dissenting.
I respectfully dissent. As the majority points out, the purpose of discovery is to provide both parties with the maximum possible information before trial, and when a discovery order has been violated, the choice of remedy lies within the sound discretion of the trial court. (See majority opinion p. 752 and the cases cited therein.) I do not agree that the trial court in this instance has abused that discretion.
Generally, the remedy in a case where a party has failed to comply with a discovery order is a continuance. However, evidence not disclosed may be excluded if a party has blatantly and deliberately refused to comply and prejudice has resulted. Robinson v. State, (1988) Ind., 450 N.E.2d 51.
*754The majority contends that the evidence here falls short of demonstrating bad faith by Borst.
At the hearing on the State's motion in limine, Evans testified that:
1) until six weeks prior to the hearing he had lived at 416 West Lexington Avenue and had lived there approximately ten months;
2) Borst had visited Evans at that address at least twice;
3) he had owned a business at 115 East Lexington until January of 1982, and Borst had been an employee of his at that address;
4) he had corresponded with Borst while Borst was in jail, writing to Borst onee and receiving two letters from Borst, the second of which he received approximately three weeks prior to the hearing;
5) he had visited Borst in jail approximately three times, the last of which occurred after the date set for completion of discovery; and
6) Borst had never asked him to contact Ms. Graham, his attorney.
This clearly demonstrates that Borst not only knew how to locate Evans, but in fact, had contact with him.
By notifying the State two days prior to the trial date that Evans had been located, prejudice did result. The State did not have ample time to pursue the information received from Evans, a witness held in abeyance by Borst and thrust upon the State at the last minute. Borst should not be allowed to benefit from such actions. Otherwise, why does our legal system have rules governing discovery or give trial courts the power over sanctions for breaking those rules?
Borst's exhibition of bad faith and blatant misconduct is not to be condoned. The trial court's granting of the State's motion in limine and the denial of Borst's second request for a continuance were justified. No abuse of discretion occurred. I would affirm the trial court's decisions.