                              No. 82-322
               IN T I SUPREIflJ COURT OF THE STATE OF MONTANA
                   IE
                                  1983



STATE OF MONTANA,
               Plaintiff and Respondent,
     -vs-
VICTOR M.ARVIN WILLIS,
               Defendant and Appellant.




APPEAL FROM:   District Court of the Eighth Judicial District,
               In and for the County of Cascade,
               The Honorable John PI. McCarvel, Judge presiding.


COUNSEL OF RECORD:
      For Appellant:
               Ralph T. Randono argued, Great Falls, Montana

      For Respondent :
               Hon. Mike Greely, Attorney General, Helena, Montana
               George Schunk argued, Legal Intern, Helena, Montana
               J. Fred Bourdeau, County Attorney, Great Falls,
               Montana



                              Submitted: September 12, 1983
                                Decided: December 13, 1983




                              Clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
        Willis was     convicted of     sexual intercourse without
consent and agqra~rated burglary in the District Court of
Cascade County following a jury trial.         The Court sentenced
Pillis to a term of fifteen years on each count to be served
concurrently and designated Willis a nondangerous offender.
Willis appeals both the convictions and the sentences.              We
affirm.
        The rape victim was awakened in her apartment by a man
with his hands around her throat at approximately 5:00              to
5:15   a.m. on December 21, 1981.       When she screamed for help,
the man's hands tightened around her throat and he told her
to "shut up."       She did not recognize his voice this first
time he spoke.      She attempted to scream again and her attack-
er again told her, this time in a different tone of voice, to
"shut up."      This time she immediately recognized Willis's
voice and used his name, to which he did not respond.               He
also called her by her nickname and told her to         ". .   .   shut
up, or I'll hurt you."        The victim recognized the cologne or
aftershave Willis was wearing, and although the light was
dim, she recognized Wj-llis's profile by the light from a
street light shining through a window.        A review of the file,
including the initial police reports, shows that the victim
has never had any doubt regarding the identity of her attack-
er.    There were, however, discrepancies between the victim's
description of      her   attacker s    clothing and   the   clothing
Willis was said to have been wearing that night.
       After the rape, when the victim was able to get away
from Willis, she grabbed a robe and ran barefoot and scream-
ing    into   the   street.     Still   screaming, she knocked      on
neighbors' doors but they did not respond.       Joyce Carter, a
woman who heard her screams while delivering newspapers, came
to her assistance and took her to the sheriff's department.
         Carter saw the attacker as he ran to his car.       She
~bservedWillis drive away in his car which she identified as
a bright blue Ford small car.       At the time she thought the
car was either a Pinto or a Mustang from the front but not
from the rear and at that time could not remember the name of
the other Ford compact car.      At the time of the rape, Willis
owned a bright blue Ford Maverick.
        From the sheriff's department, the victim was taken
directly to a hospital for a rape examination.        The doctor
testified that the physical evidence showed that she had had
sexual intercourse within the preceding twelve hours.         He
also noted the presence of abrasions on both sides of her
neck.
        Defendant Willis relied on an alibi defense at his
trial.        He had several witnesses who testified that he had
been with them at an all-night beer party and did not leave
until approximately 5:30 a.m.       This testimony was impeached
on rebuttal by the testimony of Officer Renman, who testified
that he had interviewed the witnesses shortly after the rape
and at that time they stated that the drinking party had
broken up earlier.      Officer Renman used his handwritten notes
of these interviews to refresh hjs recol-lection during direct
examination-in-chief on rebuttal.      Whether these handwritten
notes are subject to discovery under section 46-15-302(2),
MCA, is appellant's basic issue on appeal.
         Three issues are raised which we summarize as follows:
         1.     Did the trial court err in denying defendant's
motion for a mistrial when a police officer testified at the
trial from notes which had not been produced in response to a
motion to produce?
      2.   Are the notes of a police officer, taken during
interviews with     defense witnesses, exempt       from discovery
under the "prosecution work product" exception to section
46-15-302 (2), MCA?
      3.   Must handwritten police officers' notes of the
prior inconsistent statements of defense witnesses, used for
impeachment,   be     produced   as   exculpatory   under   section
46-15-302 (2), MCA?
      The defendant both raises and disposes of the first
issue regarding whether a mistrial should have been declared.
when it was discovered for the first time during trial that
there were police offi.cer's notes in existence.        The record
shows that defense counsel was informed of the existence of
Officer Renman's personal notes during the omnibus hearing
held approximately two months prior to trial-.        In addition,
defense counsel's own motion to produce filed prior to trial
specifically mentions Officer Renmanls handwritten notes.
Defense counsel can hardly state that he first discovered the
existence of the notes at trial when they were discussed at
the omnibus hearing and were later specifically identified in
his motion to produce.
      An examination of the relevant statute is dispositive
of this appeal.     That statute provides:
           "46-15-302.    Discovery of writings and
           objects. In all criminalcases oriainallv
           triable in the district court, the follow:
           ing rules shal.1 apply:


           "(2) Upon motion of the defendant within a
           reasonable time before trial, the court
           may, upon a showinq of good cause, order
           the prosecution to produce, prior to trial
                      at a time and place designated by the
                      court, for inspection, photographing, or
                      copying by the defendant designated books,
                      statements, papers, or objects obtained
                      from the defendant or others by the prose-
                      cution which are material, relevant, and
                      necessary to the preparation of the defen-
                      dant's case.    This subsection does not
                      apply to the work product of the prosecu-
                      tion, which is documents drawn up by law
                      enforcement officials for internal commu-
                      nications and law enforcement officers '
                      field notes, except that any exculpatory
                      information contained in such documents or
                      notes must be produced."         (Emphasis
                      added. )
                 We   note that the statute first requires a showing of
%>*   A




          good cause before a court can order the prosecution to pro-
          duce evidence.
                 A thorough review of the record fails to disclose any
          showing of good cause by defense counsel in requesting the
          officer's field notes.   These notes were taken during inter-
          views with defense counsel's own witnesses.    He had continual
          access to these witnesses from the investigation stage of the
          ma.tter through the final resolution.    There is nothing to
          indicate tha.t any of these witnesses were oth.er than totally
          cooperative with defense counsel.   However, even if they had
          been hostile or uncooperative, other forms of discovery, such
          as the taking of their depositions, were available to coun-
          sel.    He did not avail himself of these other discovery
          methods.    Counsel also cou1.d have reviewed the notes during
          trial but chose not to take advantage of this privilege.
          Instead, he elected to move for a mistrial but. did not
          prevail.
                 Defense counsel argues, and we agree, that discovery is
          an important aspect of criminal procedure.    He cites Williams
          v. Florida (1970), 399 U.S. 78, 82, 90 S.Ct. 1893, 26 L.Ed.2d
          446, which states that the primary purpose of discovery is to
avoid a "poker game attitude" in which players enjoy an
absolute right to conceal their cards until played.    We agree
with this statement also.       However, there is no risk of
concealment under the circumstances disclosed here.       These
were defense witnesses, not prosecution witnesses, and were
clearly accessible and cooperative.   All counsel had to do to
discover the contents of the notes was to ask his own wit-
nesses what thev said to Officer Renman, depose him with a
subpoena duces tecum, or examine the notes at the trial.
None of these available remedies was utilized.     There was no
showing of good cause nor could there be such a showing under
these circumstances.
        In conclusion, we find that in order for counsel to
prevail under section 46-15-302 ( 2 ) , MCA, there must first be
a showing of good cause before the court can order produc-
tion.    There was no such showing here.    Since there was no
showing of this first requirement of good cause, we never
reach the issue of the work product exclusion or the excep-
tion of exculpatory material.
        We affirm.




                                 344.$44m&
                                  Chi-ef Justice
We concur:




trict Judge, sitting in place of
Mr. Justice Frank B. Morrison, Jr.
