dissenting.
I.
The Court’s opinion, though generally sound, appears to have succumbed to the postulate that once an accused has been found guilty, it is justifiable appellate practice to look kindly upon what would in the abstract be readily discernible as the highly prejudicial error which it is. In particular, attention is drawn to this passage of the Court’s opinion which deals with the state’s introduction into evidence of a surprise witness just before final summation to the jury:
“In his case, the defendant presented evidence that he was highly intoxicated at the time he fired the shots in the direction of the police officers and testified that he did not intend to shoot at the police officers. Upon completion of the defendant’s case, the state called Mr. Reeder to the stand ....
“Mr. Reeder then testified: that he was an emergency medical technician in the city of Parma, Idaho; that he had responded on the ambulance call to the defendant’s residence on the morning of the shooting; and that en route to the hospital, the defendant made statements ‘to the effect that [he] had the officer in his sights, but the officer moved.’ Mr. Reeder further testified that while defendant's speech was somewhat slurred, in his opinion the defendant was only moderately intoxicated at the time. Thus, Mr. Reeder’s testimony was limited to that which tended to repel, counteract or disprove evidence presented by the defendant [i.e., rebuttal testimony].”
I cannot agree with the Court’s characterization of the testimony as rebuttal testimony, and beyond the decision of this particular case, a larger concern is the Court’s comprehension of proper rebuttal.
A.
In this case the statements which Reeder testified were made by Olsen are properly characterized as admissions, and are damaging in the extreme. This being the case, it was not necessary for the state to lay a predicate or foundation by questioning Olsen about his conversations with Mr. Reeder before Mr. Reeder testified in that regard. Furthermore, the fact that the state did go the foundation route by asking the defendant whether he had made the statements to Reeder did not transform Reeder’s case in chief testimony into impeachment evidence which could be admitted out of order in rebuttal as the trial came to a close. See Robinson v. Commonwealth, 459 S.W.2d 147, 149 (Ky.1970). “[The witness’] testimony involved an alleged admission on [the defendant’s] part, was clearly substantive in nature, and necessarily had to be introduced in chief.” Id.
There was never any question in this case that Olsen was the one who fired the shots. The only real issue at trial was Olsen’s intent at the time the shots were fired. By pleading not guilty, Olsen put the state on notice that he was going to claim that he did not intend to cause harm to anyone. I do not believe that the defendant’s reiteration of his denial of guilt and his attempts to establish the principal facts that purportedly support his claim, transform into rebuttal testimony evidence which should have been admitted in the state’s case in chief. The opinion of Justice Traynor, in People v. Carter, 48 Cal.2d 737, 312 P.2d 665 (1957), is persuasive in that regard.
“Section 1093(4) of the Penal Code provides that after the defendant has offered his evidence the prosecution may then offer ‘rebutting testimony only, unless the court, for good reason, in further*287anee of justice * * * ’ permits it to offer evidence upon its original case. In a sense all evidence that tends to establish the defendant’s guilt over his protestations of innocence rebuts the defendant’s case, but it is not all rebuttal evidence within the purpose of section 1093(4). The purpose of the restriction in that section is to assure an orderly presentation of evidence so that the trier of fact will not be confused; to prevent a party from unduly magnifying certain evidence by dramatically introducing it late in the trial; and to avoid any unfair surprise that may result when a party who thinks he has met his opponent’s case is suddenly confronted at the end of trial with an additional piece of crucial evidence. Thus proper rebuttal evidence does not include a material part of the case in the prosecution’s possession that tends to establish the defendant’s commission of the crime. It is restricted to evidence made necessary by the defendant’s case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt. See People v. Byrd, 42 Cal.2d 200, 211-212, 266 P.2d 505, certiorari denied 348 U.S. 848, 75 S.Ct. 73, 99 L.Ed. 668; People v. Nye, 38 Cal.2d 34, 38-39, 237 P.2d 1; People v. Avery, 35 Cal.2d 487, 491, 218 P.2d 527; 6 Wigmore, Evidence, 510-511, 516 (3d ed. 1940). A defendant's reiterated denial of guilt and the principal facts that purportedly establish it does not justify the prosecution’s introduction of new evidence to establish that which defendant would clearly have denied from the start.” 312 P.2d at 674-75 (emphasis added) (quoted in People v. Thompson [27 Cal.3d 303, 165 Cal.Rptr. 289], 611 P.2d 883, 898 (1980)).
In its brief the state argues: “The State did not discover the identity of Bruce Reed-er until the evening after the first day of trial. The State had already finished its case in chief. No opportunity to present his testimony except as rebuttal evidence existed.” An examination of the record, corroborates that the state learned of Reeder during the evening following the first day of trial, but, as I read the record, the state did not finish its case in chief until approximately 1:30 on the second day of the trial. Thus, the state errs in arguing that the evidence was not available to it during the state’s case in chief. Furthermore, the testimony of Bruce Reeder was unquestionably a “material part of the case in the prosecution’s possession that tend[ed] to establish the defendant’s commission of the crime.” The testimony of Reeder was the only testimony introduced at trial of statements made by the defendant which might be said to sustain the finding that he entertained an intention to injure or harm someone. It was improper for the state to hold this witness back and present him dramatically as its last witness before the case went to the jury. I also agree with statements of the Michigan court in the recent case State v. McGee, 68 Mich.App. 519, 243 N.W.2d 663 (1976), in which it honored the 1885 holding of an earlier Michigan court:
“‘[I]t is not proper to divide up the testimony on which the people propose to rest their case, and nothing which tends to prove the commission of the crime itself, or its immediate surroundings, can be classed as rebutting evidence under ordinary circumstances, if at all.’” 243 N.W.2d at 665.
B.
The Court in this case reasons that even if the testimony of Mr. Reeder was not rebuttal testimony, it was not improper to allow him to testify on the slim premise that the defendant had a fair opportunity to meet the evidence — to impeach or contradict the testimony. The Court cites as support for this proposition State v. Hewitt, 73 Idaho 452, 254 P.2d 677 (1953); State v. Orr, 53 Idaho 452, 24 P.2d 679 (1933); and State v. Mushrow, 32 Idaho 562, 185 P. 1075 (1919). I cannot agree.
The order of a criminal trial is specifically governed by I.C. § 19-2101, which provides:
“Order of trial. — The jury having been impaneled and sworn, the trial must proceed in the following order:
*2881. If the indictment is for a felony, the clerk must read it and state the plea of the defendant to the jury. In all other cases this formality may be dispensed with.
2. The prosecuting attorney or other counsel for the people must open the cause and offer the evidence in support of the indictment.
3. The defendant or his counsel may then open the defense and offer his evidence in support thereof.
4. The parties may then respectively offer rebutting testimony only, unless the court for good reason, in furtherance of justice, permit [sic] them to offer evidence upon their original case.
5. When the evidence is concluded, unless the case is submitted to the jury on either side, or on both sides, without argument, the prosecuting attorney or other counsel for the people must open, and the prosecuting attorney may conclude, the argument.
6. The judge must then charge the jury if requested by either party; he may state the testimony and declare the law, but must not charge the jury in respect to matters of fact; such charge must be reduced to writing before it is given, unless by the mutual consent of the -parties it is given orally.” (Emphasis added.)
This Court applied I.C. § 19-2101 in State v. Miller, 60 Idaho 79, 88 P.2d 526 (1939), a case in which the defendant was tried and convicted of the crime of operating a motor vehicle on a public highway while under the influence of intoxicating liquor. The Court reversed the judgment for several reasons, one of which was the improper admission of testimony upon rebuttal.
“The witness McConnell was also called on rebuttal and over the objection of defendant was allowed to testify that he saw defendant about 6 o’clock in the evening of February 5th and that he ‘was under the influence of intoxicating liquor.’ This evidence was competent as a part of the state’s case and should have been introduced in the case in chief. It was admissible in rebuttal only upon a showing of ‘good reason’ and that its admission would be ‘in furtherance of justice.’ ” 60 Idaho at 84-85, 88 P.2d at 528.
In this case, as in Miller, the trial court failed to require “good reason” for admitting testimony upon rebuttal which should have been a part of the state’s case in chief. Similarly, there was a failure to establish that the admission of the testimony would be in “furtherance of justice.” In fact, defendant adamantly contended the contrary. In the absence of such findings, the trial court erred in allowing Reeder to testify upon rebuttal. This is especially true in view of the fact that Reeder remained undisclosed up until the time he testified.
Whether the trial court is or is not required to make a finding of good reason and in furtherance of justice for the admission of testimony upon rebuttal which should have been introduced in the case in chief, the record itself should supply the bases for such findings. In this case such testimony was highly inappropriate at the close of the trial. In Hewitt, the Court stated:
“The record does not disclose that appellant was surprised or claimed surprise or was placed in a disadvantageous position or denied the opportunity of explaining the testimony complained about or of contradicting it or that he was in any way unprepared to do either; he did not seek a continuance to enable him to better meet such evidence .... ” 73 Idaho at 459, 254 P.2d 677.
Similar statements are contained in the other two cases cited by the Court. See Orr, 53 Idaho at 458, 24 P.2d 679; Mushrow, 32 Idaho at 564-65, 185 P. 1075. In none of the cases cited, however, was the testimony admitted as rebuttal testimony a material part of the state’s case in chief. Thus, I believe the substantial issue is not the vague and difficult almost academic question as to whether the defendant had the opportunity to meet the testimony, but whether he was unduly prejudiced by the admission of such evidence on the state’s final rebuttal at the close of the trial. The *289Court disposes of the proposition rather easily: “At trial, however, [the defendant] did not seek a continuance to enable him to better meet such evidence, nor did he specifically claim that he would be prejudiced by the admission of the testimony.” I see the 1939 Miller Court as being more learned and enlightened in the criminal practice field. That Court in two opinions saw that the improper procedure was prejudicial, and that was the end of it. That Court did not search for some hypothesis which would explain just how that which is obviously prejudicial by its very nature is prejudicial.
Although I might in an academic discussion agree with the Court that the defendant had an opportunity to impeach or contradict Mr. Reeder’s testimony, the introduction of prejudice, just as a bell once rung cannot be unrung, could not be made to evaporate by placing defendant back on the stand to deny that such statements were made. Moreover, I certainly would not conclude that the defense counsel was not taken by surprise and perhaps disoriented by this belated testimony from an undisclosed witness, or at the least disadvantaged by the use of Mr. Reeder’s testimony coming out of order and on rebuttal. Nor would I concede that the defendant did not specifically claim he was prejudiced by the admission of the testimony. The question begged by the Court’s view is how specific need one be? At trial, counsel for Olsen objected, and, as the Court sees it, was careless or unspecific. To my mind, however, he was not inarticulate:
“At this time, Your Honor, I am going to object to this. I think it is grossly improper rebuttal.
“The purpose of rebuttal is to rebut information or evidence presented by the defendant in the defendant’s case in chief.
“This man has nothing to do with any evidence the defendant presented. The only time in any occurrence he is intending to talk about was brought up was when Mr. Culet raised it on cross examination. We didn’t introduce any evidence on this. It’s not rebuttal.
“Moreover, his name has not been disclosed to us under the discovery order. I do not believe his name is endorsed on the information.
“Clearly the matters that he is intending to testify to are more apparently in the same line as these other people have testified to.
“This man could have been called in their direct case, and disclosed to us in a proper fashion rather than hidden, and then sprung out on rebuttal.
“I think it’s improper, and unfair.”
The defendant has continued his claim of prejudice in his arguments before this Court. In his opening brief the defendant argues that this case is like Schwartzmiller v. Winters, 99 Idaho 18, 576 P.2d 1052 (1978), in that the defendant was deprived of adequate time in which to prepare a defense and that the information withheld was of significant importance to his case and may have been material to the outcome of the case. He also argues that “by virtue of Mr. Reeder’s profession as a pharmacist and his training as an emergency medical technician, his opinion as to the degree of the defendant’s intoxication was likely to carry significant weight with the jury.” In his reply brief the defendant expands on this argument stating:
“Here the undisclosed witness undoubtedly affected the outcome of the trial. The testimony was dramatically introduced late in the trial, thereby magnifying its importance; it was offered by a witness who purported to have special competence in the evaluation of intoxication; and it concerned the most crucial issues in the case.”
The evidence introduced in this case was not evidence on an issue raised by the defendant for the first time in the presentation of his case in chief, nor was the evidence by any stretch of the imagination evidence of a collateral nature. On any view, prejudice is inherent in a case in which the state withholds until rebuttal evidence which was available to the state during the presentation of its case in chief and which is crucial to establishing an element *290critical to proving the commission of the alleged crime. There is no way that a defendant can adequately prepare to meet the state’s case if a material part of the state’s evidence is undisclosed and not presented until rebuttal. The principle is so plainly to be seen that it is undeserving of further comment.
Nor should the fact that the defendant did not seek a continuance be determinative in this case. Although a continuance may have allowed defense counsel time in which to seek out evidence to contradict or impeach the testimony of Mr. Reeder, it would not have lessened the prejudicial impact that resulted to the defendant from the perfectly timed disclosure. Moreover, one may properly wonder how many district judges would actually grant a request for a continuance (and how long a continuance would be allowed) with a sitting jury ready to deliberate? And, that is not to forget the practical aspect of the situation, totally overlooked in the Court’s opinion. To ask for a continuance can only, and necessarily would, have the automatic effect of heightening and emphasizing the prejudicial influence of the final state witness in the case— and most likely the final witness of the entire trial. Most attorneys of trial experience would make their objection, abide by the rulings, and hope for an enlightened appellate court, a court which is blessed with a thousandfold more time in which to ponder its ruling than is a trial court.
The defendant in this case prepared to defend and did defend the case believing that there was no one who would testify as to statements made by him indicating that he intended to harm someone. He could not, after the last witness had been called, go back and change the theory of his case, decide that it would be better not to testify on his own behalf, or change the manner in which the evidence on his behalf was presented. Thus, the fact that he might have had an opportunity to contradict or impeach the testimony of Mr. Reeder, to my mind does not remove the prejudicial effect of allowing Reeder to testify as a rebuttal witness.
It is not unlikely that the Court’s opinion today may encourage some prosecutors to intentionally reserve damaging evidence for rebuttal which more properly should be presented as part of the state’s case in chief. Hopefully other prosecutors will remember that they, too, are judicial officers.
II.
In this case, the defendant was convicted of two counts of assault with a deadly weapon and was sentenced to the maximum determinate term of five years on each count, the sentences to run consecutively. In addition, the trial court imposed a five year sentence pursuant to I.C. § 19-2520, to run consecutively to the other terms. The majority concludes that the trial court did not abuse its discretion by sentencing Olsen to a total determinate sentence of 15 years. If Olsen had been convicted in a trial free of prejudicial error, I might not disagree. Under the circumstances, however, I believe that the sentence was unduly harsh. I continue to adhere to the views expressed in State v. Warden, 100 Idaho 21, 26-34, 592 P.2d 836, 841-59 (1979) (Bistline, J., dissenting), and would reduce the sentence to five years.
I dissent