Brown v. State

• Decision Date: 20 May 2015
• Docket Number: No. 4D13–2937.,4D13–2937.
• Parties: Jamie Deandre BROWN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

165 So.3d 726

Jamie Deandre BROWN, Appellant

v.STATE of Florida, Appellee.

No. 4D13–2937.

District Court of Appeal of Florida, Fourth District.

May 20, 2015.

Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

Opinion

STEVENSON, J.

Defendant challenges his convictions for sale of cocaine and two counts of sale of a schedule I drug, arguing that a discovery violation by the State and the trial court's resulting failure to conduct an adequate Richardson hearing compel reversal. We agree.

Defendant's convictions arose from the sale of drugs to the same undercover officer on November 14, 2012, and again on November 20, 2012, at the same location, a Burger King. According to the undercover officer, the first sale took place in the parking lot and the second in the bathroom. At trial, the undercover officer identified defendant as the man who sold him the drugs, testifying that, at the time, defendant had a very distinctive hair style—two long dreads pulled off to the side of his head. The undercover officer had recorded the two drug buys and the videos were introduced into evidence. Neither video, however, clearly depicts the seller and the date stamps on the videos did not match the dates of the drug buys. According to the officer, this discrepancy was due to the fact that, at the time, he did not know how to change the camera's setting.

At the outset of the trial, the State advised the court that, following defendant's December 2012 arrest, defendant gave a video-recorded statement to the same undercover officer to whom defendant was alleged to have sold the drugs. During the interview, defendant admitted he had twice met the officer at Burger King, nodding when the officer indicated the first time had been in the parking lot and the second in the bathroom. The State wanted to introduce the recorded interview.

Defense counsel objected. He acknowledged the State had provided him a copy of this video statement as part of the discovery submissions in other pending cases and that he reviewed the video, but asserted he had no idea the State had intended to introduce the video at this trial. Defense counsel asserted that his defense was that defendant had been misidentified, noting the recordings of the two drug buys did not clearly show the seller's face. Without conducting an inquiry into the reasons for the State's failure to provide defendant's video statement as part of the discovery in this case, the trial court ruled the tape was admissible.

Thereafter, the undercover officer testified he had interviewed defendant following his arrest, and defendant acknowledged having previously met the officer in Burger King's parking lot and bathroom. When the State sought to play the video for the jury, defense counsel again objected, arguing the State had committed a discovery violation and insisting the defense was prejudiced as the video undermined the misidentification defense. The trial court ruled there was no discovery violation as the video had been provided to defense counsel in connection with other cases. It is this ruling that forms the basis for defendant's appeal.

“ ‘A Richardson hearing is required when there is a possible discovery violation in order to flesh out whether there has indeed been a discovery violation.’ ” Thomas v. State, 63 So.3d 55, 59 (Fla. 4th DCA 2011) (quoting Landry v. State, 931 So.2d 1063, 1065 (Fla. 4th DCA 2006) ). To conduct a Richardson hearing, “ ‘the trial court must inquire as to whether the violation (1) was willful or inadvertent; (2) was substantial or trivial; and (3) had a prejudicial effect on the aggrieved party's trial preparation.’ ” Id. (quoting State v. Evans, 770 So.2d 1174, 1183 (Fla.2000) ). A trial court's rulings regarding the three-prongs of Richardson are reviewed for an abuse of discretion, but this discretion can be exercised only following a proper inquiry. See Kipp v. State, 128 So.3d 879, 881 (Fla. 4th DCA 2013) ; see also Barrett v. State, 649 So.2d 219, 222 (Fla.1994).

The trial court's failure to conduct a required Richardson hearing is not reversible error per se. See, e.g., M.H. v. State, 151 So.3d 32, 37 (Fla. 3d DCA 2014). But, where there has been an inadequate Richardson hearing, the discovery violation can be found harmless “ ‘[o]nly if the appellate court can say, beyond a reasonable doubt, that the defense was not procedurally prejudiced by the discovery violation....’ ” Id. (quoting Acosta v. State, 856 So.2d 1143, 1145 (Fla. 4th DCA 2003) ). “[I]t is the State's burden to show that the error was harmless, the State must show in the record that the defendant was not prejudiced by the discovery violation.” Casica v. State, 24 So.3d 1236, 1241 (Fla. 4th DCA 2009). “The state's burden to show a discovery violation to be harmless is ‘extraordinarily high.’ ” Kipp, 128 So.3d at 883 (quoting Hicks v. State, 45 So.3d 518, 524 (Fla. 4th DCA 2010) (quoting Cox v. State, 819 So.2d 705, 712 (Fla.2002) )).

In the instant case, the State committed a discovery violation when it failed to list defendant's video statement to police in its discovery submissions in this case. Florida Rule of Criminal Procedure 3.220 requires the State to provide names of witnesses present when recorded or unrecorded statement are taken from or made by defendant and to provide any written or recorded statements made by defendant, together with the names of witnesses to the statements. See Fla. R.Crim. P. 3.220(b)(1)(A)(i), (C). “[A] defendant is entitled to rely on the accuracy of the information disclosed by the prosecution pursuant to a discovery request under rule 3.200.” McArthur v. State, 671 So.2d 867, 870 (Fla. 4th DCA 1996). The “[f]ailure to give all of the required information is a discovery violation.” Kucher v. State, 758 So.2d 1165, 1166 (Fla. 2d DCA 2000). Moreover, “[t]he fact that the existence of the statement was previously revealed to the defendant does not mean that the state complied with the discovery rules.” D.R. v. State, 588 So.2d 327, 328 (Fla. 4th DCA 1991) (finding error in trial court's refusal to hold a Richardson hearing and rejecting State's argument that there was no discovery violation because statement had been disclosed a month earlier during a hearing).

In the face of the commission of a discovery violation, the trial court was required to conduct a Richardson hearing and required to inquire (1) whether the violation was willful or inadvertent; (2) whether the violation was trivial or substantial; and (3) whether the violation had a prejudicial effect on the defendant's trial preparation. State v. Evans, 770 So.2d 1174, 1183 (Fla.2000). Here, having found there was no discovery violation, the trial court failed to make any inquiry regarding the first two factors, rendering the hearing inadequate. Further, rather than put the burden on the State to demonstrate the lack of procedural prejudice to the defense, the trial court inquired only of the defense. See Cliff Berry, Inc. v. State, 116 So.3d 394, 418 (Fla. 3d DCA 2012) (recognizing Richardson inquiry is inadequate where trial court did not require State to demonstrate lack of procedural prejudice, but, instead,...