dissenting.
I dissent to the grant of rehearing.
Initially, I should note that had the record supported the conclusion that the state had deliberately withheld the fingerprint evidence from Lewis, I would have no trouble in granting a new trial. The record, however, does not support that conclusion. Rather it appears that either the trial deputy or the assignment system used in the prosecutor’s office was merely negligent.
Even so, had the trial judge elected to exclude the fingerprint evidence2 I would support that decision. He did not. He chose, instead, to admonish the prosecutor, and I assume that his message was conveyed throughout the prosecutor’s office.
As the majority recognizes, when the court in the exercise of discretion decides to allow evidence although discovery orders have been violated, the normal remedy is continuance. The majority on rehearing appears to place considerable reliance upon the fact that although the state offered to agree to a continuance when the court ruled that it would allow the evidence, the court stated that it would not grant a continuance at that moment (although it would consider one after the defense had the opportunity to interview the fingerprint expert over the lunch recess). To me the more critical feature is that Lewis did not request a continuance either then or at any later time. Not being as omniscient as the majority, I am unable to say that such a request would have been futile.
Finally, the majority concludes that the delay in disclosing the fingerprint evidence prejudiced Lewis in his consideration of a plea agreement. The agreement had been proposed by the state but withdrawn before the commencement of trial. To his credit, the trial judge required the state to renew its plea offer when the fingerprint evidence became known. The majority opines that Lewis and his attorney only had ten minutes or so to reconsider, but, then, the only new factor was knowledge of the fingerprint. Be that as it may, no issue was presented in this appeal concerning plea negotiations or the consequences of the discovered fingerprint thereon.
In sum, the state’s pretrial preparation in this case was certainly sloppy, and the state deserved the strong rebuke it received from the trial judge. On the other hand, one of the law’s ancient metaphors is that encountering a chuckhole in the road does not provide an adequate reason for commencing the journey all over again. Furthermore, it should be recalled that, as reported by the majority, Lewis was observed inside the building by a golf course employee and was apprehended by police as he fled. I would deny rehearing and affirm the conviction.
. While photographs are also mentioned in appellant’s brief, no argument was presented specifically dealing with any photographic evidence.