CHESTNUT V. COM
CRIMINAL: Discovery Violation
OPINION BY SCOTT; ABRAMSON NOT SITTING
DATE RENDERED: 4/24/2008
Having concluded that the Commonwealth’s failure to disclose an incriminating oral statement of the defendant per RCr 7.24(1) impermissibly tainted Chestnut’s defense in this case, SC reversed his convictions and 77 year sentence for four counts of burglary in the second degree, receiving stolen property over three hundred dollars, possession of a controlled substance, and illegal possession of drug paraphernalia. Looking at the plain language of RCr 7.24(1) stating that, "the Commonwealth shall disclose . . . any oral incriminating statement . . . made by a defendant," we find that it is apparent from a reading of the language of the rule, that RCr 7 .24(1) was intended to apply to both oral and written statements, which were incriminating at the time they were made. Consequently, to the extent that Berry, and its progeny Partin and Matthews hold that RCr 7.24(1) does not apply to a defendant’s oral incriminating statements, they are overruled. Accordingly, we now conclude that nondisclosure of a defendant’s incriminating oral statement by the Commonwealth during discovery constitutes a violation of the discovery rules under RCr 7.24(1), since it was plainly incriminating at the time it was made.
Presentation of undisclosed evidence in violation of RCr 7.42(1) under the guise of rebuttal evidence pursuant to RCr 9.42 constitutes reversible error. Because the trial court abused its discretion in allowing the admission of the statements in violation of RCr 7.24(1), and because it reasonably likely that had the evidence been disclosed, Chestnut’s defense, and potentially the result, would have been different, the error was not harmless. The trial court committed error in allowing excluded evidence into the jury room during deliberations.
Digested by Scott Byrd, Olgin and Byrd Attorneys