Guillen v. State, 3D14–1540.

• Decision Date: 13 April 2016
• Docket Number: No. 3D14–1540.,3D14–1540.
• Citation: 189 So.3d 1004
• Parties: Sandor Eduardo GUILLEN, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

189 So.3d 1004

Sandor Eduardo GUILLEN, Appellant,

v.The STATE of Florida, Appellee.

No. 3D14–1540.

District Court of Appeal of Florida, Third District.

April 13, 2016.

Law Offices of Matthew Troccoli, P.A., and Matthew J. Troccoli, for appellant.

Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant Attorney General, for appellee.

Before ROTHENBERG, LAGOA, and SALTER, JJ.

ROTHENBERG

, J.

Sandor Eduardo Guillen ("the defendant") appeals his criminal convictions on the grounds that the trial court abused its discretion by: (1) denying his motion for a continuance; (2) denying his motion to preclude the State from calling William Wright ("Wright") as an expert witness; and (3) permitting the State to introduce photographs of the deceased victim's injuries.¹ Because the defendant failed to preserve the first issue for appellate review and the trial court did not abuse its discretion on the remaining two appellate issues, we affirm.

BACKGROUND

In 2012, the defendant was speeding on a busway in his Land Rover while intoxicated when his vehicle slammed into a minivan carrying Kaely Camacho ("the victim") and her father and sister. After the collision, rather than rendering aid, the defendant fled the scene and was ultimately arrested. The victim later died from her injuries.

The defendant was ultimately charged with three first degree felonies: (1) DUI manslaughter with failure to render aid; (2) vehicular homicide with failure to render aid; and (3) leaving the scene of a crash involving death. The defendant pled not guilty.

The relevant procedural history is as follows. Approximately ten days prior to the scheduled February 25, 2014 trial, a new prosecutor was assigned to prosecute the case. On February 17, 2014, after reviewing the file, the newly assigned prosecutor listed Wright as an expert witness, but indicated to defense counsel that she would probably not call Wright at trial. Thereafter, the State moved for a sixty-day continuance because, among other reasons, the State needed time to meet with Wright and to prepare for trial, and defense counsel needed time to depose Wright. On February 19, 2014, the trial court heard the State's motion for a continuance. At the hearing, the defendant objected to the listing of Wright as a witness, but stated that if the trial court permitted the State to list Wright as a witness, the defendant would then join with the State in requesting a continuance.

The trial court denied the joint motion for a continuance, stating that there was sufficient time before trial to conduct the necessary depositions and prepare for trial.

The State deposed the defendant's accident reconstruction expert witness, Miles Moss ("Moss"), on February 21, 2014, at which time the State learned that Moss had revised his vehicular speed calculations from what he had previously provided in his report. As a result, the State immediately informed the defendant that it intended to call Wright as a witness at the trial, and the defendant deposed Wright.

On February 24, 2014, after deposing Wright, the defendant moved to preclude the State from calling Wright as an expert witness based on the late disclosure of Wright as a witness. The State responded that the late disclosure of Wright as a witness was caused, in part, by the defendant's failure to disclose that the defendant's expert, Moss, had revised his vehicular speed calculations, and that these revisions required the opinion of a more experienced expert, like Wright, to provide rebuttal testimony. The trial court denied the defendant's motion to preclude Wright from testifying as a witness.

Prior to the start of trial on February 25, 2014, the defendant asked the trial court to note his continuing objection to Wright being called as a witness. In response, the trial court conducted a Richardson² hearing to determine whether the State had committed a discovery violation and if so whether Wright should be excluded as a witness. The State explained that it only decided to call Wright after deposing the defendant's expert, Moss, and learning that although Moss had changed his testimony several weeks earlier, no one had disclosed this fact to the State. Although the trial court found insufficient procedural prejudice to warrant exclusion of Wright as a witness, the trial court reset opening statements to the following day to allow defense counsel to consult with his own expert regarding Wright's expected testimony, and the trial court further ordered the State to make its experts available to defense counsel.

The defendant also objected before and at trial to the admission of certain photographs of the victim's injuries, arguing that they were unfairly prejudicial. The trial court overruled the objections, reasoning that the probative value of the objected-to photographs was not outweighed by their prejudicial effect.

After a four-day jury trial, the defendant was convicted on all three counts,³ and after his motion for a new trial was denied, he filed the instant appeal.

ANALYSIS

I. Denial of Defendant's Motion for a Continuance

First, we find that the defendant failed to preserve for appellate review the denial of his motion for a continuance. Although defense counsel renewed his motion to exclude Wright as a witness, he did not seek a continuance after the trial court denied his motion to exclude Wright as a witness, and, in fact, announced that he was ready for trial.

The record reflects that after the trial court denied the defendant's motion to exclude Wright, the trial court specifically asked the defendant if he was ready for trial.

[The State]: It doesn't sound as if [defense counsel] is asking for additional time. I don't know if he is or not.

[Defense counsel]: I have—other than not waiving the objection to the expert's [sic] post Perez, I've made the best of the Court's order in taking the deposition and done my best to get ready.

The Court: Are you prepared to go to trial, sir?

[Defense counsel]: Yes.

Because the defendant failed to renew his motion for a continuance at the start of the trial and defense counsel actually stated that he was prepared to go to trial, the defendant failed to preserve for appellate review the trial court's denial of his motion for a continuance. See McCray v. State, 369 So.2d 111, 112 (Fla. 1st DCA 1979)

("[A]ppellant has not properly preserved for appellate review his pretrial motion for continuance since it was not renewed at the time of the trial; moreover, appellant's counsel indicated at trial that he was in fact ready for trial."); Riggins v. State, 283 So.2d 878, 879–80 (Fla. 1st DCA 1973) (holding that the defendant waived his motion for a continuance when he failed to object at the time of trial).

However, even if the defendant had preserved for appellate review the denial of his motion for a continuance, we would still affirm because no prejudice has been demonstrated. A reviewing court will not reverse a trial court's denial of a motion for a continuance unless the trial court abused its discretion. Bouie v. State, 559 So.2d 1113, 1114 (Fla.1990)

. "An abuse of discretion is generally not found unless the court's ruling on a continuance results in undue prejudice to the defendant." Randolph v. State, 853 So.2d 1051, 1062 (Fla.2003).

A trial court does not abuse its discretion by denying a motion for a continuance if the defendant will not suffer undue prejudice. See Randolph, 853 So.2d at 1062

. The defendant claims that he suffered prejudice because he did not have sufficient time to fully understand the "drag factor" Wright used to calculate the speed of the two vehicles involved in the crash. For the following reasons, we disagree.

A defendant will generally suffer no prejudice if he was aware of the substance of the witness's testimony and was able to depose the witness prior to trial. See Diaz v. State, 132 So.3d 93, 118 (Fla.2013)

(finding no abuse of discretion where the trial court denied the defendant's motion for a continuance to prepare a rebuttal to the State's expert's testimony because the defendant was previously aware of the substance of the testimony of the witness); Cooper v. State, 336 So.2d 1133, 1139 (Fla.1976) (holding that the trial court did not abuse its discretion by denying a motion for a continuance where an expert was added as a witness on the third day of trial, but the defendant was given an opportunity to depose the witness before the witness testified at the trial).

In the instant case, the defendant was not surprised by Wright's testimony regarding the "drag factor" he relied on in calculating the speed of the vehicles at the time of the crash. All of the accident reconstruction witnesses, including the State's previously listed witnesses, Det. Perez and Sgt. Greenwell, and the defendant's own expert witness, Moss, relied on the "drag factor" to calculate the speed of the vehicles. Sgt. Greenwell's and Det. Perez's drag factor calculations differed substantially from Moss's calculations. Thus, the defendant should have known that the drag factor calculations were in dispute well before the State added Wright as a witness. Additionally, the defendant deposed Wright on February 24, 2014, and had three days to evaluate Wright's calculations before Wright took the stand on February 27, 2014.

We are also unpersuaded by the defendant's argument that it created an undue burden upon defense counsel to prepare for Wright's testimony in the days leading up to the trial. As the Florida Supreme Court stated, "[o]ur rules were not designed to eliminate the onerous burdens of trial practice." Cooper, 336 So.2d at 1138

. The fact that defense counsel had only a few days prior to trial to consider Wright's largely cumulative testimony does not establish undue prejudice. See, e.g., Gause v. State, 270 So.2d 383, 384 (Fla. 3d DCA 1972) (affirming the trial court's denial of a motion for a continuance and rejecting the defendant's argument that his new defense counsel, who was substituted only five...