concurring in part and dissenting in part:
I agree with Part II of the majority opinion, which upholds the constitutionality of section 18-3-403(l)(h), 8 C.R.S. (1978).
I respectfully dissent from Part III of the majority opinion which reverses the ruling of the trial court denying the defendant’s motion to introduce surrebuttal evidence and remands for a new trial.
I agree with that portion of Part IV of the majority opinion which disapproves of the prosecutor’s knowing failure to disclose false testimony of the complaining witness. However, while I concur in result, I believe the majority should have addressed the issue of whether the prosecutor’s failure to disclose constituted reversible error. I believe it did not.
The majority opinion correctly states that generally the defendant should be permitted to introduce surrebuttal evidence which tends to meet new matter introduced by the prosecution on rebuttal. People v. Brockman, 699 P.2d 1339, 1342 (Colo.1985): People v. Martinez, 181 Colo. 27, 28-29, 506 P.2d 744, 745 (1973). If the surrebuttal evidence does not meet new matter introduced by the prosecution on rebuttal, it is within the discretion of the trial court to allow or deny surrebuttal. Id. I respectfully disagree with the majority’s statement that, “[h]ere, there is no doubt that the People presented new matter on rebuttal.”
On cross-examination of the defendant, the prosecution asked the defendant what procedure was used to conduct “quick, look-see cursory examinations of the vagina.” The defendant replied that there was no specific textbook procedure for cursory, visual inspections. The prosecution then asked the defendant to explain his procedure. The defendant replied that the patient was on her back and that her legs were maybe three or four or five or six inches apart between the knees. The rebuttal testimony of the registered nurse, who had performed an examination of the complaining witness, was to impeach the defendant’s statement by showing that a cursory, visual inspection of the complaining witness’ vagina could not have been performed with her legs as close together as six inches between the knees. The testimony of the registered nurse did not constitute new matter.
The defendant’s claim that the prosecutor violated Crim.P. 16(I)(a)(l)(IV) (now (I)(a)(l)(III)), and Crim.P. 16 (III)(b), is with*132out merit. The rule requires the prosecutor to disclose to defense counsel,
any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons.
Crim.P. 16(III)(b) places parties under a continuing duty to disclose “additional material or information which is subject to disclosure.” I do not believe Crim.P. 16 applies to the rebuttal evidence at issue. Prior to the time the defendant testified that he performed the cursory gynecological examination with the complaining witness’ legs apart by only six inches between the knees, there was no reason to believe the prosecution planned to introduce rebuttal testimony. Moreover, the examination of the complaining witness by the registered nurse did not take place until after the testimony of the defendant. People v. Vollentine, 643 P.2d 800 (Colo.App.1982) (prosecution’s duty to disclose the identity of its rebuttal witnesses is inapplicable where rebuttal testimony is not introduced to refute a defense, but is introduced solely to impeach the credibility of a defense witness). Here, the evidence was introduced to impeach the credibility of the defendant as to the scope of his cursory, vaginal examination. Under these circumstances, I do not believe Crim.P. 16 applies.
I agree with the majority’s discussion in Part IV of the improper conduct on the part of the prosecutor in knowingly failing to disclose false testimony of the complaining witness. However, I disagree with the majority’s decision not to decide whether the prosecutor’s failure to disclose constituted reversible error. I believe it did not.
The defendant waived a jury trial and the case was tried to the court. The record reveals the victim testified she initially reported the alleged' assault during a telephone call placed from her home to her sister in California in the early hours of January 22, 1982, two days after the alleged assault. This testimony was consistent with information she provided in her affidavit in support of the defendant’s arrest warrant.
Six months after the trial ended, the victim was deposed in connection with a civil suit she filed against the defendant, and testified she did not call her sister from her home but called from her employer’s business, using his WATS line. She had informed the prosecutor of this discrepancy in her testimony on the same day after she testified in the criminal proceedings. After being told, the prosecutor did not divulge to the defense or to the court that the victim had testified falsely as to where she had made the call.
At the hearing on the defendant’s motion for new trial, it was stipulated that the facts, as stated above, were true. Following argument, the trial court denied the motion for new trial. Relying on United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the trial court, which sat as trier of fact, found that the false testimony would not have affected the judgment of the court in finding the defendant guilty.
A significant factor was the trial court’s dual role as trier of fact and law. Another factor of significance was the nature of the false testimony and its effect on the trier of fact had the trier known of its falsehood at trial.
The majority opinion cites Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (involving a trial by jury in which false testimony went to a deal struck between the witness and the prosecution). Here, the case was tried to the court. In addition, the prosecution’s improper conduct was more egregious in Napue because the prosecutor knew the testimony was false the moment it was elicited. Here, it was not until after the witness stepped down from the witness stand that the prosecution learned of the falsehood.
More significantly, the effect of the false testimony on the trier of fact was inconsequential. It concerned where the call originated; not whether the call was made and *133did not relate to the truth of the matter discussed over the telephone. The trial court clearly stated that the false testimony was error but that it was harmless beyond a reasonable doubt. The court found the victim to be credible as to the substantive issues.
Constitutional error is committed if the undisclosed evidence creates a reasonable doubt of guilt that did not otherwise exist. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1975). The court found that, beyond a reasonable doubt, the false testimony would not have affected the outcome and that the defendant received a fair trial. While the prosecutor’s failure to disclose the false testimony once she learned of it was a gross mistake in judgment, the non-disclosure was not sufficiently material to deny the defendant’s right to a fair trial. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1975); Graham v. People, 705 P.2d 505, 509 (Colo.1985) (“reversal is required unless the court is convinced that the error was harmless beyond a reasonable doubt”). The error in judgment on behalf of the prosecutor was harmless and would not substantially affect the rights of the defendant to have a fair trial.
The remaining issues raised by the defendant on appeal are without merit, and I would affirm the trial court.
I am authorized to state that Justice ERICKSON joins in this special concurrence and dissent.