dissenting. I respectfully dissent with the majority of this court because I cannot say the trial court abused its discretion in denying appellant’s motion in limine to exclude any evidence not disclosed to appellant’s attorney prior to the day of trial. The testimony of the attorneys in chambers indicates that the prosecuting attorney was under the honest but mistaken belief that by furnishing a copy of the requested information and witness list to the attorney for appellant’s codefendant, a copy would be given by him to appellant’s attorney. I do not excuse the prosecuting attorney from strict compliance with the discovery order entered by the court, but the attorney for appellant also has some responsibility in the matter.
The order of the court directed the prosecuting attorney to furnish the discovery information to appellant’s attorney by August 14, 1979, but when this was not done, appellant’s attorney did nothing about it until the date of trial on September 11, 1979. A phone call or letter to the prosecuting attorney, the court, or the attorney for the codefendant would undoubtedly have resulted in immediate delivery of the discovery information. Appellant’s attorney did not interview the arresting officers who obviously would be called as witnesses, but instead elected to wait in silence for the date of trial in hopes of excluding certain evidence and testimony or obtaining a continuance.
The majority opinion cites Williamson v. State, 263 Ark. 401, 565 S.W. 2d 415 (1978) and Williams v. State, 267 Ark. 527, 593 S.W. 2d 8 (1980), as being factually similar to this case, but I strongly disagree. In Williamson, supra, the conviction was reversed because the prosecuting attorney deliberately failed to make full disclosure, but there is absolutely no suggestion that the prosecuting attorney deliberately withheld discovery information in the case now on appeal. The facts in Williams v. State, supra, are also distinguishable because there the prosecuting attorney failed to disclose some critical information to the defendant’s attorney until the voir dire of the jury had been completed. The record in this case fails to disclose how the discovery information was critical to appellant’s defense or that he was prejudiced by the late disclosure. As appellant’s defense was that he was not at the scene of the burglary, it is difficult to see how pictures of the hole in the wall or a list of the officers who would testify would affect his posture at trial. Also in that case there was no evidence of dilatoriness on the part of the attorney for the defendant, as there was no way he could have known the undisclosed comment had occurred. Because I believe the trial court in this case acted within the discretion afforded him by Rule 19.7 of the Arkansas Rules of Criminal Procedure, I would affirm the conviction.
Fogleman, C.J., joins in this dissent.