Bullard v. State ( 2000 )

Ruffin, Judge,

concurring specially.

I concur in the Court’s judgment, but I write separately with respect to Division 3 (a) concerning the State’s motion in limine to exclude 22 of Bullard’s witnesses.

Defense counsel faxed a list of 22 witnesses to the State on the Saturday before the trial began the following Tuesday. The trial court granted the State’s motion in limine to exclude the witnesses, ruling that the defense acted in “objective” bad faith and prejudiced the State with its eleventh-hour list. By flatly excluding all 22 witnesses, without exploring the possibility of less drastic alternatives, the trial court may have needlessly hampered Bullard’s ability to present a defense. Instead of granting the motion in limine wholesale, the trial court could have ascertained whether defense counsel could whittle down the witness list by eliminating any repetitive witnesses. As defense counsel has represented that the “vast majority” of the 22 witnesses were character witnesses, it is likely that many of them were redundant. The State could then have been permitted to interview the remaining witnesses, to the extent feasible, before and during the trial. A more flexible approach such as this could have expanded Bullard’s defense options without “ambushing” the State.

Decided March 1, 2000 — Reconsideration denied March 17, 2000 Garland, Samuel & Loeb, Donald F. Samuel, for appellants. J. Tom Morgan, District Attorney, Thurbert E. Baker, Attorney General, Nancy B. Allstrom, Assistant Attorney General, for appellee.

I agree, however, that Bullard has failed to show that he was harmed by any error on the part of the trial court because he failed to offer proof concerning the testimony he expected the witnesses to give.

I am authorized to state that Judge Ellington joins in this opinion.