State v. Evans
| Decision Date | 05 October 2000 |
| Docket Number | No. SC94673.,SC94673. |
| Citation | 770 So.2d 1174 |
| Parties | STATE of Florida, Petitioner, v. Bernard EVANS, Respondent. |
| Court | Florida Supreme Court |
Robert A. Butterworth, Attorney General, Michael J. Neimand, Bureau Chief, Criminal Appeals, and Lara J. Edelstein, Assistant Attorney General, Fort Lauderdale, Florida, for Petitioner.
John H. Lipinski, Miami, Florida, for Respondent.
We have for review the Third District Court of Appeal's decision in Evans v. State, 721 So.2d 1208 (Fla. 3d DCA 1998), which expressly and directly conflicts with our decision in Bush v. State, 461 So.2d 936 (Fla.1984), regarding whether nondisclosure of changed testimony can constitute a discovery violation requiring a Richardson1 hearing. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. As more fully explained below, we approve the decision in Evans and clarify our statements in Bush regarding the nondisclosure of changed testimony.
The State of Florida (the State) charged Bernard Evans (Evans) with second-degree murder and unlawful possession of a firearm while engaged in a criminal offense. Both charges related to the death of Thaddeus Scott (Scott), whose death resulted from multiple gunshot wounds. Prior to trial, the State identified Sylvia Kennedy Green (Green) as a witness in the case. In a statement given to the police shortly after the crime occurred, Green indicated that she "didn't see anything" with regard to the alleged criminal event. Similar to her police statement, Green did not indicate in a deposition taken by defense counsel that she had seen Evans shoot Scott.
At trial, however, Green testified on direct examination presented by the State that during a conversation she had with Evans the night before the shooting, Evans threatened to kill Scott. Green also testified during direct examination that she had actually seen Evans shoot Scott and she described the events. In describing the shooting, Green testified that she did not see Scott attack Evans, which directly contradicted Evans' statement to a police detective that he shot Scott only after Scott had attacked him.2 Green indicated that she had provided this new and different version of events to the police about one month before trial, and she admitted that she had lied in her initial statement to the police and also during her pretrial deposition testimony.
Defense counsel objected to the changes in Green's testimony on several occasions, but the trial court overruled those objections. At a side-bar conference during Green's direct examination by the State, defense counsel indicated that "we've been surprised by [Green's] direct testimony, for what [s]he's been talking about for the last hour didn't come up in her deposition." Further, after clarifying the exact scope of the changes in Green's testimony at the beginning of cross-examination, defense counsel asserted that the State had engaged in "prosecutorial misconduct" by failing to disclose prior to trial the changes in Green's testimony. Defense counsel moved for a mistrial based on the lack of disclosure, but the trial court did not rule on the motion at that time because it was focusing on another legal issue. Later during cross-examination (during another side-bar conference), defense counsel again expressed that it was unfair for the State to withhold from the defense the changes in Green's testimony.
After the State had concluded its case-in-chief and rested, defense counsel renewed the motion for mistrial based on the State's failure to disclose the changes in Green's testimony, but the trial court denied the motion. The defense rested its case after presenting no witnesses and then specifically requested that the court conduct a Richardson hearing concerning Green's changed testimony. The trial court conducted a hearing at that time and found that the State had not committed a discovery violation, and the court again overruled the defendant's motion for mistrial. Thereafter, the jury returned a verdict finding Evans guilty of second-degree murder with a firearm,3 and the trial court denied a motion for new trial filed by Evans in which he again sought relief asserting, in pertinent part, Green's changed testimony. The trial court proceeded to sentence Evans to fifteen years in prison with a three-year mandatory minimum term for use of a firearm. Evans appealed.
On appeal, the Third District reviewed Green's testimony and found that the trial court failed to conduct a Richardson hearing upon being advised that Green had changed her testimony. See Evans, 721 So.2d at 1210
. The Third District also determined that when the trial court did conduct a Richardson hearing, the hearing was inadequate. See id. The court reasoned that the questions posed by the prosecutor during Green's direct examination clearly showed that the State was aware of the changes in Green's testimony, and held that "in failing to disclose the change in testimony to the defense, the State failed to meet its obligations under Rule 3.220(j) [of the Florida Rules of Criminal Procedure]." Id. After finding that the State's discovery violation in Evans' case "was substantial and undeniably had a negative effect on defense counsel's ability to properly prepare for trial," the court reversed Evans' conviction and remanded for a new trial. See id. We accepted review based on express and direct conflict between the decision below and Bush, and we now address the conflict issue.4
The conflict issue in this case stems from this Court's statements in Bush with regard to whether nondisclosure of changed testimony can constitute a discovery violation. In Bush, a jury found the defendant guilty of first-degree murder, robbery with a firearm, and kidnapping in relation to the abduction and death of a convenience store clerk. See 461 So.2d at 937-38. After being sentenced to death on the first-degree murder charge, the defendant directly appealed to this Court. See id.
On appeal, the defendant asserted that the trial court should have either conducted a Richardson hearing or granted a mistrial because a state investigator's trial testimony contradicted his pretrial deposition testimony. See id. at 938. Specifically, the investigator testified in a pretrial deposition that a clerk from a nearby convenience store-which had been visited by the defendant-did not identify any photographs of the defendant during a photo lineup. See id. At trial, however, the investigator changed his prior testimony and testified that the store clerk did identify the defendant's photograph during a photo lineup. See id. After considering the defendant's arguments, this Court held that "[t]he prosecutor's failure to inform the defense of this change of testimony is not a discovery violation and does not constitute the absolute legal necessity required for a mistrial." Id. In so holding, this Court reasoned:
(); Street v. State, 636 So.2d 1297, 1302 (Fla.1994) (same).
Superficially, this Court's statements in Bush would seemingly preclude relief in cases such as this. Specifically, although the changed testimony at issue in this case differs significantly in nature and degree from the changed testimony considered in Bush, those differences do not negate this Court's statement in Bush that "unlike failure to name a witness, changed testimony does not rise to the level of a discovery violation and will not support a motion for a Richardson inquiry." 461 So.2d at 938. After considering this Court's statements in Bush along with Florida Rule of Criminal Procedure 3.220, other relevant case law, and the facts of this particular case, we find it necessary to further clarify the statements in Bush with regard to whether nondisclosure of changed testimony prior to trial can constitute a discovery violation.
Florida Rule of Criminal Procedure 3.220 sets forth the guidelines governing discovery in Florida criminal proceedings. Subdivision (a) of that rule provides in pertinent part:
(a) Notice of Discovery. After the filing of the charging document, a defendant may elect to participate in the discovery process provided by these rules, including the taking of discovery depositions, by filing with the court and serving on the prosecuting attorney a "Notice of Discovery" which shall bind both the prosecution and defendant to all discovery procedures contained in these rules. Participation by a defendant in the discovery process, including the taking of any deposition by a defendant ... shall be an election to participate in discovery and triggers a reciprocal discovery obligation for the defendant.
Fla. R.Crim. P. 3.220(a).5 The record in this case does not reflect whether Evans filed and served a "Notice of Discovery," but the record does show that he (1) filed two separate motions requesting that the court order the State to provide him with any criminal records of the victim; and (2) conducted at least one deposition. See id. Thus, it is clear that the provisions of rule 3.220 apply in this case.
Substantively, Florida Rule of Criminal Procedure 3.220(b)(1)(C) requires the State to disclose to a criminal defendant "the substance of any oral statements made by the defendant," and rule 3.220(j) provides:
(j) Continuing Duty to Disclose. If, subsequent to compliance with the rules, a party discovers additional witnesses or material that the party would have been under a duty to disclose or produce at the time of the previous...
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