¶1Retired, concurring in part, and in part dissenting.
¶2I agree with the majority’s opinion on all of the points considered by the majority’s opinion except one. I must dissent from that portion of the opinion which concludes that the prosecutor’s conduct was not prejudicial to Jack E. Harris. I understand that this court is bound by the finding of the trial court that the prosecutor did not deliver the report to the defense counsel and that her failure to do so was not deliberate. However, in my opinion, a combination of that unintentional conduct and the method of the prosecutor’s direct examination of Officer Leland Cass enabled the State to get before the jury a crucial admission which appeared to be clearly inadmissible.
¶3On direct examination, Cass was allowed to testify that he learned that Harris knew Howard Hicks by his nickname, “Homicide,” which is a crucial fact when Harris was claiming he did not know Hicks. Because the prosecutor had not delivered the report which showed Cass learned of that fact as part of a proffer, defense counsel had no way of preventing that evidence from being presented to the jury, but the prosecutor would have had the report and must have interviewed Cass to learn of the basis of his testimony.
¶4Viewed in the light of the other evidence, in my opinion, the admission of this evidence was very prejudicial. Cass’ testimony *52was that of a disinterested, reputable, and unimpeachable witness of a nonjudicial admission of a party. In my opinion, that is powerful evidence, usually dispositive of the point admitted by a party. An admonishment by the judge that the jury should disregard such evidence would be useless. Without Cass’ testimony, the evidence before the jury was that Harris testified he did not have an association with Hicks at the time that Hicks testified that they murdered Jones together. The State had the unsupported testimony of Hicks that he did. Hicks’ testimony on his association was weak and unsupported. The testimony that Harris admitted to the crimes was given by three jail inmates with obvious motives to lie.
¶5Without the evidence obtained by the proffer statement, in my opinion, a jury would have difficulty in finding Harris to be guilty beyond a reasonable doubt. Therefore, I think the prosecutor’s conduct was prejudicial to Harris’ getting a fair trial.