Cooper v. State

• Decision Date: 21 November 1979
• Docket Number: No. 53964,53964
• Citation: 377 So.2d 1153
• Parties: Mark COOPER, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 1153

377 So.2d 1153

Mark COOPER, Petitioner, v. STATE of Florida, Respondent.

No. 53964.

Supreme Court of Florida.

Nov. 21, 1979.

Rehearing Denied Jan. 17, 1980.

Bennett H. Brummer, Public Defender, and Kurt L. Marmar, Asst. Public Defender, Miami, for petitioner.

Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., Miami, for respondent.

ADKINS, Acting Chief Justice.

This cause is before us by petition for writ of certiorari to review the decision reported as Cooper v. State, 356 So.2d 911 (Fla. 3d DCA 1978) on grounds of direct conflict with Cumbie v. State, 345 So.2d 1061 (Fla.1977); Hernandez v. State, 348 So.2d 1224 (Fla. 3d DCA 1977); and Briskin v. State, 341 So.2d 780 (Fla. 3d DCA 1976). Art. V, § 3(b)(3), Fla.Const.

Cooper was tried before a judge without a jury on a charge of malicious destruction of personal property. The case turned on the credibility of Cooper's ex-wife, Melanie, who was the sole eyewitness to the crime. Cooper and two others testified he was not present when the destruction occurred. After his cross examination of Melanie the public defender requested an In camera inspection to determine the impeachment value, if any, of sworn statements Melanie allegedly made to the state attorney. The trial judge denied the request and the Third District Court of Appeal affirmed on the basis that the defense had access to the statement via discovery prior to trial. Judge Nathan dissented, saying, Inter alia :

The information, which apparently was based on the data supplied by Ms. Cooper, charged that the alleged offense was committed on August 10, 1975, nearly a month prior to the date she specified at trial. And yet, when defense counsel, who had been appointed only two days prior to trial and had had minimal opportunity for preparation, sought an in camera review of the statement which might provide a documentary basis for impeaching the credibility of appellant's sole accuser in a situation where the record reveals initial reluctance on the part of the police to make an arrest, the court denied the request and relied instead on the prosecutor to have made a determination the trial judge alone is authorized to make. See Cumbie v. State, 345 So.2d 1061 (Fla.1977); Briskin v. State, 341 So.2d 780 (Fla. 3d DCA 1976). (Footnotes omitted.)

356 So.2d at 912-13.

In Cumbie this Court reemphasized its holding in Richardson v. State, 246 So.2d 771 (Fla.1971), that the trial judge must make full inquiry into the circumstances surrounding a violation of the Florida Rules of Criminal Procedure to determine whether the defendant was prejudiced thereby. An appellate court's examination of the record is not a substitute for "a trial judge's determined inquiry into all aspects of the state's breach of the rules." 345 So.2d at 1062.

The state maintains there was no violation of the rules in Cooper ; hence, there was no need for a Richardson inquiry.

We disagree. Cooper's request included the allegation that the statements were not made available by the state although there had been a defense demand for discovery. If true, the state did breach its duty to disclose such statements. Fla.R.Crim.P. 3.220(a)(1)(i), (ii); Ramirez v. State, 241 So.2d 744 (Fla. 4th DCA 1970). The trial judge should have inquired at least as to the Existence of a violation by the state. Only then could the need arise for an inquiry as to prejudice resulting from the breach. In Briskin v. State the defendant demanded discovery of certain police files which a state witness used to refresh his recollection on the stand. The state argued the files were not material and thus not subject to disclosure. After brief inspection the trial judge agreed and denied the demand for discovery. The Third District Court of Appeal reversed saying:

"The trial court should have made a thorough inspection of the requested material; the ultimate determination as to its susceptibility to discovery by the defendant should have been based upon (a different) test . . . ."

341 So.2d at 783.

In the instant proceeding the trial judge made no inquiry whatsoever but merely stated: "I am sure that if there was any Brady material available it would long since have been supplied to the defendant or his counsel." 356 So.2d at 913, fn. 2.

This bare assumption of state compliance is insufficient. Failure to disclose discoverable material is reversible as a matter of law absent a Richardson inquiry. Lavigne v. State, 349 So.2d 178 (Fla. 1st DCA 1977); Cumbie v. State, supra.

The decision of the district court of appeal is quashed and the cause remanded to the district court with instructions to reverse the judgment and further remand the cause for a new trial.

It is so ordered.

BOYD, OVERTON and SUNDBERG, JJ., concur.

ALDERMAN, J., dissents with an opinion.

ALDERMAN, Justice, dissenting.

I dissent on the basis that we have no jurisdiction to review the decision of the district court. Petitioner contends that the present decision conflicts with Cumbie v State, 345 So.2d 1061 (Fla.1977); Hernandez v. State, 348 So.2d 1224 (Fla. 3d DCA 1977); and Briskin v. State, 341 So.2d 780 (Fla. 3d DCA 1976), Cert. denied, 348 So.2d 953 (Fla.1977). These cases, however, are factually and legally distinguishable from the present case and do not create the conflict requisite to vest this Court with jurisdiction.

The district court in the present case held:

When a defendant waits until the middle of a trial to request a statement That he knew to be in existence prior to trial, the trial court will not be held in error for...