Donahue v. State
| Decision Date | 27 February 1985 |
| Docket Number | No. 82-1881,82-1881 |
| Citation | 464 So.2d 609,10 Fla. L. Weekly 518 |
| Parties | 10 Fla. L. Weekly 518 Robert Scott DONAHUE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
This appeal has its genesis in an admitted discovery violation. The question is whether the trial court erred by failing to conduct a Richardson hearing 1 before permitting the state to use the defendant's undisclosed oral statements for impeachment purposes. We find error and reverse.
Defendant was arrested and charged with trafficking in marijuana, a violation of section 893.135(1)(a)(1), Florida Statutes (1983). He filed a demand for discovery which, among other things, requested that the state disclose "[a]ny written or recorded statements and the substance of any oral statements, exculpatory or inculpatory, made by the accused and known to the prosecutor or his agents, together with the name and address of each witness to the statement."
The state answered with a printed form on which an "X" was typed next to the word "Yes," under the heading: "Written, recorded, and/or oral statements of Defendant." The state also gratuitously provided several police reports including one prepared by Detective Backman of the Jupiter Police Department. He had participated in a stakeout of a plane at the Lantana Airport and had observed four individuals unload marijuana into a truck driven by the defendant. Referring to the ensuing arrest, Detective Backman's report indicated that "[n]one of the subjects wished to make a written statement at this time." Backman was deposed prior to trial and, consistent with his written report, testified that none of the persons arrested made an incriminating statement.
Detective Backman's testimony differed at trial. He was prepared to testify about a conversation which he allegedly had with the defendant at the time of arrest. While searching the defendant's wallet, Backman found a receipt for the truck which was being used to haul the marijuana. According to Detective Backman, this instigated a conversation in which the defendant said "that $2500 was paid for [the truck] in cash the day prior to the aircraft being taken into custody and I [Backman] remarked about that and to that remark [the defendant] stated that he had just bought the truck and that it was for the use in this particular operation."
The state initially attempted to use this part of Detective Backman's testimony in its case-in-chief. However, after an objection by defense counsel, the state confessed error, admitting that its failure to disclose the defendant's oral statement constituted a discovery violation. Thus, the state rested its case without using the statement. The defendant then testified in his own behalf. He said that he had been paid $50 to drive the truck and explained that "[t]he job was to drive over to the Lantana Airport ... for the purpose of collecting somebody else's belongings out of an airplane so another person could repossess it." He also testified that he had purchased the truck recently after borrowing $2,500 from his father-in-law. At this point, the state attempted to impeach the defendant with the statements made to Detective Backman subsequent to the wallet search. Defense counsel objected, citing the admitted discovery violation. The state, while not retracting its confession of error, contended that the statement could be used for the limited purpose of impeaching the defendant's credibility under the doctrine announced in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). The trial court agreed and, without conducting a Richardson hearing, overruled the defense objection. The defendant was convicted and brought this appeal.
The state's admission, that its failure to disclose the substance of the defendant's oral statement constituted a violation of the discovery rule, obviates the necessity to dwell on this point. We would simply repeat
that this court will not countenance trial by ambush. The state has an affirmative duty, upon demand, to furnish full discovery. In particular, when the defendant has made an oral statement, the state must do more than answer "yes" on a printed discovery form. Rule 3.220(a)(1)(iii), Fla.R.Crim.P., requires the state to divulge "the substance of any oral statements ... together with the name and address of each witness to the statements." The printed discovery form now in use in the Fifteenth Judicial Circuit fails to satisfy this aspect of the rule. As the case at bar indicates, the present format of the local discovery form can be a trap for the prosecution and the defense alike; it should be corrected to assure full compliance with the rule.
Odoms v. State, 431 So.2d 1041 (Fla. 4th DCA 1983) (Hurley, J., concurring); see also Potts v. State, 399 So.2d 505 (Fla. 4th DCA 1981); Brey v. State, 382 So.2d 395 (Fla. 4th DCA 1980).
The unresolved issue in this case is whether the trial court was obligated to conduct a Richardson hearing before determining whether the state could use undisclosed evidence to impeach the defendant's credibility. To answer this question, we consider the purpose and reach of the rule announced in Richardson v. State, 246 So.2d 771 (Fla.1971). First, the rule: If, during the course of a trial, it is brought to the attention of the court that a party has failed to comply with Rule 3.220, Fla.R.Crim.P., the court should conduct an inquiry which, at a minimum, should include "such questions as whether the violation was inadvertent or wilful, whether the...
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