dissent">Dale Price, Justice,

dissenting. I respectfully dissent. I am compelled to write concerning the prosecutor’s tactics in this case.

The first instance of misconduct occurred when the prosecutor failed to furnish to the defendant, as soon as practicable, the names and addresses of all the state’s witnesses, along with the prior convictions of such witnesses. See A.R.Cr.P. Rule 17.1(a)(i) and (vi); A.R.Cr.P. Rule 17.2

On May 16, 1989, over three months before trial was scheduled, the appellant filed discovery motions seeking the names and addresses of prosecution witnesses and seeking the identity of any confidential informants. The state responded with a list of two witnesses. The response also noted that a confidential informant, name and address unknown, would testify. On July 7, 1989, the prosecutor caused a subpoena to be served on the informant, Lazario Garcia. Clearly, the prosecutor knew Garcia’s name and address as early as July 7. Yet six weeks later, on the scheduled trial date of August 22, this information still had not been provided to the appellant.

On August 22, the appellant was finally told of Garcia’s identity, but was not provided with Garcia’s address or his record of prior convictions. On September 29, the appellant was forced to file a motion to compel, asking that the state be ordered to produce the information. On October 5, the state responded, not with pertinent information, but with the suggestion that the appellant contact the informant through another agency, namely the state police. This does not comply with the discovery rules.

The second instance of misconduct concerns the rescheduling of the August 22 trial date. On August 21, appellant’s counsel, while conferring with appellant, received a call from the prosecutor advising them that he, the prosecutor, was requesting a continuance. Appellant’s attorney explicitly objected and demanded the trial proceed the following morning. The prosecutor then notified appellant’s attorney that there would be a hearing on the motion at noon on August 22. Appellant’s attorney appeared in court at 8:30 on August 22 prepared for trial. The appellant, who was incarcerated, was not present nor were the court personnel or prosecuting attorney, the judge or the jury panel. Appellant moved for dismissal of the charges, and a hearing was held on the motion on October 23, 1989, where testimony developed that the prosecutor had been unable to get in contact with Garcia and verify if he would be present. The prosecutor acknowledged that he did not recall talking to the judge but talked to “Roberta or Johna” and a decision was made that the jury would not be called in. That party, who called off the trial and jury, was not the judge, for he ordered an investigation concerning the cancellation. Certainly, the appellant was unaware of the cancellation; he appeared in court on the 22nd ready for trial. The prosecutor cancelled the trial, or caused it to be cancelled, without even contacting the judge or appellant’s counsel. This becomes even more obvious upon viewing the subpoena the prosecutor sent the informant Garcia. The subpoena, served in July, directed Garcia to appear on the wrong date, August 29 rather than August 22.1 conclude that once the prosecutor realized his mistake, he caused the trial to be can-celled. Garcia was a key witness, and the failure to provide the appellant with Garcia’s name prior to trial would prohibit use of Garcia’s testimony. See Lewis v. State, 286 Ark. 372, 691 S.W.2d 864 (1985). This manipulation of the judicial process should not pass unnoted. Imagine what would have happened had defendant’s counsel talked to someone other than the judge and, without notice to the prosecutor or judge, called off the jurors and the trial.

I am also troubled by the majority’s reliance on the rule that granting a continuance is within the discretion of the trial court under the facts in this case. The prosecutor was not given a continuance by the court; he gave himself a continuance.

I would reverse and dismiss.

Holt, C.J., and Turner, J., join in the dissent.

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