FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION [NO.
60CR-16-2149], HONORABLE HERBERT T. WRIGHT, JUDGE
Adams & Wyatt, PLC, Little Rock, by: James W. Wyatt, for
Rutledge, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for
Courtney Lowe was tried by the Pulaski County Circuit Court
and found guilty of three counts of terroristic acts
(felonies), one count of possession of a firearm by certain
persons (felony), one count of domestic battering in the
third degree (misdemeanor), and firearm enhancement. For his
sole point of appeal, he contends the circuit court abused
its discretion in not allowing Ed Montgomery to testify as a
rebuttal witness for him. We affirm.
charges against Lowe arose out of an incident that occurred
in April 2016, during which he allegedly hit his cousin,
Dominque White, on the head with a gun and then fired several
shots into her vehicle, which had three minor children in it.
Because Lowe does not challenge the sufficiency of the
evidence supporting his convictions, it is not necessary to
develop the facts further surrounding the April 2016
Instead, Lowe challenges the circuit court’s decision not to
allow him to present Ed Montgomery as a rebuttal witness.
According to Lowe, Ed Montgomery was his counsel’s law
partner, and at a pretrial hearing, Dominque commented to
Montgomery that Lowe was not the person who had fired shots
into the vehicle and that she wanted the prosecutor to drop
the case against him. When Lowe’s counsel cross-examined her
at trial, however, she denied ever having made such comments.
Lowe wanted to present Montgomery as a witness in his
case-in-chief, but the prosecutor objected, arguing that Lowe
had never provided the requested witness list showing
Montgomery as a potential witness.
countered that Montgomery was being called as a rebuttal
witness, and such witnesses did not have to be disclosed. The
circuit court sustained the objection. Lowe then argued that
even though he had not provided the requested witness list,
he had mentioned to the prosecutor that he would call
Montgomery to recount what Dominique had told him. The
prosecutor denied having been told specifically that
Montgomery would be called— only that several people
would be able to testify that Dominque had changed her story
several times. The court sustained the objection again,
commenting that the two sides "exchange a witness list
to avoid issues like this."
Preliminarily, the State argues that Lowe did not proffer the
substance of what Montgomery would have testified about, and
therefore the issue was not properly preserved for our
review. We disagree. While it is true that there must be a
proffer of excluded evidence in order to challenge its
exclusion on appeal, if the substance of the excluded
testimony is apparent from the context of the discussion, a
proffer is not necessary. Brown v. Ark. Dep’t of Human
Servs., 2017 Ark.App. 67, 511 S.W.3d 895. The substance
of Montgomery’s excluded testimony was apparent from the
context of the discussion. He would have testified that
Dominque told him Lowe was not the one who had fired the
shots. Therefore, we conclude the issue was sufficiently
preserved for our review.
Although we have concluded it is appropriate to address the
merits of Lowe’s argument, we hold there was no abuse of
discretion by the circuit court in rejecting Montgomery’s
testimony because it was not truly rebuttal testimony, and
the exclusion of testimony is an acceptable sanction when
there has been a discovery violation.
18.3 of the Arkansas Rules of Criminal Procedure provides:
Subject to constitutional limitations, the prosecuting
attorney shall, upon request, be informed as soon as
practicable before trial of the nature of any ...