concurring.
I agree with the court’s disposition of the Quinto issue. However, I cannot agree with the court’s treatment of O’Neill’s claim that he was prejudiced by a discovery violation. It seems that the effect of the tape in O’Neill’s case is virtually indistinguishable from the effect of the untimely disclosure of the witnesses’ statements in Stevens v. State, 582 P.2d 621 (Alaska 1978). Under the circumstances, if there was error, it was incurable at the time O’Neill first learned of the tape. Williams v. State, 629 P.2d 54, 59 (Alaska 1981); Stevens v. State, 582 P.2d 621, 624 n. 9 (Alaska 1978).
I am nevertheless satisfied that there was no discovery violation in this case and therefore join in the decision to affirm. The tape constituted a discoverable recorded statement under Alaska Rule of Criminal Procedure 16(b)(l)(i) and 16(b)(2)(H). However, it is undisputed that the prosecutor and his staff did not know of the tape until trial, and that the defendant was promptly notified at that time. The existence of a discovery violation would depend on a finding that Officer Irwin’s knowledge of his tape was imputed to the prosecutor. Alaska R.Crim.P. 16(b)(4). We discussed this provision in Russell v. Anchorage, 626 P.2d 586, 590-91 n. 14 (Alaska App.1981), where we said:
[UJnder the provisions of Criminal Rule 16(b)(4), the knowledge of the officer ... is in effect imputed to the prosecution. Alaska R.Crim.P. 16(b)(4) provides, in pertinent part:
(4) Information within Possession or Control of Other Members of Prosecuting Attorney’s Staff The prosecuting attorney’s obligations extend to material and information in the possession or control of
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(ii) any others who have participated in the investigation or evaluation of the case and who either regularly report or with reference to the particular case have reported to his office.
Irwin, the investigating officer, reported to the prosecutor about the investigation in general. I believe the phrase “reports to the prosecutor” refers specifically to information such as the tape recording in this case, provided the recording is made in furtherance of the officer’s law enforcement duties. In this regard the rule simply applies the general law of agency. Knowledge of an agent is imputed to the principal if it concerns a matter about which the agent is obligated to give the principal information. Restatement (Second) of Agency § 272 (1958). “The agent must have a duty to reveal the information which he has. It is not enough that the agent has a duty in relation to the subject matter .... ” Restatement (Second) of Agency § 275 comment c (1958).
Like the officer in Russell, Irwin was under a duty to reveal any information he gathered within the course and scope of his employment regarding the respective offenses of Olds and O’Neill. On the record before us, recording conversations with O’Neill and Olds was not within his employment, however, and consequently Irwin was not under a duty to disclose the fact that he had recorded the transaction to the prosecutor. Under these circumstances Irwin’s knowledge about the tape recording was not imputable to the prosecutor. The prosecutor’s failure to learn of the tape and notify O'Neill of its existence before trial did not constitute a discovery violation.