I'm trying to decide whether to call my responding officer or just use my complaining witness/victim in an upcoming case under the following circumstances:

1. Defendant knocks on victim's door, cussing and shouting racial slurs...mainly mad that victim's car is parked partially on the street where defendant has to avoid it (not actually blocking anything, just parked along the road).

2. Deputy responds to scene after defendant leaves, does very cursory investigation with very short report. The words "terroristic threat" are not mentioned anywhere--deputies serve defendant with criminal trespass warning.

3. 3 months later, victims are upset that no case has been pursued and publicly accuse sheriff's office of all kinds of things...who then look into the case. Come to find out, responding deputy has left the department, with the report never passed along to anyone to further investigate as though no allegations of any threats were made.

4. Further investigation leads to statements by the victims that clearly show the elements of terroristic threat. Case is forwarded to me, filed, and now set for trial. The investigator who took the witness statements did a thorough job, separating the eye-witnesses to get their detailed accounts, but it was three months after the fact--so still a little problematic.

Problem is, the responding deputy swears that he specifically told the victims that no terroristic threat occurred according to the information they had at the time. (Implication being that in the time the case sat idle, they informed themselves and gave statements that were exaggerated to show the offense.) Victims swear that the threats were clearly described at the scene and the deputy specifically told them that a terroristic threat case would be filed.

My Question: I have disclosed to defense counsel that my officer and my victim's stories do not match. Do I have any duty to call the officer to testify? Do I have any duty to tell the defense that I do not plan to call the officer, so that they may subpoena him and make sure he appears? Should I call the deputy and then grill him on all the things he didn't do--I REALLY don't like the idea of that....?

My Question: I have disclosed to defense counsel that my officer and my victim's stories do not match. Do I have any duty to call the officer to testify?

You do not have to call the officer to testify. As long as you have disclosed the fact that he says no terroristic threat info was conveyed by your cw, as well as any other brady info, you have done your duty. Be sure to document, preferably in a letter sent cmrrr, your disclosures for cya purposes.

Do I have any duty to tell the defense that I do not plan to call the officer, so that they may subpoena him and make sure he appears?

No...maybe. If defense attorney has a request for a subpoena list or asks you, then he will know whether you are or are not going to subpoena the officer. If you do issue a subpoena, as you know, he has a right to rely upon it to call the officer.

At this point I'd be inclined to guess the defense attorney WILL call the officer, since it negates your case. Count on it, in fact.

Should I call the deputy and then grill him on all the things he didn't do?

Why not? Do you really want to "grill" him though? Over Mesquite chips? What if he is telling the truth?

Whatever info the deputy has, it's going to come out anyway, and the info regarding what the cw did or didn't say is going to come out as well (whether you like it or not), either from the deputy or in the form of cross on your cw.

I prefer to get the evid that is bad for me in first. You're seeking the truth, whether it is good or bad for your case.

Present the whole deal in your opening. Look for any evidence that corroborates the threat, i.e. a 911 call, the radio log, even jail calls or letters from the defendant while in jail, etc.

You may not have any corroborating evidence, and depending on the credibility of that particular former deputy, you may wish to take into account the lack of outcry of terroristic threat.

You have several battles to fight. First, you have the officer not recalling things the cw's said to them. SWEARING MATCH. Then, you have the department's response to the complaints, which lead to charges being filed. I anticipate the defense will make much of both of these in their effort to reach reasonable doubt (where the guilty hang out).

As you probably already know, there are usually two sides to the story and oft times the truth lies somewhere in the middle.

Good luck

somewhere in the middle...that's exactly what I think, so we'll see what the jury comes up with. Thanks for your thoughts, good food for mine.