FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION [NO.
60CR-16-2149] HONORABLE HERBERT T. WRIGHT, JUDGE.
Montgomery, Adams & Wyatt, PLC, by: James W. Wyatt, for
Rutledge, Att'y Gen., by: Vada Berger, Ass't
Att'y Gen., for appellee.
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
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."
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.
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 defense which
defense counsel intends to use at trial and the names and
addresses of persons whom defense counsel intends to call as
witnesses in support thereof.
rebuttal witnesses need not be disclosed because neither the
State nor the defense would necessarily know in advance of
the need for such testimony. Williams v. State, 338
Ark. 178, 992 S.W.2d 89 (1999); Weaver v. State, 290
Ark. 556, 720 S.W.2d 905 (1986). Lowe contends Montgomery was
a genuine rebuttal witness. The circuit court determined
otherwise, and we find no error in that conclusion. Lowe was
aware of Montgomery's version of events, and it is fair
to say that when the prosecutor continued to pursue the
charges against Lowe, and Dominique was going to testify for
the State at trial, it was clear Dominique would not testify
in the same manner that she allegedly recounted events to
Montgomery. Under the circumstances, Lowe would not have been
surprised by Dominique's testimony, and he should have
been prepared to present Montgomery as a witness. In fact, in
countering the State's objection, Lowe's counsel
asserted that he had earlier orally informed the prosecutor
of his intent to call Montgomery as a witness. Consequently,
we agree that Montgomery was not a true rebuttal witness, and
his name should have been provided to the prosecutor as a
potential witness for trial. See Hoyle v.
State, 2018 Ark.App. 498, 562 S.W.3d 253.
we hold there was no abuse of the circuit court's
discretion in employing discovery-violation sanctions. Rule
19.7 of the Arkansas ...