¶1dissenting. It seems to me that the majority has confused A.R.Cr.P. Rule 17 with Ark. Stat. Ann. § 43-2011.3, the statute here under consideration. The majority opinion does not recite the pertinent provisions of the statute, which reads as follows:
(b) After a witness called by the state has testified on direct examination, the Court shall, on motion of the defendant, order the state to produce any statement (as hereinafter defined) of the witness in the possession of the state which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.
¶2The words “the Court shall” seem to be clear and unequivocal. It is not even implied that the Court has any discretion in the matter. There was no argument before the Court that the facts were an exception to the statute or that the statute was not applicable. The issue is squarely whether a trial court “shall” follow the plain wording of the statute.
¶3I have no disagreement with the holding that mandamus cannot be substituted for appeal. Neither can it be used to review findings of fact, correct abuses of discretion, or correct erroneous conclusions of fact. We considered this same statute and facts almost identical to those in the present case in Blakemore v. State, 268 Ark. 145, 594 S.W.2d 231 (1980). There the defendant requested the reports after the officer had testified, which was also done in the present case. The trial court held the request was not timely as the same information was available by discovery pursuant to Criminal Procedure Rule 17.1(b). In reversing the trial court in Blakemore we stated:
It is provided by statute, however, that after a witness called by the State has testified on direct examination, the Court “shall,” on motion of the defendant, order the State to produce any relevant statement of the witness in its possession. Arkansas Stat. Ann. § 43-2011.3(b) (Repl. 1977). Thus the requests for statements were timely.
¶4Also, see Nelson v. State, 262 Ark. 391, 557 S.W.2d 191 (1977), where the identical rule and statute were considered. This court reversed in Nelson for the same reasons stated in Blakemore.
¶5The purpose of mandamus is not to establish a right but to enforce a right already established. Carter v. Marks, 140 Ark. 331, 215 S.W. 732 (1919). This definition remains operative and is still followed by the courts. Wells v. Purcell, 267 Ark. 456, 592 S.W.2d 100 (1979). In reversing a circuit court’s refusal to issue a writ of mandamus directing a city to hold a timely election we held that a public official has no discretion to do away with a right already established. Lewis v. Conlee, 258 Ark. 715, 529 S.W.2d 132 (1975).
¶6What good is a statutory right if it may be ignored by a court. An appeal is time consuming and expensive. To force a person to resort to an appeal on refusal of the trial court to grant a vested statutory right, in most cases, has the effect of denying such (a statutory) right. In my opinion no court has the discretion to deny a statutory right unless it is either waived or is contrary to public policy or the Constitution.
¶7I would issue a writ of mandamus.