No. 13475 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

STATE OF MONTANA,Plaintiff and Respondent,

CARL GAFFORD, Defendant and Appellant.

Appeal from: District Court of the Fourth Judicial District, Honorable

## -, Judge presiding. Counsel of Record: For Appellant: Edward A. Cummings argued,Missoula, Montana For Respondent: Hon. Michael Greely,Attorney General, Helena,

Montana DennisMoreen argued,Assistant Attorney General,

Helena,Montana Richard P. Heinz argued, County Attorney, Polson,

Montana

Submitted: January 13, 1977 Decided:

# -MAY 31977

Filed:

# BN 3lgnMr. Justice Frank I. Haswell delivered the Opinion of the Court. Defendantwas charged with two counts of sexual intercourse without consent causing bodily injury. Following a jury trial in district court, Lake County, defendant was convicted of both counts. Judge Jack L. Green entered judgment sentencing defendant to consecutive 20 year terms in the state prison on each count. Defendant appeals from the judgment of conviction. The evidence at trial disclosed that on the evening of June 29, 1975, the victim went to the Diamond Horseshoe, a Polson area bar. She was accompanied by her sister Charlotte. Another sister, Debbie, later joined the two girls at the Diamond Horseshoe. While at the bar, the victim noticed defendant Carl Gafford motion to her from across the dance floor. Defendant

wasmarried to thevictim's sister Debbie. The victim left the table where she and her two sisters

were seated and joined defendant. The two conversed for a few minutes and thereafter left the bar. According to the victim, defendant asked her to go for a ride and talk over the problems he was having with her sister. Defendant denied this. In any event defendant hid his motorcycle near a rural dirt road outside Polson and joined the victim in her car. They then drove to a bar near Dayton,Montana and had two beers each. When they left the bar in Dayton,defendantpurchased a bottle of wine with the victim selecting the brand. They drove around the countryside drinking the wine and listening to the car stereo. Sometime around midnight as they

were returning to Polson,defendantwho was driving the car stopped alongside the highway in order to relievehimself. Thereafter as defendant attempted to drive the car back on the highway, the car became stuck. The victim became alarmed that her car had been damaged and an argument followed. At this point the evidence is conflicting as towhether the defendant struck, choked,slapped or sat on the victim. She testified shewas forced to accompany defendant into a nearby field where shewas subjected to sexual intercourse without her consent. She testified defendant slapped her around and struck her on the nose with his fistwhereby she suffered bodily injury. Defendant testified that no sexual intercourse took place on this occasion. Thereafter defendant and the victim returned to the stuck automobile. A passing motorist stopped and with the aid of a rope freed the car. Defendant and the victim then continued toward Polson and stoppedwhere defendant had previously hidden his motorcycle. Both the victim and defendant testified that sexual intercourse then occurred. Defendant testified the intercoursewas with consent, while the victim testified it

was without her consent and that she suffered bodily injury. The victim returned home and was examined the following day by Dr. Coriell, the family physician. The examination revealed several bruises and abrasions on various parts of her face and body. Tests showed the presence of sperm in her vaginal tract. The Lake County attorneywas notified. On June 30, 1975, the county attorney filed a complaint in justice court charging defendant with two counts of sexual intercoursewithout consent. Defendantwas arrested the same day, the public defender was appointed to represent him, bail

was fixed and defendantwas released onbail. Subsequently defendantwaived preliminary hearing and was bound over to district court. On July 30, 1975, the county attorney filed an information in the district court charging defendantwith two counts of sexual intercoursewithout consent during which the victim suffered bodily injury. Defendant appearedwith the public defender,was arraigned and pleaded "notguilty" to each count,waived his right to a speedy trial, and was released on bail previously posted. On February 4, 1976, the district court set the date of March 1, 1976 for jury trial. On February 6,new counsel for defendantwas substituted for the public defender. On that

samedate defendant's new counsel filed a written motion to require the state, among other things toprovide defendant with

a list ofwitnesses intended to be called by the state at trial, to require the state to produce "all documents,papers, or things which the state intends to introduce into evidence at trial", and all pictures of the victim or of "any item or locale connected with the events upon which these charges were based." The district court granted all thesemotions. On February 17,defendant's counsel filed a written notice to take the deposition of the victim and to secure "the

names and addresses of persons who have information relevant or material to a determination of the facts surrounding the present charge." The motion of the state to depose the victim was granted and the county attorney assured the court "thatto the extent that any names of witnesses who do become known to the State,that they will be turned over to" defense counsel. The deposition of the victim was taken on February 23. She stated X-rays had been taken of her nose. She further testified these X-rays were taken at the request of the examining physician, Dr. Coriell. At least oneweek prior to trial,both the county attorney and defendant's attorneywere in possession of a written report by Dr. Coriell thatmade no mention of X-rays or possible fractures. At the time of the deposition the victim authorized Dr. Coriell to releasemedical information including tests to defense counsel. The trial began on Wednesday, March 3. On theweekendof March 6-7,the county attorney telephoned defense counsel and disclosed the existence of X-rays of the victim taken the day following the alleged crimewhich disclosed a nondisplaced fracture of the nose. OnMonday, March 8,when the trial reconvened,the county attorney moved to enter the name of Dr. 

### avid Dahlgren, the radiologistwho examined the X-rays, as a witness for the state. Defense counsel objected and requested that in the event themotion was granted a continuance of oneweek to have the X-rays evaluated by an independentmedical expert. A continuance of one day was granted by the court. Testimonywas concluded on March 11 and the casewas submitted to the jury. The jury returned a verdict of guilty

on both counts. Judgmentwas entered. Defendant appeals from the judgment. Defendant raises three specifications of error:

(1)Denial of defendant's motion formistrial during jury selection based upon nonresponsive and prejudicial answers of two prospective jurors. (2)Reversible error in permitting impeachment of defendant based on a prior conviction of a felony. (3)Reversible error in permitting the state to add the

name of the radiologist as an additionalwitness for the state in the middle of the trial. Directing our attention to the first specification of error, the record discloses that at the beginning of the voir dire examination of prospective jurors, the trial judge asked thewhole panel if any of them knew any of the parties. Prospective juror Finley indicated he knew defendant and stated at

one time he was in jail with defendant. Defense counsel asked if this jailing was at the time of the arrest of defendant onthe charges now before the court. Finley answered that he thought itwas not--it was on a DWI charge. Additionally, during voir dire examination by defense counsel,prospective juror Ducharme was asked whether his associationwith defendant in high schoolwould cause him to be prejudiced against the defendant. Ducharme answered he knew defendant was in trouble before, but thatwould not prejudice him. As to Finley's answers,we find no reversible error on two grounds: (1)Defendant's motion formistrial was not made at the first recess following the answers, and (2)the answers

were invited by the further questions of defense counsel. Concerning Ducharme's answer,we do not consider it so nonresponsive as to constitute reversible error. Defense counsel could have limited his question to a "yes" or "no"answer and failed to do so. Ducharme's answer disclosing his knowledge and indicating itwould not prejudice him, although perhaps technically broader than the question asked,was within the bounds of a normal responseby a layman unversed in the intricacies of language and correct legal procedure. We find no reversible error in the district court's denial of defendant's motion for amistrial. The second specification of error concerns the state's right to impeach the defendantby evidence of a prior conviction of a felony. Defendant argues this is impermissible since adoption of the 1972Montana Constitution and repeal of section 94-4723,R.C.M. 1947, shortly after the new Constitution became effective. Our attention is directed to the new Evidence Code, effective July 1, 1977, that eliminates this method of impeachment and particularly to the Commission Comments in connection therewith. Here, the district court denied amotion of defense counsel outside the presence of the jury to bar the prosecutionfrom bringing to the jury'sattention the fact that defendant had previously been convicted of a felony. Thereafter the state,during cross-examination of defendant in his case-inchief, asked this question: "Q. Carl Gafford, have you ever been convicted of a felony? A. When I was 19, I pleaded guilty to receiving stolen property." During final argument, the county attorney in discussing where the truth lies, made these remarks: 

### " 

## * * 

## * You are to measure this case from the mouth of thewitnesses who sat here. Is this girl telling the truth? You are judging her there. You are judging him there sitting there also and youmay consider the fact that in judging his credibility the fact that he is a convicted felon." Prior to the 1972 Montana Constitution it had long been the law in Montana that a witness could be impeached by evidence of a prior conviction of a felony. Section 94-4723,R.C.M. 1947; Section 93-1901-11,R.C.M. 1947; Statev. Coloff, 125 Mont. 31, 231 P.2d 343; Statev. Romero, 161Mont. 333, 505 P.2d 1207. Art. 11, Section 28, 1972Montana Constitution contains this provision: "Rights of the convicted. Laws for the punishment of crime shall be founded on the principles of prevention and reformation. Full rights are restored by termination of state supervision for any offense aqainst the state." (Emphasisadded.) Section 94-4723 has been repealed. Section 95-2227,R.C.M. 1947, has been enacted and provides in pertinent part: "Effectof conviction.

## * * * "(3) When a person has been deprived of any of his civil or constitutional rights by reason of conviction for an offense and his sentence has expired or he has been pardoned he shall be restored to all civil rights and full citizenship, the same as if such conviction had not occurred." Section 93-1901-11,R.C.M. 1947,was not repealed and remains the law of Montana. Itprovides the methods of impeachment and includes: 

### " 

## * * 

## * itmay be shown by the examination of the witness, or the record of judgment, that he has been convicted of a felony." Section 93-2101-2, R.C.M. 1947, also permits impeachmentbyevidence of a prior conviction of a felony. Defendant contends section 93-1901-11was superseded by the enactment of section 95-2227. We do not so construe it. The legislature specifically repealed section 94-4723 and made no mention of section 93-1901-11or 93-2101-2. Repeals by implicationare not favored. State v. Winter, 129 Mont. 207, 285 P.2d 149; State ex rel. Dunn v. Ayers, 112Mont. 120, 113 P.2d 785; State v. Schnell, 107Mont. 579, 88 P.2d 19. In Fletcherv. Paige, 124Mont. 114, 119, 220 P.2d 484, it is stated: "Itwill not be presumed that a subsequent enactment of the legislature intended to repeal former laws upon the subjectwhen such former laws were not mentioned." An implied repeal of a statutewill not be so held, absent a clear legislative intent to that effect. Statev. Lagerquist, 152Mont. 21, 445 P.2d 910; Teamsters et al. v. Mont. Liquor Control Board, 155Mont. 300, 471 P.2d 541; Fletcherv. Paige, supra. Here there is none. Defendant also argues that sections 93-1901-11and 93- 2101-2,R.C.M. 1947, are part of the civil code and have no application to criminal proceedings. The rules of evidence applicable to civil proceedings have long been held applicable to criminalproceedings. Section 95-3001,R.C.M. 1947, (Ehrmerly section 94-7209); State v. O'Neill, 76 Mont. 526, 248 P. 215; Statev. Coloff, 125Mont. 31, 231 P.2d 343; Statev. Romero, 161Mont. 333, 505 P.2d 1207. Defendant advances the position that permitting impeachment by evidence of a prior conviction of a felony is unconstitutionalunder the 1972Montana Constitution. He contends thatArt. 11, Section 28, providing that full rights are restored by terminationof state supervision for any offense against the state,prohibits thismethod of impeachment. In our viewbis Constitutional provision cannot be given such a broad and sweeping construction. In construing and interpreting constitutional provisions, an interpretation that achieves a reasonable result is favored. 2A Sutherland Statutory Construction, 4th Ed., ,§ 45.12, p. 37 and cases cited therein. Section 49-134,R.C.M. 1947. State ex rel. Ronish v. School Dist. No. 1, 136 Mont. 453, 348 P.2d 797; Keller v. Smith, Mont

# . , 553 P.2d 1002, 33 St.Rep. 828. To construeArt. 11, Section 28 in the sense contended by defendantwould prohibit a sentencing judge fromhearing or considering the prior criminal record of a convicted felon indetermining the sentence to be imposed; itwould prohibit an employer such as a bank, a large supermarket, or any retailbusiness handling money from refusing employment as a teller or cashier to a prior convicted embezzler or thief by reason thereof; and itwould prohibit a state institution housing juveniles from refusing employment to a convicted child molester by reason of such prior conviction. Examples abound illustrating the unreasonableness of such construction. We refuse to give this constitutional provision such absolute, broad and sweeping construction. In our view the constitutional provision refers to those rights commonly considered political and civil rights incident to citizenship such as the right to vote, the right to hold public office, the right to serve as a juror in our courts and the panoply of rights possessed by all citizensunder the laws of the land. Ithas no reference to an individual's characteristics, record, or previous conductdemonstrated by a prior felony conviction. Defendant further states his constitutional right to appear and defend himself in a criminal proceeding in person and by counsel is trespassed if his credibility can be impeachedby a prior felony conviction. Art. 11, Section 24, 1972 Montana Constitution. We find no merit in this contention. The testimony of an accused, as in the case of any other witness, is subject to attack by impeachment. Prohibiting impeachment as a violation of an accused's right to defend himself is tantamount to requiring the jury to don blinders in its search for the truth. Defendant also contends that permitting impeachment by prior conviction of a felony denies a prior convicted felon the equal protection of the law in violation of Art. 11, Section 4, 1972Montana Constitution. He argues this singles out a special class of persons, i.e. prior convicted felons, for special treatwhich is constitutionally impermissible. Classifications for different treatment are not per se unconstitutional. State v. Craig, Mont

# . , 545 P.2d 649, 33 St.Rep. 86; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L Ed 369; Royster Guano Gb.v.Virginia, 253 U.S. 412, 40 S.Ct. 560, 64L Ed 989. It is only if the classification is unreasonable that the constitution isviolated. Regardless of the legislativewisdom or merit of singling out prior convicted felons for special treatment, the legislative classification cannot be said to contravene the standard of reasonableness. Finally,we reject defendant's argument based on the proposed new code of evidence. Whatever may be said of the pros and cons of abolishing impeachmentby evidence of a prior conviction of a felony, the new evidence codewas not in effect at the time of trial of this case and consequently has no application. Defendant's third specification of error iswhether permitting the addition of the radiologist as an additional state's witness in mid-trial was prejudicial and reversible error.The controlling statute section 95-1803,R.C.M. 1947, provides: "Discovery, inspection, and notice. In all criminal cases originally triable in district court the following rules shall apply: 

### " (a) List of Witnesses: "(1) For the purpose of notice only and to prevent surprise, the prosecution shall furnish to the defendant and file with the clerk of the court at the time of arraignment,a list of thewitnesses intended to be called by the prosecution. The prosecutionmay, any time after arraignment,add to the list the names of any additionalwitnesses, upon a showing of good cause. The list shall include the names and addresses of thewitnesses. 

### " (2) The requirement of subsection (a) (I),of this section, shall not apply to rebuttalwitnesses. "(b) Subpoenasmay be used as a discovery device as provided for under section 95-1801(d). "(c) On motion of any party within a reasonable time before trial all parties shallproduce at a reasonable time and place designated by the court all documents,papers or things which each party intends to introduce in evidence. Thereupon any party shall, in the presence of a person designated by the court,be permitted to inspect or copy any such documents,papers or things. The order shall specify the time,place and manner of making the inspection and of taking the copies or photographs and may prescribe such terms and conditions as are just. If the evidence relates to scientific tests or experiments the opposing party shall, if practicable, be permitted to be present during the tests and to inspect the results thereof. Upon a sufficient showing the courtmay at any time order that the discovery or inspection be denied,restricted or deferred, or make other appropriate orders. If, subsequent to compliance with an order issued pursuant to this rule, and prior to or during trial, a party discovers additional material previously requestedwhich is subject to discovery or inspection under the rule he shall promptly notify the other party or his attorney or the court of the existence of the additionalmaterial. The court shall exclude any evidence not presented for inspection or copying pursuant to this rule, unless good cause is shown for failure to comply. In the latter case the opposing party shall be entitled to recess or a continuation during which itmay inspect or copy the evidence in themanner provided for above. "(d) For purpose of notice only and to prevent surprise, the defendant shall furnish to theprosecution and file with the clerk of the court at the time of entering his plea of not guilty or within ten (10)days thereafter or at such later time as the courtmay for good cause permit, a statement of intention to interpose the defense of insanity, self-defense or alibi. If the defendant intends to interpose any of these defenses, he shall also furnish to the prosecution and file with the clerk of the court, the names and addresses of allwitnesses to be called by the defense in support thereof. The defendantmay, prior to trial, upon motion and showing of good cause, add to the list of witnesses the names of any additionalwitnesses. After the trial commences, no witnesses may be called by the defendant in support of these defenses,unless the name is included on such list, except upon good cause shown. "(e) All matters which are privileged upon the trial, are privileged against disclosure through any discovery procedure." This statute allows the addition of witnesses after trial has commenced on a showing of good cause. Commission Comments to section 95-1803,R.C.M. 1947; Statev. Klein, Mont

# . , 547 P.2d 75, 77, 33 St.Rep. 283, 286. "Good cause" has been defined as "substantialreasonw--onethat affords a legal excuse. Statev. Rozzell, 157Mont. 443, 486 P.2d 877; State v. Klein, supra. In Klein the Court stated: "Thecourt should first determinewhether the need for the additionalwitnesses and the reason for their not being disclosed earlier is a 'substantial reason'. It should then determinewhether there is prejudice based on surprise and whether this surprise canbe overcome by the granting of a continuance. If the surprise element can be overcome by a continuance,then the witness should be endorsed and the continuance granted. The spirit and intent of the law is that names and addresses of potential witnesses should be disclosed as soon as they are known.

### " As trial progresses, the showing necessary to establish "good cause" should be more stringent. Commission Comments to section 95-1803,R.C.M. 1947, supra. The circumstances of this case furnish the background of the district court's ruling. Defendant's counsel took the deposition of the victim eight days before trial. At that time the following informationwas elicited by defense counsel:"Q. you indicated that an X-ray had been taken? A. Yes. "Q. Where and by whom? A. Up at St. Joseph's Hospital. "Q. Who requested the X-ray? A. Dr. Coriell said that I should have it X-rayed to make sure that itwasn't broken." Sometime the previous November, the public defender and then counsel for defendant,had received a written medical report from Dr. Coriell concerning his examination of the victim. About a week prior to trial the county attorney received this medical report. Defense counsel had discussed with Dr. Coriell his examination of the victim. No mention of the X-rays in question was made in the written reports or discussionby Dr. Coriell. Trial commenced on Wednesday, March 3. Jury selection consumed the entire first day. On March 

### 4 jury selection continued and thereafter general instructionswere given the jury by the court, the statemade its opening statement, defendant reserved his opening statement, and the victim was sworn and testified. On Friday,March 5, the victim resumed her testimony, photographic exhibits and a wine bottle were introduced, the undersheriff testified, the jury examined the premises involved in the incidents forming the basis of the charges, and Dr. Coriell testified. Over the weekend, the county attorney called defense counsel and informed him that the state intended to present the X-rays and would, for that purpose, request the endorsement of

a radiologist as an additional witness for the state. When court reconvened on Monday, March 8, the state moved to add the name of Dr. David Dahlgren, the radiologist who read the X-rays, as an additional witness for the state and represented to the court that the reason for the motion wasthe inability of Dr. Coriell to recall whether or not such X-rays

were requested by him. The county attorney represented to the court that Dr. Coriell had not advised either the victim or her family of the findings of the X-rays by Dr. Dahlgren and these were entirely unknown either to the victim or the state. The county attorney represented he was surprised by Dr. Coriell's testimony. Themotion was resisted by defense counsel on these grounds: (1)The presence of the witness and the X-ray had to have been knownby the state from the onset of the trial,

(2) the state did not furnish defense counselwith the name of thewitness or the existence of the X-ray in response to themotion requiring this, (3)Dr. Coriell had not indicated the presence of the X-ray or the findings in his conversation with defense counsel, and 

### (4)it changed thewhole complexion of the trial and came as a surprise to defendant in themiddle of the trial. Defense counselmoved for a week's continuance to take the X-ray to an independent radiologist inMissoula for examination. Although some of the discussion went unreported in the record, it appears from the trial judge's reported remarks that defense counselhad already contacted Dr. Fritz inMissoula for this purpose. The court granted a one day continuance. No further request for additional time or continuancewas made by defense counsel,nor was any objection made to the reduced time of continuance. Dr. Fritzwas never called as a witness for defendant at the trial. The testimony of Dr. Dahlgren indicatedhe examined the X-rays and they indicated a nondisplaced fracture of the nose of the victim. On appeal defendant argues that the late disclosureof the X-rays and what they showed was permitted without a showing of "good cause" and prejudiced the defendant in defending himself after his theory of the case had been prepared and the casewas in mid-trial. He argues the stateby reasonable diligence could have discovered this evidence in advance of trial rather than waiting until themiddle of the trial and "ambushing"defendant with a devastating and key piece of its evidence. In our view, the showingmade by the state indicated surprise. The state represented it knew nothing about the findings of the X-rays and were surprised that Dr. Coriell did not testify as to the X-rays and what they showed. Defendant's counsel stated the state failed to exercise reasonable diligenceprior to trial in uncovering this information. This is a two-edged sword. Both the county attorney and defense counsel knew about the X-rays prior to trial. Apparently neither the state nor the defense knew what they disclosed. Lacking this information,their relevance and significance were unknown and unappreciated by either the state or the defense. While the state could have followed through, it relied on Dr. Coriell to cover thispoint. The defense could also have uncovered this informationby requesting authorization for examination of the X-rays, which they knewwere at St. Joseph's Hospital. We cannot say that the showing by the state did not constitute "good cause"permitting the endorsement of the radiologist as a witness for the state under the circumstances here. We emphasize that there is nothing to indicate an intentional or deliberatewithholding of evidence by the state. Such are not the facts here, and case rulings under such facts

are not germane to this appeal. Defendant objects to the oneday continuance ratherthan theweek's continuance requested. At the time the one day continuancewas granted,defense counsel had already contacted Dr. Fritz, the independent radiologist it sought to read the X-rays. When trial was resumed defendant gave no indication that he needed more time. He did not request an additional continuance. He simply proceeded with the trial without further objection. Under these circumstances, he will not be heard to say on appeal that the one day continuance

was insufficient. We notedefendant has applied to the Sentence Review Board for a review of his sentence. This review has been deferred pending outcome of this appeal. The equity and uniformity of his sentencewill be thoroughly reviewed and determined by that body following this appeal. We reserve jurisdiction to review the sentence thereafter. The judgment of conviction is affirmed.

Justice

Chief Justice

L 7



## ................................ JusticesMr. Justice Daniel J. Shea dissenting: I would reverse thejudgment of conviction and order a

new trial. While perhaps each of the claimed errorswould not be sufficient initself toconstitute reversible error, when taken together I believe the defendant was denied a fair trial. Because of the voirdireexamination thepast conduct of the defendant, unrelated tothe charges, was already infront of the jury before the testimony started. (One juror statedhe knew the defendant had been introublebeforebut he could 

### stillbe fairand the otherjuror statedhe had been injailwith the defendant when the defendant had been charged with drivingunder the influence). 

### It istrue that these comments were invited toa degree by defense counsel, but this stilldid not freethe trial judge from assuring that the future course of the trialwould not further poison the trialatmosphere. As a stepinassuring this fair trial, the trialcourt should have granted the defensemotion inlimine toprevent thejury fromknowing of defendant's past felony conviction. It isclear that conviction, one of receiving stolenproperty obtained some 

### 7 years before thepresent trialwhen the defendant was 19years of age, had no probative value on the issue of rape thatwas being tried. The sole reason forallowing theprosecution toask defendant ifhe had everbeen convicted of a felonywas based on section 93-1901-11, 

### R.C.M. 1947, a statutewhich enacted the old

common law rule that one convicted of a felony islessworthy of belief, and accordinglythejury should know about theprevious felony conviction.

### This statute is not a rule of substantive law; it is a rule of evidence. Itdoesnot declare that a previous felony conviction must be allowed in evidence; it simply states that it "may" be allowed in evidence. Whether to allow theprevious conviction in evidence is a matter of discretion for the trial court, to be determined according to the circumstances of each case,keeping in mind that it is the ultimate duty of the trial court to assure each defendant a fair trial. This duty cannotbe watered downby a blindfolded application of a statute, for the duty to assure a fair trial transcends the mechanical application of rules of evidence. Given the circumstances of this case, itwas prejudicial

error to allow the jury to consider the defendant's previous felony conviction. This errorwas compoundedby two events occurring after the admission of this evidence. During settlementof jury instructions the prosecutor offered an instructionon how the jurywas to consider evidence of a previous felony conviction,but it also contained law on other points already covered in the instructions. Defense counselobjected on that ground and the trial court refused the instruction. Theprosecutor did not offer another instructionon the subject. While defense counseldid not offer an instruction

on thepoint,nevertheless the cumulative evidence relating to defendant's bad conductwas such that the trial judge onhis

ownmotion shouldhave given the jury a cautionary instruction. Furthermore, it was improper for the prosecutor to comment on the previous felony conviction inhis final closing arguments where he did not cover the subject in his own opening arguments and defense counseldid not cover the subject inhis own final arguments. Had the prosecutor discussed the felony conviction

### duringhis opening arguments defense counsel couldhavemade

an informed decision as to how to handle thematter. But at this stage of the arguments defense counsel could only object to

an improperargument,and thiswould onlyhave served to heighten and concentrate the jury's attention on his client's previous felony conviction. Theprosecutor's remarks to which defense counsel could not respond, were: "You are to measure this case from themouth of thewitnesseswho sathere. Is this girl telling the truth? You are judgingher there. You are judging him sitting there also and youmay consider the fact in judginghis credibility the fact thathe is a convicted felon. "Now,measure the truth.* 

# * *I1 

### This combinationof circumstances concerning defendant's past conduct,wholly unrelated to the case,deprived him of a

, 

### fair trial. Italsowas improper to allow the X-rays in evidence under the circumstances as exist in this case. This is not a casewhere, after due diligencewas exercised,the prosecutor came up with additionalevidencehe did not know existed. 

### It is a case where the statehad been rewarded for a total lack of diligence. Here, the prosecutor knew the X-rays existed but never bothered to determine if they had any evidentiaryvalue until the middle of the trial. Theprosecutor shouldhave known the X-rays existedwhenhe

orhis agents talked to the complainingwitness to determine if therewas probable cause fora criminal complaint. Inany event, hemost certainlyknew the X-rays existedwhen the defensedeposed the complainingwitness and she testified X-rayswere taken ofher

nose at St. Joseph's Hospital. But the first time theprosecutorbothered todetermine if the X-rays had any evidentiary value was afterboth the complainingwitness and her mother testified at the trialthatX-rays had been taken, even though the treating doctor, Dr. Coriell, testified he could not recallwhether he had ordered X-rays. It was only after this testimony that an effortwas made to seewhat theX-rays contained. I disagreewith the majority that the statewas legitimately surprised because it expected Dr. Corielltotestify atthe trial

as to the X-rays and the results. Since the statehad never discussed the X-rays with him before trial (infact, hismedical report did not even mention X-rays), it isillogicaltoconclude the stateexpected Dr. Corielltocover the subject of X-rays atthe trial. Furthermore, I think the state's failure to comply with discovery concerning the X-rays would have precluded the state from using Dr. Coriell or anyone else to testify concerning the X-rays and the results. Before trialthe defense moved to discover all"documents, papers and things" that the prosecution intended to introduce at trial, and the court so ordered, with no objection from the state. Atno time were the X-rays listed as a potential exhibit and atno time before trialwas the defense ever given notice the state intended to introduce X-rays inevidence. One of the very purposes of the discovery statutes istoprevent surprise, and here the defense was totally justified inbelieving the statewas not going to introduce any X-rays inevidence. Accordingly, the trialcourt

was inerrorwhen it allowed the endorsement of the radiologist

on the Information to get the X-rays and the results inevidence. For the foregoing reasons I would reverse thejudgment of conviction.

w Justice.