Sears v. State, 94-2065

• Decision Date: 23 June 1995
• Docket Number: No. 94-2065,94-2065
• Citation: 656 So.2d 595
• Parties: 20 Fla. L. Weekly D1502 Calvin SEARS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 595

656 So.2d 595

20 Fla. L. Weekly D1502

Calvin SEARS, Appellant, v. STATE of Florida, Appellee.

No. 94-2065.

District Court of Appeal of Florida,

First District.

June 23, 1995.

Nancy A. Daniels, Public Defender, Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Douglas Gurnic, Asst. Atty. Gen., Tallahassee, for appellee.

MICKLE, Judge.

Appellant seeks review of his conviction for aggravated assault. We are compelled to reverse because the trial court erred in admitting evidence of oral statements made by appellant without first conducting a hearing pursuant to Richardson v. State, 246 So.2d 771 (Fla.1971).

During discovery, the state filed a disclosure notice indicating the existence of oral statements made by appellant. The substance of the oral statements was not revealed. At trial, the victim, Calvin Hunt, testified that appellant pointed a sawed-off shotgun at him in a threatening manner and that, after appellant had been arrested and charged, he asked Hunt to drop the charges and told him "that they wasn't going to find the gun; and he was going to beat this rap anyway, like he do in all other cases."

Defense counsel interposed a general objection to this testimony, whereafter it was agreed by all that the objection would be argued outside the presence of the jury following the completion of Hunt's testimony. During recess, defense counsel pointed out to the court that this testimony was a violation of the discovery rule in that defense had no notice that appellant had made these statements to Hunt. Before any discussion was had or any ruling rendered on this point, co-defense counsel stated that he wished to address the procedural impact of the statement as an impermissible comment on appellant's prior record. After hearing argument on this point, the trial court denied a motion for mistrial. No further argument was made, nor ruling entered, on the issue of the alleged discovery violation. The jury returned a verdict of guilty as charged.

On appeal, the state argues that appellant failed to make a proper objection to the trial court's failure to conduct a Richardson hearing. We disagree. In Brown v. State, 640 So.2d 106 (Fla. 4th DCA 1994), the court stated "[a]lthough a defendant must timely object to the use of the undiscovered evidence so that it is brought to the attention of the trial court, no magic words exist to trigger the requirement that the trial court conduct a Richardson hearing." Id. at 107. The court stated further that a waiver occurs only if the defendant fails to object to the discovery violation and that, once put on notice of a violation, the trial court has an affirmative obligation to conduct a hearing without the defendant's specifically requesting one. Id. In Brown, a defense objection on the basis that the state did not disclose a statement in discovery was held to be adequate to place the court on notice of the necessity for a Richardson hearing. See also Rath v. State, 627 So.2d 24 (Fla. 5th DCA 1993) (once trial court is put on notice of a discovery violation it is obligated to conduct a Richardson hearing); In the Interest of F.R., 539 So.2d 588 (Fla. 1st DCA 1989) (Richardson inquiry is required when it is brought to attention of the trial court that a discovery request has not been met). In the case at bar, we believe defense counsel's objection and notification to the trial judge that the statement had not been disclosed sufficiently triggered the requirement for a Richardson hearing.

Once the asserted discovery violation was brought to the court's attention, the trial judge was required to conduct an inquiry, rule on whether a violation occurred, and determine whether the evidence was...