dissenting:
A strong showing has been made by the defense indicating that the State withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). Because of the material nature of such evidence, I conclude that Steese’s conviction should be reversed and that he be afforded a new trial.
In Brady, the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87. Evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985). The Bagley Court further concluded that a defendant’s due process rights could be violated even where the defendant did not request such evidence. 473 U.S. at 682. Further, once a reviewing court has identified constitutional error pursuant to Bagley, a new trial is warranted without additional harmless error analysis. Kyles v. Whitley, 514 U.S. 419, 435, 115 S. Ct. 1555, 1566 (1995).
During the days prior to trial, the State flew witness Richard Rock from his home in Pennsylvania to Las Vegas to confer about his relationship and telephone calls with Steese. After conferring with Rock, the deputy district attorneys sent him back to his *501home to secure from the telephone company copies of his telephone records and return immediately with them to Las Vegas. This Rock did.
The telephone records were important because Steese claimed that he was in Idaho when the murder occurred on the evening of June 3rd or early June 4th. Rock stated in his affidavit that he had telephone conversations with Steese, who was in Idaho at about that time. The deputies reviewed the telephone records, talked further with Rock, told him he was not needed as a witness, and that he should return home. While Rock spoke briefly on the telephone with Steese’s defense counsel the night prior to his departure. Rock stated in his affidavit that he was pressured to avoid any communication with Steese’s defense counsel.
Both the prosecutor and Rock knew that the defense attorney wanted to speak with Rock. Pressuring an important witness to avoid communicating with defense counsel, where the State is seeking the death penalty, strikes me as unfair and “sharp” practice by the prosecutors.
The State was obligated to disclose two items of information received from Rock. First, the telephone records indicate that two collect telephone calls were placed from Nampa, Idaho to Rock. One of the calls was placed on June 3rd and the other call was placed on June 5th. While Rock stated in his affidavit supporting the defense motion for a new trial that he believed the first collect call he received from Steese in Idaho was on June 5th, he also stated that “I can say with a great degree of certainty that all of the collect calls which appear on my phone bills for May and June of 1992 were made by Fred Steese, aka Fred Burke.” (Emphasis added.) This provided strong evidence that Steese was in Idaho at the time of the murder as he claimed; however, the prosecutors sent the witness home without notifying the defense of these facts or the telephone records. The State had the clear obligation to produce the phone records for the defense because they were exculpatory and bolstered Steese’s defense theory. Assuming Rock told the prosecutors that the collect telephone calls were from Steese as he declares in his affidavit, the State also had an obligation to present this exculpatory statement to the defense.
The second item of information the State did not disclose to the defense also came from Rock. This was Rock’s statement that he did not recall Steese telling him that the victim had been stabbed one hundred times, and that he did not convey this information to the Las Vegas detectives. This was an important fact to the State because the detectives testified that Rock told them that he had heard this from Steese, and Steese could have only received this *502information from the crime scene itself, because the number of stab wounds was never made public.
The State made much of the fact that Steese knew the victim had been stabbed numerous times, although such information had never been made public. While testifying during trial, Detective Jackson stated that “I had learned that [Steese] had said that [the victim] had been stabbed over a hundred times.” Information pertaining to Rock’s complete refutation of this comment would have been extremely helpful to the defense in examining the detective and, if necessary, calling Rock to disavow hearing this from Steese and telling it to Detectives Jackson and Scroggin. In his affidavit, Rock specifically stated that he informed the prosecutors that he had never made this comment and they became angry with him for so doing.
While the deputy district attorneys generally refute the assertions that they did anything improper, they do not specifically deny the above stated facts about the telephone calls and the victim being stabbed one hundred times. Even if they were to refute these facts, the State had an obligation to inform the defense of any exculpatory information received and, at the very least, this included the telephone records and Rock’s recantation of ever conveying the “one-hundred stabs” information.
I conclude that excluding such evidence from the trial made the jury verdict unreliable and uncertain as to what the result would have been had this information been produced, and I would reverse. See Kyles, 514 U.S. 419, 115 S. Ct. 1555 (1995). At the very least, I would remand this case for a full evidentiary hearing on the issues presented by the motion for a new trial. When critical facts are in dispute, issues should be decided by testimony given under oath and followed by cross-examination, not on affidavits. Rock’s affidavit directly conflicted with some of the statements made by the deputy district attorneys and it is unclear whether Rock informed the deputies of all the facts stated in his affidavit. A remand for an evidentiary hearing would ensure that all important facts were disclosed and the district judge could assess the credibility of the witnesses and the strength of their factual assertions. Therefore, I must respectfully dissent.