Baker v. State, 82-1670

• Decision Date: 21 September 1983
• Docket Number: No. 82-1670,82-1670
• Citation: 438 So.2d 905
• Parties: Phil R. BAKER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 905

438 So.2d 905

Phil R. BAKER, Appellant, v. STATE of Florida, Appellee.

No. 82-1670.

District Court of Appeal of Florida Second District.

Sept. 21, 1983.

Rehearing Denied Oct. 31, 1983.

Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.

GRIMES, Acting Chief Judge.

This is an appeal from a conviction of grand theft in which the sole point is whether the court erred in permitting an undisclosed witness to testify without first conducting an adequate hearing as required by Richardson v. State, 246 So.2d 771 (Fla.1971).

At trial Lonnie White testified that he had been arrested for driving while under the influence of alcohol. Because this was his second arrest in two years, he expected to receive a jail sentence if convicted. The following morning White went to the Wag-On-Inn bar and told the proprietor about his arrest. Appellant overheard the conversation and informed White that he could fix the ticket since Pasco was his county. Appellant then made a telephone call and told White he would be back in touch with him in about an hour. The bar owner and another employee were called as witnesses to corroborate this conversation.

White further testified that appellant later called him at the bar and said that it would cost $3,500 to take care of the ticket. White gave appellant a partial payment of $2,100. Several weeks later, White left Florida for Indiana. He left his checkbook with one signed check in appellant's possession. The check was later completed in the amount of $1,650 and cashed by appellant. White missed a scheduled court appearance, and a warrant was issued for his arrest. When White telephoned appellant, he was informed that a public official required a $15,000 political contribution and that White owed $7,500. White sent appellant a money order for $1,000 and wired him an additional $6,500.

During cross-examination appellant's counsel elicited from White that he had confided in his wife concerning his DWI arrest. Counsel then made the point that his wife was not listed as a state's witness. The following morning the assistant state attorney announced that he wished to call Mrs. White as a witness. Appellant objected because her name was not furnished on the witness list. Following adjournment for lunch, the court held a hearing to consider whether to permit Mrs. White to testify. The assistant state attorney reported that until that morning the state had not talked to Mrs. White and did not know of her potential as a witness. She had been living in Indiana and had only come back to Florida to accompany her husband to the trial. Appellant's counsel stated that he had talked with Mrs. White during the lunch hour for about thirty minutes and that some of her testimony would be damaging to appellant. The court reasoned that the state had been somewhat neglectful for not listing Mrs. White as a witness but decided to permit her to testify. The court evidenced concern over the implication left with the jury that Mrs. White was an important witness that the state was not intending to call. Mrs. White's testimony that she received telephone calls from appellant urging her to tell Mr. White to send him $7,500 to fix the ticket was significant to the extent that it contradicted appellant's defense that White was simply repaying a loan.

The thrust of appellant's argument is that the court conducted an inadequate Richardson hearing because it failed to determine the prejudice accruing to the defense as a result of the failure to disclose Mrs. White's name on the witness list. We believe, however, that there was an adequate Richardson hearing. The record appears to reflect all of the available information on the subject which could have been developed. The failure to make formal findings concerning each of the pertinent Richardson considerations does not constitute reversible error. Ansley v. State, 302 So.2d 797 (Fla. 1st DCA 1974). The court's comment that it did not know whether Mrs. White's testimony would prejudice the appellant undoubtedly referred to substantive prejudice, whereas a Richardson inquiry is directed toward procedural prejudice. Wilcox v. State, 367 So.2d 1020 (Fla.1979). The more serious question is whether, given the knowledge of all the circumstances, the court erred in permitting Mrs. White to testify.

The state can hardly be faulted for not having considered Mrs. White as a potential witness until such time as counsel's cross-examination prompted it to do so. By the time Mrs. White took the stand, appellant's attorney had already talked to her and found out what she was going to testify. Appellant's attorney did not request a continuance in order to take her deposition. Although counsel was deprived of the remote possibility of obtaining impeaching evidence concerning Mrs. White's reputation in the community for truth and veracity, this is always the case when one whose name was not on the witness list is permitted to testify.

Richardson, itself, recognizes that once there has been an adequate inquiry into all the surrounding...