Lowery v. State, 91-2962

• Decision Date: 16 December 1992
• Docket Number: No. 91-2962,91-2962
• Citation: 610 So.2d 657
• Parties: 18 Fla. L. Week. D104 Russell Howard LOWERY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 657

610 So.2d 657

18 Fla. L. Week. D104

Russell Howard LOWERY, Appellant, v. STATE of Florida, Appellee.

No. 91-2962.

District Court of Appeal of Florida,

First District.

Dec. 16, 1992.

Rehearing Denied Jan. 22, 1993.

Nancy A. Daniels, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Sara D. Baggett, Asst. Public Defender, Tallahassee, for appellee.

ERVIN, Judge.

The sole issue raised by appellant, Russell Howard Lowery, is whether the trial court erred in allowing the state to introduce as rebuttal evidence a check which the state had failed to disclose during discovery. We conclude that the check's admission was error, and we therefore reverse the conviction and remand the case for new trial.

At appellant's trial for theft of an automobile, the state submitted evidence showing that Steven Friddell owned the truck allegedly stolen, and that he had arranged to have it towed to a shop for repairs. When Friddell attempted to obtain the truck from the shop some two or three weeks later, he discovered that the truck was at appellant's house. Although title to the truck was registered in appellant's name, both Friddell and his girlfriend, Debbie Tinker, denied giving the title to him.

The defense presented evidence through various witnesses disclosing that Friddell had offered the title to appellant as security for a drug debt, and that Tinker had given the title to him. Appellant explained that he occasionally delivered marijuana to Friddell and Tinker to sell, but as they often failed to pay him the full amount owed therefor, he began running a debt for them. He eventually cut off their supply due to nonpayment, and Tinker offered him the title to the truck as collateral for the debt. It was his understanding that the truck was his if they defaulted, and when they did not pay, he obtained the truck and transferred the title to his name.

During appellant's cross-examination, the state sought to have a $300 check signed by appellant marked as State's Exhibit No. 1 for identification. Defense counsel objected and requested a Richardson ¹ hearing on the grounds that this was the first time he had seen the check and that it was not listed on the state's discovery response. During the hearing conducted outside the jury's presence, the state explained that it had received the check from Tinker two days before the trial, but that it had not intended to use the check as evidence against appellant, and that its failure to disclose it was not intentional. The defense then conducted voir dire of Ms. Tinker who said that appellant, sometime during the end of October, wrote her the check for money that he owed both her and Friddell, but asked her not to cash the check until he notified them, because he did not then have sufficient funds to cover the check.

As the alleged theft occurred within three weeks of the date appellant reportedly had given the $300 check to Tinker, the defense argued that the discovery violation prejudiced its ability to proceed. In response, the prosecutor announced her withdrawal of any testimony concerning the check at that time, reserving, however, her right to use it during her case in rebuttal, "in which case I'm not required to provide it prior to." Defense counsel replied that the discovery rules apply to rebuttal. Nevertheless, the court ruled as follows:

All right. Well, for purposes of use at this point in time I'm going to find that there was, in fact, a discovery violation, that it was inadvertent, that the violation was substantial, and it does, in fact, affect the defendant's ability to proceed. Now, that's not to comment on whether or not you can use this in your rebuttal case. That simply is intended to address the Richardson hearing and what's been provided as far as discovery at this point in time.

The state subsequently called Debbie Tinker in rebuttal and was allowed to admit the check into evidence. Later, during closing statements, the prosecutor argued that the check was evidence showing that there had been no drug dealing and that Friddell and Tinker did not owe appellant any money. The jury found appellant guilty; hence, this appeal.

Florida Rule of Criminal Procedure 3.220(b)(1)(vi) and (xi) requires the prosecutor to disclose any tangible papers or objects which the prosecutor intends to use at trial. The prosecutor's duty to disclose is continuing. Fla.R.Crim.P. 3.220(j). This disclosure rule applies to all witnesses and evidence, including that sought to be introduced during rebuttal. Smith v. State, 500 So.2d 125, 126-27 (Fla.1986); Hicks v. State, 400 So.2d 955 (Fla.1981); Hatcher v. State, 568 So.2d 472, 474 (Fla. 1st DCA 1990), review denied, 577 So.2d 1328 (Fla.1991).

If, during the course of the proceedings, it is brought to the attention of the trial court that the state has failed to comply with rule 3.220, the court must conduct a hearing to determine whether the state...