Lockhart v. State, 79-668

• Decision Date: 11 June 1980
• Docket Number: No. 79-668,79-668
• Citation: 384 So.2d 289
• Parties: David Lee LOCKHART, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 289

384 So.2d 289

David Lee LOCKHART, Appellant, v. STATE of Florida, Appellee.

No. 79-668.

District Court of Appeal of Florida, Fourth District.

June 11, 1980.

Jeffrey A. Glass and Patrick C. Rastatter of Glass, Rastatter, Stark & Tarlowe, Fort Lauderdale, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.

MOORE, Judge.

This is an appeal from a judgment and sentence adjudicating the appellant guilty of burglary and sexual battery. He was sentenced to concurrent terms of thirty years and fifteen years, respectively.

Appellant raises only one point which merits discussion. He claims that the trial court erroneously denied his pre-trial motion to compel discovery of certain police reports which he sought for use at trial. Appellant contends that the trial court's failure to compel the State to furnish these reports deprived him of the opportunity to effectively cross-examine witnesses against him at trial. He argues that the trial court's action constituted a departure from the mandatory requirements of Florida Rule of Criminal Procedure 3.220(a) which provides:

(a) Prosecutor's Obligation.

(1) After the filing of the indictment or information, within fifteen days after written demand by the defendant, the prosecutor shall disclose to defense counsel and permit him to inspect, copy, test and photograph, the following information and material within the State's possession or control:

(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 court shall prohibit the State from introducing in evidence the material not disclosed, so as to secure and maintain fairness in the just determination of the cause.

The State's chief witness against the appellant was the victim of the burglary-sexual battery. The other witnesses whose testimony is pertinent to this appeal were four officers of the Fort Lauderdale Police Department.

Appellant's motion to compel discovery of the police reports was based on two alternate theories: (1) the reports contained a substantially verbatim recital of an oral statement by a person (the victim) whose name had been furnished pursuant to Rule 3.220(a)(1)(i), and (2) the reports were written and signed, or otherwise adopted or approved by the officers who made them and whose names had been furnished to the defense. We affirm the denial of the motion to compel discovery and, for purposes of clarity, we will separate our discussion regarding the discoverability of police reports under each of these theories.

Applying the above cited rule to appellant's first theory, it is obvious that any "statement" made by the victim would be discoverable if it were signed, approved or adopted by her, since the prosecutor provided defense counsel with the victim's name as a person who had "information . . . relevant to the offense charged". Similarly, the victim's statement would be discoverable if it were a "stenographic, mechanical, electrical or other recording", or if her statement were a "substantially verbatim recital" of a statement made to a police officer and recorded contemporaneously with its utterance. Appellant thus contends that, because the police reports were based on statements made to the police by the victim, the reports were discoverable and necessary to cross-examine the victim.

The fallacy in appellant's argument is that the reports did not contain "substantially verbatim" statements of the victim. Nor were these reports adopted, approved, signed, or otherwise ratified by the victim. Furthermore, the reports reveal that the police did not write their reports contemporaneously with the victim's utterances. Simply stated, the reports are merely synoptic, composite summaries of the victim's previously rendered narrative of the events surrounding the crime. As such, we find this aspect of the present appeal to be directly apposite to the holdings of the Third District Court of Appeal in State v. Latimore, 284 So.2d 423 (Fla. 3rd DCA 1973) and State v. Dumas, 363 So.2d 568 (Fla. 3rd DCA 1978), and we therefore hold that the police reports were not discoverable as "substantially verbatim" statements of a witness.

Inasmuch as Florida Rule of Criminal Procedure 3.220(a) is modeled after the Federal Jencks Act, 18 U.S.C.A. Section 3500 (also Rule 16, Fed.R.Crim.P.), we find additional authority in interpretive federal decisions which support our holding. See, e.g., United States v. Peterson, 524 F.2d 167 (4th Cir. 1975); United States v. Greeley, 471 F.2d 25 (3rd Cir. 1972); United States v. Polizzi, 500 F.2d 856, 893 (9th Cir. 1974); United States v. Gaston, 608 F.2d 607...