had anything to do with it.
JORDAN: All right. Who told you, or did Marcus tell you himself that he killed . . .
Hall: Yea, he shot that dude.
JORDAN: And said D’Wayne just helped move the body?
HALL: Yea. He said D’Wayne helped them get the body out the car or whatever.
Counsel for the State insisted that the taped statement was being offered “for impeachment” and because “it’s a prior inconsistent statement given by the witness. It is clearly admissible.” The trial court ruled the taped statement admissible over the Rule 613(b) objection raised by appellant’s counsel, stating, “It’s admissible for another purpose, and that purpose is to impeach with a prior inconsistent statement, which is allowed by the rules. She’s been given every opportunity to explain or deny the same.” The trial court later stated, “Even if it (Rule 613 (b)) applies, this is an admission of a party opponent, and subsection (b) of Rule 613 doesn’t apply if it’s a party opponent.”
Hall was plainly not a party opponent. The prosecution was against appellant, not Hall. Therefore, her taped statement was not admissible as an admission by a party opponent.
However, some members of the majority maintain that appellant’s counsel failed to properly object to Hall’s taped statement being played. They contend that because Arkansas does not follow the plain error doctrine, evidentiary objections must be specific in order to alert the trial court that error is possible. I believe appellant’s counsel made a sufficiendy specific objection to the playing of Hall’s taped statement in order to preserve error for appellate review. It was enough that appellant’s counsel stated, “We have an objection under Rule 613(b), where it states it is not permissible to impeach a witness by a statement.”
Granted, counsel could have been more specific. He might have said, “We object to the prosecution attempting to impeach this witness by use of a prior inconsistent statement after she has testified that if she told the investigators the defendant shot the victim, she was not telling the truth.” But counsel was not required to be that specific. Rule 103(a)(1) of the Rules of Evidence requires that objections to the admission of evidence be made timely and that they state “the specific ground of objection, if the specific ground was not apparent from the context. . . .” The trial court plainly understood that the objection was based on improper impeachment as shown by its statement that Hall’s taped statement was “admissible for another purpose, and that purpose is to impeach with a prior inconsistent statement.” Counsel for the State urged admission on the same ground.
The majority apparently believes that Hall’s taped statement was properly played to the jury to impeach her credibility because she testified that she did not remember telling “any of those officers that this defendant told me he shot that dude. If I said it, it’s not true.” I disagree. When Hall testified that she did not remember making the statement that appellant told her he shot Roberson, but that if she told the police that, she was not truthful, her credibility was impeached. By allowing the State to introduce the taped statement, the trial court permitted the State to prove, using extrinsic evidence, that Hall was a liar. But she had already admitted lying. A witness who admits during trial testimony that she made a prior inconsistent statement is impeached, and Rule 613(b) prohibits introduction of extrinsic evidence under these circumstances. See Kennedy v. State, 344 Ark. 433, 42 S.W.3d 407.
The trial court’s error becomes even more apparent when one realizes that it allowed the State to play a second tape of a May 14, 1998, investigatory interview with Hall despite the fact Hall had acknowledged making the first recorded statement, renounced her statement as untruthful, and explained why she bed during the first statement. There was no justification for admitting a second taped statement after Hall acknowledged having made the first statement and denied its truthfulness. Appellant objected to the second tape recorded statement (State’s Exhibit 26) as being cumulative and unnecessary. Appellant cannot change the grounds for a trial court objection on appeal and I do not refer to State’s Exhibit 26 as being a Rule 613(b) objection. Rather, State’s Exhibit 26 demonstrates the significance of the trial court’s basic error in admitting Exhibit 25, the first taped-recorded statement.
If the trial court’s evidentiary ruling was erroneous, we must consider whether the error was prejudicial to appellant, i.e., whether the evidence of guilt was overwhelming and the error slight. The trial court allowed the State to play Hall’s entire statement to the jury, not simply that portion dealing with the alleged admission by appellant about killing Roberson. The trial court also allowed the State to introduce the testimony of Sabrina Maxwell Herron that Hall told her the appellant had confessed to killing Roberson, despite appellant’s timely hearsay objection. The State now admits that the trial court erred in admitting Herron’s testimony because it was inadmissible hearsay. The prosecutor referred to Hall’s unsworn statements in closing argument. If Hall’s statement and Herron’s hearsay testimony are excluded, the only overwhelming evidence of guilt is the testimony of Christopher D’Wayne Parker, appellant’s co-defendant, who testified he saw appellant shoot Roberson. However, appellant emphatically objected to Parker’s testimony because the State violated Rule 17.1 (a) (ii) of the Arkansas Rules of Criminal Procedure. Because I believe the trial court erred in permitting Parker to testify, I would hold that its error in permitting Hall’s taped statement to be played to the jury in its entirety was prejudicial so as to compel reversal.
II. Violation of Rule I7.1(a)(ii)
Rule 17.1 (a)(ii) of the Arkansas Rules of Criminal Procedure mandates that the prosecuting attorney must disclose, upon timely request “any written or recorded statements and the substance of any oral statements made by the defendant or a co-defendant.” In order to invoke this rule, the appellant must show (1) that a timely request was made, (2) that the State failed to comply with the request, and (3) that there was resulting prejudice to the defense. See Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981).
Following a substitution of counsel and two continuances, a pre-trial hearing was held on February 3, 2000, and counsel for appellant requested that the State produce two taped statements that Christopher Parker had given to the sheriff s department on June 2 and 4, 1997. The statements, although referenced in the prosecutor’s file, were not physically part of the file. The prosecutor stated he would make a note of the request, but did not produce the statements before the date of trial. When the parties met for trial on February 22, 2000, twenty days later, counsel for appellant again requested the statements by Parker. Then the prosecutor disclosed, for the first time, that the sheriffs department no longer had the statements. Counsel for appellant asked the trial court to sanction the prosecution for the discovery violation by excluding Parker’s testimony. Although the trial court agreed the State had violated the spirit of the discovery rule, it declined appellant’s request to prohibit Parker’s testimony. Instead, the trial court indicated that it would allow the defense “broad latitude” during cross examination of the sheriff s officers as a remedy for the violation. The State did not argue at trial or on appeal that appellant’s discovery request was untimely. Rather, it contends appellant was not prejudiced by the discovery violation.
Our supreme court specifically addressed this problem in Williamson v. State, 263 Ark. 401, 565 S.W.2d 415 (1978), where the State failed to produce the statement of a witness that was available. The supreme court reversed the trial court’s failure to require the State to disclose the statement. Writing for the court, Justice PIow-ard stated:
We are persuaded that Rule 17.1 imposes a duty upon the state to disclose to defense counsel, upon timely request, all material and information to which a party is entitled in sufficient time to permit his counsel to make beneficial use thereof. Any interpretation of Rule 17.1 to the contrary would indeed make a farce of a rule which has as its purpose to reduce delays during trial and taken as a whole lending more conclusiveness and completeness in the disposition of criminal cases and disclosure...
We are further persuaded that appellant was not only entitled to the written transcription prepared by the state from the recorded statements, but appellant was entitled to discover the tapes not only because the tapes represented the best evidence, but without the tapes, appellant had no way of comparing the transcription in order to determine if the transcription was a correct reproduction of the recordings. Indeed, the statement as well as the tapes would have been most helpful to appellant in his cross-examination of state’s witnesses.
Id. at 405, 565 S.W.2d at 418.
Parker was not merely a witness. He was a co-defendant in the murder prosecution and the only eyewitness to the homicide presented by the State. Because there was no way for the defense to compare Parker’s trial testimony with his prior statements, appellant was prejudiced in cross-examination of Parker. No cross-examination of the sheriffs witnesses coiild replace the loss of Parker’s statements because the statements and tapes were needed in order to establish the circumstances surrounding Parker’s interrogation.
In Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988), the supreme court reversed and remanded a conviction for aggravated robbery after the trial court denied appellant’s motion to suppress a statement containing his confession. The confession was recorded on a micro cassette and transcribed by a police secretary. However, the confession was erased when the tape was reused; thus, the State was unable to provide the appellant with the recording of the confession in order to compare the recording to the transcript. The appellant moved to suppress the statement, specifically citing Rule 17.1 (a)(ii) and its decision in Williamson, supra. Rejecting the State’s argument that the trial court error was harmless, Justice Dudley, writing for the supreme court, stated:
The prejudice lies in the fact that the recording was the best evidence, and that without it, the defendant had no way of determining if the transcription was an accurate reproduction of his recorded statement. It was established that the transcription was not perfect, although the errors that were pointed out were admittedly only typographical. In any event, we do not require an appellant to show prejudice when it would be impossible as a practical matter for him to do so.
Id. at 389, 757 S.W.2d at 934.
Here, appellant’s counsel was deprived of the actual recording of Parker’s statements as well as any transcripts. Parker testified in a jury trial that began February 22, 2000, more than two and a half years after the statements were made. Without the statements, counsel for appellant could not know whether Parker’s trial testimony was consistent with anything he said earlier. Appellant’s counsel certainly could not know whether the witnesses from the sheriffs department were testifying accurately, not to mention truthfully, concerning anything Parker told them in those statements.
There is no practical difference to the defense of a murder prosecution whether the State violated the discovery mandate of Rule 17.1 (a) (ii) due to negligence, incompetence, or mendacity. The effect of the violation was to deny appellant and his counsel access to critical information obtained from the chief prosecution witness. Had the trial court determined that Rule 17.1 was violated by the prosecutors such that sanctions for contempt were appropriate, imposing that sanction would not have repaired the damage done to appellant’s ability to cross examine Parker and the investigators who testified about Parker’s statement. Rule 17.1 exists to ensure that the defense has access to information, not to uphold the trial court’s power. I see no reason why the State should be allowed to violate the discovery requirement and deny persons accused of crimes vital information that is plainly essential to effective trial preparation and cross examination.
It is not unprecedented to preclude a party that violates discovery rules from introducing evidence or calling a witness. Rule 37 (b) (2) (B) of the Arkansas Rules of Civil Procedure plainly permits the court to “make such orders in regard to the failure as are just ...” including “[a]n order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence.” That rule does not require a finding of willful or deliberate disregard under the circumstances before sanctions may be imposed for failure to comply with the discovery rules. See Viking Ins. Co. v. Jester, 310 Ark. 317, 836 S.W.2d 371 (1992); Cook v. Wills, 305 Ark. 442, 808 S.W.2d 758 (1991); Tricou v. ACI Mgt., Inc., 37 Ark. App. 51, 823 S.W.2d 924 (1992).
There is no excuse whatsoever for trial and appellate judges to treat the discovery obligation prescribed by Rule 17.1 of the Arkansas Rules of Criminal Procedure with less respect or to otherwise operate as if the discovery interests of persons accused of crimes are somehow less important than those of persons involved in civil litigation. As long as the consequences of violating Rule 17.1 operate to disadvantage criminal defendants, we have no reason to expect that the violations will decrease, whether they result from incompetence, negligence, honest mistake, bad faith, or inadvertence. If we were to reverse and remand this case for new trial with instructions that the prosecution be prohibited from calling Christopher Parker as a witness until the defense was provided the recordings and transcripts of his two pretrial statements, I suspect that the prosecution would be highly motivated to locate and produce the recordings and statements. While doing so might create other issues (such as explaining why the statements could not be produced earlier and why the recordings and transcripts should be deemed valid), those difficulties should properly be suffered by the prosecution as an indirect result of failure to comply with the discovery rule.
Conclusion
Therefore, I would reverse and remand on both points. Specifically, I would hold that the trial court abused its discretion and committed prejudicial error by allowing the State to introduce extrinsic evidence of a prior inconsistent statement by Tequila Hall after Hall testified that the prior statement was untrue. I would also hold that the trial court erred when it refused to exclude Parker’s testimony.