Kidder v. State

• Decision Date: 12 June 2013
• Docket Number: No. 2D12–3535.,2D12–3535.
• Citation: 117 So.3d 1166
• Parties: Andrea KIDDER, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

117 So.3d 1166

Andrea KIDDER, Petitioner,

v.STATE of Florida, Respondent.

No. 2D12–3535.

District Court of Appeal of Florida,

Second District.

June 12, 2013.

Keith W. Upson of The Upson Law Group, P.L., Fort Myers, for Petitioner.

Sonya Rudenstine, Gainesville; James T. Miller, Jacksonville; and Michael Ufferman, Tallahassee, for Amicus Curiae Florida Association of Criminal Defense Lawyers.

Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Respondent.

CASANUEVA, Judge.

Andrea Kidder petitions this court for a writ of certiorari seeking to quash a discovery order that required her to disclose the results of a blood alcohol test. Because she was required to disclose the results of this scientific test pursuant to Florida Rule of Criminal Procedure 3.220(d)(1)(B)(ii), the discovery order did not depart from the essential requirements of law and the petition is therefore denied.

I. FACTS AND PROCEDURAL HISTORY

In November 2009, Ms. Kidder was involved in an automobile accident which resulted in the death of Bree Kelly.¹ At the request of the Florida Highway Patrol, emergency medical service personnel obtainedtwo blood samples from Ms. Kidder. The Florida Department of Law Enforcement (FDLE) analyzed one sample and determined that the alcohol content was 0.196 percent.

Ms. Kidder was thereafter charged by information with DUI manslaughter and vehicular homicide, and she elected to participate in pretrial discovery pursuant to rule 3.220(a). Ms. Kidder filed a motion to require FDLE to send the second blood sample to Wuesthoff Toxicology Laboratory to have the sample analyzed to determine its alcohol content. The trial court granted this motion and the second blood sample was sent to Wuesthoff for testing.

Thereafter the State moved to compel Ms. Kidder to provide it with the results of Wuesthoff's blood alcohol analysis pursuant to the reciprocal discovery provisions of rule 3.220(d)(1)(B)(ii). It argued that the rule requires a defendant, who has elected to participate in discovery, to disclose the results of scientific tests. The State further argued that the results of the scientific test did not meet the definition of work product as defined by rule 3.220(g)(1).

In opposition, Ms. Kidder asserted that the results of Wuesthoff's testing were protected work product and that compelling disclosure of the report would contravene the Fifth and Sixth Amendments to the United States Constitution. Ms. Kidder asserted that she did not intend to use the report at trial.

The trial court entered its order compelling Ms. Kidder to provide the State with a copy of Wuesthoff's report. We note that the report at issue is not included in the appendix and the transcript of the motion hearing does not indicate that the trial court viewed the report in camera or otherwise. However, Ms. Kidder does not assert that Wuesthoff's report contains the opinions, theories, or conclusions of her attorney or members of the attorney's legal staff.

II. ANALYSIS

A. Certiorari Review

“A petition for writ of certiorari is appropriate to review a discovery order when the order departs from the essential requirements of law, causing material injury throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.” Nussbaumer v. State, 882 So.2d 1067, 1071 (Fla. 2d DCA 2004). The last two requirements of this test are jurisdictional. Barker v. Barker, 909 So.2d 333, 336 (Fla. 2d DCA 2005).

We agree that discovery of information that could be considered work product may cause such irreparable injury if disclosed. Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). However, as discussed below, the Wuesthoff report does not contain work product.

B. Florida Rule of Criminal Procedure 3.220

Participation in the discovery process is not mandatory for a criminal defendant: “a defendant may elect to participate in the discovery process provided by these rules....” Fla. R. Crim. P. 3.220(a). Once this election occurs, it “triggers a reciprocal discovery obligation for the defendant” and both the prosecution and defendant are then bound “to all discovery procedures contained in these rules.” Id.

The defendant's reciprocal discovery obligation pertinent to the case at bar is set forth in rule 3.220(d)(1)(B)(ii) and requires a defendant to disclose and permit the inspection and copying of “reports or statements of experts made in connection with the particular case, including results of ... scientific tests, experiments, or comparisons.” See Abdool v. State, 53 So.3d 208, 219–20 (Fla.2010) (applying rule 3.220(d)(1)(B)(ii) to penalty phase proceedings and holding that appellant was required to provide the State with raw data from his mental health expert). Based on the plain language of rule 3.220(d)(1)(B)(ii), Ms. Kidder was required to disclose to the State the results of the scientific test Wuesthoff conducted on the blood sample.

Ms. Kidder urges this court to interpret rule 3.220(d)(1)(B)(ii) to require disclosure of a scientific test only when a defendant intends to call the expert who conducted the test as a witness. We believe that this interpretation would be contrary to the plain language of the rule. See Scipio v. State, 928 So.2d 1138, 1144 (Fla.2006) (“Because full and fair discovery is essential to these important goals, we have repeatedly emphasized not only compliance with the technical provisions of the discovery rules, but also adherence to the purpose and spirit of those rules in both the criminal and civil context.”).

Rule 3.220(d) provides as follows:

Defendant's Obligation.

(1) If a defendant elects to participate in discovery, either through filing the appropriate notice or by participating in any discovery process, including the taking of a discovery deposition, the following disclosures shall be made:

(A) Within 15 days after receipt by the defendant of the Discovery Exhibit furnished by the prosecutor pursuant to subdivision (b)(1)(A) of this rule, the defendant shall furnish to the prosecutor a written list of the names and addresses of all witnesses whom the defendant expects to call as witnesses at the trial or hearing. When the prosecutor subpoenas a witness whose name has been furnished by the defendant, except for trial subpoenas, the rules applicable to the taking of depositions shall apply.

(B) Within 15 days after receipt of the prosecutor's Discovery Exhibit the defendant shall serve a written Discovery Exhibit which shall disclose to and permit the prosecutor to inspect, copy, test, and photograph the following information and material that is in the defendant's possession or control:

(i) the statement of any person listed in subdivision (d)(1)(A), other than that of the defendant;

(ii) reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons; and

(iii) any tangible papers or objects that the defendant intends to use in the hearing or trial.

(Emphasis added.)

Subsection (d)(1)(B)(i), by referencing subsection (d)(1)(A), requires a defendant to provide the State with the statements of any person the defendant plans to call as a witness. Subsection (d)(1)(B)(iii) also specifically states that a defendant must provide to the State any tangible papers or objects that the defendant intends to use in a hearing or trial. Conversely, subsection (d)(1)(B)(ii) does not restrict the disclosure of reports of experts to only those experts a defendant plans to call as a witness. We conclude that the rule is clear and unambiguous in requiring a defendant to disclose the results of a scientific test like the one at issue in the present case, regardless of whether the defendant anticipates calling the person who conducted the test as a witness. See Weston TC LLLP v. CNDP Mktg. Inc., 66 So.3d 370, 375 (Fla. 4th DCA 2011) (“When a rule is clear and unambiguous, courts will not look behind the rule's plain language or resort to rules of construction to ascertain intent.”).²

C. Work Product

1. Federal and Civil Cases Involving Work Product

The Supreme Court first recognized the work product doctrine in a civil case, Hickman v. Taylor, 329 U.S. 495, 508, 67 S.Ct. 385, 91 L.Ed. 451 (1947), where the petitioner sought discovery of written and oral statements of witnesses in the respondent's files, even though the identity of those witnesses was well known and their availability to the petitioner was unimpaired. The Court held that the petitioner's attempt “to secure written statements, private memoranda and personal recollections prepared or formed by an adverse party's counsel in the course of his legal duties” without a showing of necessity or justification, fell outside the area of proper discovery and “contravenes the public policy underlying the orderly prosecution and defense of legal claims.” Id. at 510.

Several years later in United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975), the Supreme Court discussed the application of the work product doctrine in criminal cases, explaining that “[t]he interests of society and the accused in obtaining a fair and accurate resolution of the question of guilt or innocence demand that adequate safeguards assure the thorough preparation and presentation of each side of the case.”

At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case. But the doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system. One of those realities is that attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as...