Sanchez–andujar v. State

• Decision Date: 15 April 2011
• Docket Number: No. 1D10–1031.,1D10–1031.
• Citation: 60 So.3d 480
• Parties: Hector Luis SANCHEZ–ANDUJAR, Appellant,v.STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

60 So.3d 480

Hector Luis SANCHEZ–ANDUJAR, Appellant,
v.
STATE of Florida, Appellee.

No. 1D10–1031.

District Court of Appeal of Florida, First District.

April 15, 2011.

[60 So.3d 481]

Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.Pamela Jo Bondi, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.BENTON, C.J.

Hector Luis Sanchez–Andujar appeals his convictions for attempted first-degree murder of Orlando Cartagena–Torres and attempted second-degree murder of Abiezer Torres. The trial court excluded a key defense witness, albeit after conducting a Richardson hearing, unjustifiably rejecting less restrictive measures to cure any prejudice late disclosure of the witness may have occasioned. We reverse and remand for a new trial.

When a “discovery violation is committed by the defense, special importance attaches to the trial court's inquiry into alternative sanctions because exclusion of exculpatory evidence implicates the defendant's constitutional right to defend himself or herself.” McDuffie v. State, 970 So.2d 312, 322 (Fla.2007). See Comer v. State, 730 So.2d 769, 775 (Fla. 1st DCA 1999) (“ ‘In a criminal case, the exclusion of a defense witness for a discovery violation implicates a defendant's sixth amendment right to present witnesses as well as the fundamental right to due process.’ M.N. v. State, 724 So.2d 122[, 124 (Fla. 4th DCA 1998) ]; Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988).”).

On November 30, 2009, jury selection took place for a trial scheduled to begin on December 1, 2009.¹ Before jury selection,

[60 So.3d 482]

defense counsel filed a motion for continuance on grounds that one of the victims, Mr. Cartagena–Torres, had never been deposed, because he was still in federal custody, and that the state had listed an additional witness (Special Agent Dan McCaffrey whom defense counsel had not had the opportunity to depose) in a supplemental discovery exhibit filed only a week before, on November 23, 2009. The trial court denied the motion to continue the trial.²

Defense counsel also presented ore tenus an additional ground for the motion to continue the trial: Mr. Sanchez–Andujar had informed him earlier on November 30, 2009, that his son, Christian Sanchez, who had been living in Puerto Rico, was returning for the trial and could testify in support of his alibi. The trial judge directed defense counsel and the prosecutor to talk to Christian Sanchez, saying she would decide after that whether Christian would be allowed to testify.

On the following day, December 1, 2009, before the jury was sworn, defense counsel advised the trial court that Christian Sanchez had arrived from Puerto Rico the evening before, and that he should be at the courthouse, but that counsel had not yet spoken to him. Defense counsel also reported that he had “noticed the alibi to the State.” After this colloquy, the trial court instructed defense counsel to make no mention of Christian Sanchez during his opening statement to the jury, and the trial began.

At trial, the state put on evidence that Mr. Cartagena–Torres and Ms. Torres arrived (with friends) between 10:30 p.m. and 11:00 p.m. on July 24, 2008, at a night club where Mr. Sanchez–Andujar was already present. Carlos Santiago, a state's witness, was in the club that night, and saw Mr. Sanchez–Andujar and Mr. Cartagena–Torres arguing. Later, according to Mr. Santiago, when he saw Mr. Sanchez–Andujar in the bathroom talking on his cell phone, he suggested that Mr. Sanchez–Andujar leave the club, and Mr. Sanchez–Andujar responded that he was leaving, and was asking someone to pick him up because he did not have a car. Mr. Santiago testified he did not see Mr. Sanchez–Andujar again that night.

Mr. Cartagena–Torres and Ms. Torres remained until the club closed at 2:00 a.m. Later, outside the club, a car with lights off sped towards them, getting within arm's reach, before swerving and coming almost to a full stop. The driver's side was closest to Mr. Cartagena–Torres and, he testified, the car windows were down. Ms. Torres testified that she heard a shot, looked and saw Mr. Sanchez–Andujar inside the car, turned and tried to run, and was shot in the back. Mr. Cartagena–Torres testified that he saw Mr. Sanchez–Andujar in the driver's seat of the car with a gun, and that he tried to grab the gun, after Ms. Torres was shot, but that additional shots were fired and that one of the bullets struck him.

After the prosecution rested, defense counsel proffered the testimony of Christian Sanchez. Christian testified on proffer

[60 So.3d 483]

that he received a phone call from his father on the night of the shooting. Mr. Sanchez–Andujar told him he had had a run-in with somebody, left the site of the confrontation to avoid further problems, took a taxi but ran out of money, and asked Christian to pick him up and take him home. Christian testified that he picked Mr. Sanchez–Andujar up around 1:00 a.m. on July 25, 2008, and drove him home, and that Mr. Sanchez–Andujar did not leave again that night.

The trial court then asked if the prosecutor wanted to inquire of Christian. The prosecutor refused, arguing that Christian was an alibi witness who should have been disclosed to the prosecutor ten days before trial. The prosecutor maintained that Christian should not be allowed to testify because the state had not had an opportunity to obtain telephone records, or to depose the witness before trial. The trial court then ruled Christian would not be permitted to testify because the case was a year and a half old,³ because the witness was related to Mr. Sanchez–Andujar, because the witness had been in Puerto Rico, unavailable to any party until the last minute, and because he was an alibi witness disclosed to the prosecution only 48 hours earlier. With Christian's exclusion, Officer Valentine of the Jacksonville Sheriff's Office and Mr. Sanchez–Andujar himself became the only witnesses to testify for the defense.⁴

At the outset, we point out that the trial court had no authority to exclude witnesses under the alibi provisions of Florida Rule of Criminal Procedure 3.200 ⁵ because the state did not trigger any defense obligation by filing a written demand for notice of intention to claim an alibi.⁶ See Martin v. State, 41 So.3d 1100, 1102 (Fla. 4th DCA 2010) (“[R]ule 3.200 is for

[60 So.3d 484]

the benefit of the State, and thus, the State cannot take advantage of the requirements of rule 3.200 to the defendant's detriment when it has failed to comply with the rule's initial mandate by failing to file a written demand for a notice of alibi. Therefore, the trial court abused its discretion in excluding Martin's alibi witnesses because it was not authorized to exclude the witnesses under rule 3.200.”).

Nor is this a case where defense counsel failed to provide the trial court with enough information to necessitate a comprehensive Richardson hearing.⁷ Contrast Johnson v. State, 25 So.3d 662, 665–66 (Fla. 1st DCA), review denied, 43 So.3d 44 (Fla.2010) (concluding defense counsel did not provide the trial court with the information necessary to conduct a comprehensive Richardson hearing when defense counsel first revealed its intent to call a witness not included on the defense witness list after the close of the state's evidence and denial of a motion for judgment of acquittal, neither proffered the testimony of the proposed witness nor explained in any meaningful detail the content of that expected evidence, and only offered a cursory preview of the proposed testimony just before jury charge which was “largely devoid of substantive content” and “provided no basis for the court to assess what effect, if any, the defense's discovery violation had upon the State's ability to properly prepare for trial”).

The opinion in Richardson v. State, 246 So.2d 771, 775 (Fla.1971) sets out a three-part test that a trial court must apply before sanctioning any party...