Holley v. State
| Decision Date | 05 January 2011 |
| Docket Number | No. 4D09-1834.,4D09-1834. |
| Citation | 48 So.3d 916 |
| Parties | Norman Lanel HOLLEY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
The defendant appeals his conviction and sentence for carrying a concealed weapon and possession of a firearm after being adjudicated delinquent. He argues the trial court erred in certain rulings, thereby depriving him of a fair trial. We agree in part and reverse.
The charges arose from a tip by a confidential informant that a young man possessed a gun at a Fort Pierce parking lot. The tip indicated that the man wore a black tee shirt, blue jeans, and a blue baseball cap. A detective relayed the information to another officer, who drove to the location with a back-up officer following behind. The two police cars pulled into the parking lot behind a blue Chevy Caprice where three men stood next to the driver's door.
Before putting his car in park, the lead officer saw the defendant reach for his front waistband, pull out a gun, open the driver's door, and throw the gun in the car. The lead officer reached for his service pistol and ordered the men to get down.
The back-up officer searched the three men, but did not find the gun. The lead officer told the back-up officer the defendant had thrown the gun in the car. When the back-up officer opened the door to retrieve the gun, he discovered a young woman sitting in the front passenger seat.
The defendant was arrested and charged with carrying a concealed weapon and possession of a firearm after being adjudicated delinquent. The State listed the female passenger as a witness, but she failed to appear for her defense deposition in response to a subpoena or a resulting order to show cause issued by the trial court.
At trial, the defendant twice objected to discovery violations, at which time the trial court unilaterally undertook a Richardson1 analysis. The trial court later restricted defense counsel's cross-examination of the female passenger, and disallowed defense counsel from arguing its position on a motion to suppress. We find the trial court's limitation on defense counsel's cross-examination of the female passenger reversibleerror, but also write to comment on the overall handling of this trial.
The first issue arose just after jury selection. The State advised the trial court of the need to substitute a witness due to the unavailability of another listed witness. The State explained that, although the lack of a permit was not an element of the charged crimes, defense counsel's questions during voir dire gave the jury the impression the defendant had the right to carry a firearm. The State needed the witness to testify that the defendant did not have a permit to carry a concealed firearm. Defense counsel objected and requested a Richardson hearing.
Without hearing argument from counsel on the Richardson analysis, the trial court found a discovery violation, but that it was inadvertent, trivial, and did not affect the defendant's ability to prepare for trial.
I'll accept it [at] face value that whether or not a person has a concealed weapons permit is not an element of the crime charged, and [Defense counsel's] questions during Voir Dire might have caused you to amend ... so I'll find it inadvertent. Whether it was trivial or substantial, in my mind it's ... it's fairly trivial because it doesn't relate to ... an element of the offense, but ... might be used to negate a ... possible ... affirmative defense.... [ ] Whether ... you've been prejudiced in being able to properly prepare for trial. The exclusion of evidence is the most harsh, draconian remedy available under the law, and the Court must consider less drastic alternatives.... If it was done mid-trial there [would] be a problem. [ ] No one's committed to any theory of defense, no one's made any irrevocable statements or assertions in opening that would ... cause prejudice.
After announcing its findings, the trial court gave defense counsel an opportunity to speak with the witness.
The second Richardson issue concerned the female passenger's failure to appear for the defense deposition. Defense counsel argued that the female passenger's failure to appear constituted a discovery violation and warranted her exclusion. Once again, the trial court single-handedly conducted the Richardson analysis.
THE COURT: Okay, well I don't know that it's a Richardson violation insofar it's not that the State did something in failing to fulfill its obligations under 3.220, but I still think the third prong of Richardson is instructive and analogous, and that's the prejudice prong regarding the witness fail[ing] to appear at a deposition. And the remedies always ... I mean it's so easy to say, "Exclude Evidence, Exclude Witnesses." Understanding the case law that I'm bound and obligated to follow says that is the [ ] harsh[est] draconian remedy available under the law that should be the absolute last resort. The existence of [the female passenger] has been known since day one in this case.... The ... rather than exclude evidence I would ... certainly give you time to talk to her. The fact that she failed to appear at a deposition in and of itself would not support the harsh remedy exclusion of evidence under State versus Consman (phonetic) the Courts' noted properly that the right to take a deposition is not a Constitutional right.... I've heard nothing [ ] ... that would suggest to me that the harsh remedy of exclusion is necessary. But what I will do is, I will take a recess to give you a chance to talk to [the female passenger]. I'm not even go[ing][to] put a time limit on it, you just come get me when you're ... when you've had a chance to talk to her.
We find no error in these ultimate rulings, but we do not condone the trial court's unilateral manner in addressing Richardson.
"Once a trial court has notice of an alleged discovery violation, the trial court is obligated to conduct a Richardson hearing." Lewis v. State, 22 So.3d 753, 757 (Fla. 4th DCA 2009). When an adequate Richardson hearing is conducted, we review the trial court's decision to admit the evidence for an abuse of discretion. Wiltzer v. State, 756 So.2d 1063, 1066 (Fla. 4th DCA 2000).
[T]he court's discretion can be properly exercised [o]nly after the court has made an adequate inquiry into all of the surrounding circumstances. Without intending to limit the nature or scope of such inquiry, we think it would undoubtedly cover at least such questions as whether the state's violation was inadvertent or wilful [sic], whether the violation was trivial or substantial, and most importantly, what effect, if any, did it have upon the ability of the defendant to properly prepare for trial.
Ramirez v. State, 241 So.2d 744, 747 (Fla. 4th DCA 1970).
Here, the trial court short-circuited the Richardson hearings in both instances. Without allowing an opportunity for the defense to state its position, and without asking the State any questions, the trial court single-handedly addressed the issue. This is not the procedure required by Richardson.
The role of a trial court is to be a neutral arbiter and to rule on issues presented to it. It is not the role of the trial court to be prosecutor, defense counsel, and arbiter. While we find no error in the ultimate outcome of these issues, the trial court should allow the parties to play their roles in the proceedings and the court should restrict itself to conducting an adequate inquiry into the surrounding circumstances so that it can rule appropriately.
The defendant next argues error in the trial court's limitation on defense counsel's cross-examination of the female passenger. It is this error which causes us to reverse.
The State suggests the issue was unpreserved because defense counsel did not proffer the questions to be asked. We disagree. The defendant attempted to ask the female passenger about her failure to appear for a deposition even when the trial court ordered her to appear. Defense counsel advised the court that the questions would show the female passenger's motive, bias, and lack of trustworthiness. We find that defense counsel sufficiently preserved the issue. See Coxwell v. State, 361 So.2d 148, 151-52 (Fla.1978).
"The trial court has broad discretion in determining the relevance of evidence and such a determination will not be disturbed absent an abuse of discretion." See Heath v. State, 648 So.2d 660, 664 (Fla.1994). That discretion is limited by a criminal defendant's Sixth Amendment right to confront his accusers. See Steinhorst v. State, 412 So.2d 332, 337 (Fla.1982).
"Any party, including the party calling the witness, may attack the credibility of the...
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