¶1 dissenting.
¶2 I respectfully dissent because of the long-term implications of the holding in this case.
¶3 Wamsley contends that Jay Lambert’s testimony should not have been admitted because his name was not disclosed by the prosecutor on its witness list. The state contends that because Lambert was intended to be used as a rebuttal witness, his name need not have been disclosed prior to trial. I find the state’s contention to be erroneous in light of current Ohio case law.
¶4*612 In State v. Finnerty (1989), 45 Ohio St.3d 104, 543 N.E.2d 1233, the Ohio Supreme Court held that rebuttal witnesses fall within the scope of discovery. See, also, State v. Howard (1978), 56 Ohio St.2d 328, 10 O.O.3d 448, 383 N.E.2d 912; State v. Parson (1983), 6 Ohio St.3d 442, 6 OBR 485, 453 N.E.2d 689.
¶5 In some cases, Howard, supra, for example, it was held that the state would not be barred from calling a rebuttal witness for failure to include that witness from the discovery witness list. These holdings should not be construed to mean that the state does not have to make discovery of the rebuttal witnesses it intends to call. Rather, these holdings mean that where in the course of a trial it becomes necessary to call a witness on rebuttal, and the need to call that witness was not anticipated by the prosecution until after the defense had presented its case, then there is no violation of rules of discovery.
¶6 If the prosecution does not provide the name of a rebuttal witness upon a defendant’s request for such information, the trial court may impose sanctions on the prosecutor. Finnerty, 45 Ohio St.3d at 107, 543 N.E.2d at 1236. Crim.R. 16(E)(3) provides a list of those sanctions. It is within the discretion of the trial court to decide which sanction to impose. State v. Apanovitch (1987), 33 Ohio St.3d 19, 514 N.E.2d 394. A trial court abuses its discretion when it acts in an unreasonable, arbitrary or unconscionable manner. State v. Jenkins (1984), 15 Ohio StSd 164, 15 OBR 811, 473 N.E.2d 264.
¶7 The state argues that imposition of a sanction is within the discretion of the trial court and that in any event the defense did not request a continuance so that any claim of error is waived. I would like to consider the issue of the request for a continuance first.
¶8 If one thinks this through, the state’s assertion about the need to request a continuance creates a pernicious situation. If the state properly discloses the witness, then defense counsel will have adequate time to investigate and prepare for that witness’ testimony. If the state does not disclose until the middle of the trial, then the time available to investigate and prepare is invariably shorter. It puts the defense at a substantial disadvantage. Thus, there is a premium, a tactical advantage, for the state to make less than full discovery.
¶9 With the idea of that tactical advantage in mind, let us presume a situation where the trial court finds that the state has willfully and deliberately failed to disclose the name of a witness. If the defendant must move for a continuance, then the trial court can hardly refuse to grant it. But if the defendant must always first move for a continuance and the trial court must grant it, then the trial court can never impose the greater sanction. Egre *613 gious conduct which would justify the greater sanction would always justify the lesser sanction, but in such a situation the court would have to deny the very relief requested by the defendant, i.e., the continuance, and impose then an even greater sanction than the one asked for. Granting greater relief than asked for is usually an abuse of discretion itself.
¶10 Arguably, it may even be malpractice for the state to make discovery. If there is no real sanction, if the defense can be placed in a position of always having to prepare during the time of the continuance which is granted in the middle of the trial instead of being able to prepare before trial, what benefit accrues to the prosecution by making discovery? If there is no disadvantage to the state, perhaps a prosecutor ought never to make full discovery.
¶11 Obviously, this is not what the Criminal Rules intend. But if the courts will not impose a sanction to overcome this tactical advantage, if the courts will not enforce the rules of discovery, then we will not have discovery. It is as simple as that.
¶12 Thus, I dissent.