Downing v. State
| Citation | 13 Fla. L. Weekly 565,536 So.2d 189 |
| Decision Date | 22 September 1988 |
| Docket Number | No. 71629,71629 |
| Parties | 13 Fla. L. Weekly 565, 13 Fla. L. Weekly 719 Richard A. DOWNING, Petitioner, v. STATE of Florida, Respondent. |
| Court | United States State Supreme Court of Florida |
John F. Tierney, III, West Palm Beach, for petitioner.
Robert A. Butterworth, Atty. Gen. and Royall P. Terry, Jr., Asst. Atty. Gen., Tallahassee, for respondent.
Petitioner Richard Downing and his codefendant, Martha Munroe, were the objects of a reverse-sting operation run by the Florida Department of Law Enforcement (FDLE). They were charged with conspiracy to traffic in cocaine * and tried jointly. The jury found both guilty as charged. Downing's conviction and twenty-five year sentence were affirmed by the First District Court of Appeal. That court certified the following questions as being of great public importance.
or by witnessing the same--in the undercover reverse sting operation are discoverable as "statements" under Fla.R.Cr.P. 3.220(a)(1)(i).
Id. at 1036. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.
The discoverability of police reports under rule 3.220(a)(1) is unclear. The rule itself reads in pertinent part:
(i) The names and addresses of all persons known to the prosecutor to have information which may be relevant to the offense charged, and to any defense with respect thereto.
(ii) The statement of any person whose name is furnished in compliance with the preceding paragraph. The term "statement" as used herein means a written statement made by said person and signed or otherwise adopted or approved by him, or a stenographic, mechanical, electrical, or other recording, or a transcript thereof, or which is a substantially verbatim recital of an oral statement made by said person to an officer or agent of the State and recorded contemporaneously with the making of such oral statement, provided, however, if the court determines in camera proceedings as provided in subsection (i) hereof that any police report contains irrelevant, sensitive information or information interrelated with other crimes or criminal activities and the disclosure of the contents of such police report may seriously impair law enforcement or jeopardize the investigation of such other crimes or activities, the court may prohibit or partially restrict such disclosure.
The rule obviously contemplates the discovery of some police reports because it contains an exception for police reports containing sensitive information or information interrelated with other crimes.
In an early case it was held that police reports which do not quote a person directly or are not signed or shown to that person are not statements within the meaning of the rule so as to be subject to discovery. State v. Latimore, 284 So.2d 423 (Fla. 3d DCA 1973), cert. denied, 291 So.2d 7 (Fla.1974). However, in Miller v. State, 360 So.2d 46 (Fla. 2d DCA 1978), the court recognized that police reports could constitute statements of the police officers themselves and held them to be discoverable when the officers making the reports were actual eyewitnesses to or victims of the crime charged. Thereafter, the court in State v. Dumas, 363 So.2d 568 (Fla. 3d DCA 1978), cert. denied, 372 So.2d 471 (Fla.1979), adopted the rationale of Latimore and Miller, but the language of that opinion has been interpreted as leaving open the possibility that police reports are ipso facto discoverable. See Downing v. State, 515 So.2d at 1035.
Lockhart v. State, 384 So.2d 289 (Fla. 4th DCA 1980), recognized two theories under which police reports would be discoverable pursuant to rule 3.220(a). In the first instance, written statements made by victims or other witnesses contained in police reports would be discoverable if signed, approved or adopted by them or if such statements had been recorded or transcribed or if the reports contained substantially verbatim recital of such statements recorded contemporaneously by an officer or agent of the state. The second theory under which police reports would be discoverable was premised on the belief that the reports themselves may under some circumstances be considered statements of the officers who made them. After analyzing the Federal Jencks Act on which our rule was modeled, the court held that police reports would be discoverable as statements of the officers who made them when the officers were witnesses to the crime or had particularly crucial information pertinent to its prosecution.
Thereafter, in rejecting the contention that police reports were discoverable per se as statements under the rule, this Court in Breedlove v. State, 413 So.2d 1, 4, 5 (Fla.) cert. denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982), said:
The courts of this state have generally held that police reports are not "statements," except of the officers making them, and that generally they are not discoverable per se as statements of those officers.... The material in the instant reports does not comprise "statements" because the reports have not been signed, adopted, or approved by the persons (other than the officers) to whom they have been attributed, they do not appear to be substantially verbatim, and they were not recorded contemporaneously with their making.
(Citations omitted) (footnote omitted). Because it was not before us, we did not have to address the possibility that police reports would be discoverable where the officers themselves were witnesses to the crime.
In the instant case, Downing sought to discover the written reports of the FDLE officers who participated in the reverse-sting undercover operation. In the course of surveillance, the officers were eyewitnesses to Downing's actions. The First District Court of Appeal held that these reports should have been furnished to the extent that they constituted statements of the officers recounting the events which they either observed or participated in as the transaction which was the subject of the charge was occurring. We agree with this conclusion.
A defendant should be entitled to obtain the statement of any person who is a witness to the crime of which he is charged even when such witness is a law enforcement officer. On the other hand, we also agree that police reports are not ipso facto discoverable simply because they are made by an officer who is listed as a witness under rule 3.220(a)(1)(i). With respect to those instances in which a police report may contain crucial information personally obtained by the reporting officer who was not an eyewitness to the crime, we adopt the reasoning of the court in Lockhart v. State when it said:
Thus, we hold that police reports are not discoverable, per se, as "statements" of the officers who made them. We do not say, however, that they are only discoverable when the officers are "eyewitnesses" to the crime, as was the case in Miller, supra. We recognize the trial court's discretion to permit discovery in certain other instances. For example, a police officer's report describing the scene of a crime after the actual commission of the crime could be of singular importance in establishing a point crucial to the case at trial. Such an instance could exist where the officer has given conflicting statements regarding the victim's injured condition, yet states in his report that the victim was not injured. Thus, although there can be no doubt that there are instances in which a police officer's non-eyewitness testimony is highly probative of the guilt or innocence of the accused, such a situation is not presented here.
384 So.2d at 291. Therefore, in instances where a police officer's non-eyewitness testimony is highly probative of the guilt or innocence of the accused, the report is...
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...the crime scene. It is evident that there was no discovery violation. Therefore, a Richardson inquiry was not necessary. Downing v. State, 536 So.2d 189 (Fla.1988); Matheson v. State, 500 So.2d 1341 (Fla.1987); Bush v. State, 461 So.2d 936 (Fla.1984), cert. denied, 475 U.S. 1031, 106 S.Ct. ......
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