McFadden v. State
Decision Date | 15 July 2009 |
Docket Number | No. 4D08-2098.,4D08-2098. |
Citation | 15 So.3d 755 |
Parties | Joseph Eugene McFADDEN, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Carey Haughwout, Public Defender, and Christine C. Geraghty, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
Defendant had a business relationship with one Ritter selling audio systems and parts. They had a dispute over money. Ritter and a friend went to defendant's house, where he lived with his sister, and demanded a sum of money. Racial epithets were heard. Ritter claimed defendant accosted him with a shotgun in the front yard, which he then tried to take from defendant. Bystanders joined in the fray. Ritter suffered a concussion and a broken ankle. He said defendant and his friends left with some of his audio equipment.
At trial defendant tried to show self defense. He called his sister to testify. She missed the affray but saw defendant walk into the house afterwards. She said her brother did not have a gun and that he walked into the house afterwards with nothing in his hands. She said there had never been a gun in their house.
The State called a detective in rebuttal. He testified that he spoke to the sister on the day before the incident. She told him of her concerns about her brother, that he possessed a shotgun. Defendant immediately objected, arguing a discovery violation because this conversation had never been disclosed to the defense. The State said it did not know she was going to say there were no guns in the house. The court overruled the objection without inquiry. The court explained that the State did not know what defendant's witness was going to say. On appeal, defendant argues this discovery violation requires a new trial. We agree.
Florida Rule of Criminal Procedure 3.220(b)(1) requires the State to disclose to the defense, among other things, the following:
[e.s.]
Fla. R.Crim. P. 3.220(b)(1)(B). Richardson v. State, 246 So.2d 771 (Fla. 1971), obligates the trial court to conduct an inquiry into discovery violations and determine the effects of non-disclosure and the extent of any prejudice to the defense. In Scipio v. State, 928 So.2d 1138 (Fla.2006), the court explained:
928 So.2d at 1144 (internal citations omitted). We have no trouble in concluding that the State's failure to disclose the substance of the detective's testimony was directly contrary to the purpose and spirit of this provision. If the State is guilty of a discovery violation it is required to show beyond any reasonable doubt that the violation did not materially hinder defendant's trial preparation or strategy. Scipio, 928 So.2d at 1150. It has not done so here.
The State argues that rule 3.220(b)(1)(B) did not cover the oral statement of the police detective because it was not a written statement. The rule's operative term is includes ("term `statement' as used herein includes ..."). The State would have us understand that includes is here synonymous with comprise. We reject this interpretation.
The standard meaning of the word includes is not as a term of limitation but only as a partial listing of a larger whole. See AMER. HERITAGE DICT. (3d ed.) 913 ("to take in as a part, an element, or a member; to contain as a secondary or subordinate element; to consider with or place into a group, class, or total.").1 Indeed, one eminent authority on language has stressed that includes should not be employed when comprises is intended, as the State would have us do here:
H.W. Fowler, DICT. OF MODERN ENGLISH USAGE (2d ed.) 275.
Admittedly includes is sometimes used uncritically to signify a full listing, one meant to cover exhaustively the entire specified set. But using include in place of comprise without qualifiers to mean a thorough listing raises an inherent ambiguity, as this usage note explains:
AMER. HERITAGE DICT. (3d ed.) 913 (examples and illustrations omitted). Doing so with this rule of criminal procedure produces an unnecessary ambiguity.2
Defendant is entitled to a new trial where all other issues raised on this appeal may be revisited in the trial court.
Reversed.
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Discovery
...is included in the provisions of rule 3.220(b)(1) requiring the state to disclose all “statements” from witnesses. McFadden v. State, 15 So. 3d 755 (Fla. 4th DCA 2009) At a pretrial conference, the defense complained that it had not been told that a police officer was going to be used as an......