concurring specially:
I agree with the majority that I.C.R. 16(g) does not require the district court to apply a per se exclusionary rule for failure to comply with discovery requests. I also agree that we cannot say on this record that it was an abuse of the trial court’s discretion to allow the prosecution to introduce evidence in this case. Accordingly, I join in the Court’s disposition of this appeal.
However, the requirements of the due process clause as explained in the cases of United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), make it clear that if the evidence which Buss specifically requested “might have affected the outcome of the trial” (Agurs, 427 U.S. at 104, 96 S.Ct. at 2400), or was “material either to guilt or to punishment" (Brady, 373 U.S. at 87, 83 S.Ct. at 1197), then Buss would be entitled to a new trial. It would not have mattered that the order was not signed by the judge, as long as the motion or order was served on the prosecuting attorney so that he knew what material was requested. That our state rules of criminal procedure do not contemplate discovery of these materials does not mean that the state may avoid the clear constitutional mandate set down by Brady and Agurs to turn over specifically requested material evidence.
However, neither the requested material nor a transcript of the preliminary hearing is in this record. Without these, we cannot gauge the impact of the failure to comply with the request. Such matters may be explored in a petition for post conviction relief, but they cannot be settled on this appeal because of the inadequacy of the record before us.