State v. Sowers, 1D99-939.

• Decision Date: 22 May 2000
• Docket Number: No. 1D99-939.,1D99-939.
• Citation: 763 So.2d 394
• Parties: STATE of Florida, Petitioner, v. Joseph R. SOWERS, Respondent.
• Court: Florida District Court of Appeals

763 So.2d 394

STATE of Florida, Petitioner, v. Joseph R. SOWERS, Respondent.

No. 1D99-939.

District Court of Appeal of Florida, First District.

May 22, 2000.

Robert A. Butterworth, Attorney General; and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Petitioner.

Nancy A. Daniels, Public Defender; and Carol Ann Turner, Assistant Public Defender, Tallahassee, for Respondent.

BROWNING, J.

The State of Florida seeks an interlocutory appeal challenging a nonfinal pretrial order of the circuit court granting a defense motion in limine. As a result of the order, the State was precluded from introducing as evidence the testimony of one of its key witnesses, Russell Byrd. See Fla. R.Crim. P. 3.220(n) (providing sanctions for discovery rule violation). Treating this appeal as a petition for writ of common-law certiorari pursuant to Florida Rule of Appellate Procedure 9.040(c) and State v. Keel, 557 So.2d 907 (Fla. 1st DCA 1990), we conclude that the State has not met its heavy burden to demonstrate that the lower tribunal departed from the essential requirements of law in granting the motion in limine excluding Byrd's testimony after the court conducted a proper Richardson¹ hearing. Therefore, we deny the petition.

Joseph R. Sowers went to Santa Rosa County police and sheriffs department authorities on January 31, 1998, and disclosed that he had accidentally shot and killed his friend Ruben McCurdy ten days earlier at the trailer where the two men lived in Jay, Florida. After the autopsy indicated that the track of the wound on the victim was inconsistent with Sowers' initial story to the authorities, Sowers told law-enforcement personnel that after having an altercation with the victim, Sowers had fired the shotgun without aiming it, striking the victim in the head and killing him. On February 23, 1998, the State charged Sowers with the second-degree murder of McCurdy with a shotgun and grand theft of a firearm (McCurdy's shotgun).

Initial discovery promptly began after the filing of the State's information, and Assistant State Attorney Butler filed the State's March 1998 response to the request for discovery. Amended discovery responses were filed in June and July 1998. A superseding indictment, filed on July 2, 1998, charged Sowers with the first-degree premeditated murder of McCurdy with a weapon. On July 14, Assistant State Attorney Molchan filed an amended discovery exhibit listing witnesses and copies of reports. On August 19, Assistant State Attorney Rimmer took over the prosecution of the case and filed a notice of the State's intent to seek the death penalty. The defense's October 1998 motion to re-depose State witnesses was granted without an objection because premeditation was now an issue. In November, the case was set for trial in early March 1999. On February 2, 1999, the State filed its fifth and sixth amended discovery exhibits.

In its February 4, 1999, seventh amended discovery exhibit, the State listed, for the first time, Russell Byrd and Richard Kelley as individuals who had heard Sowers state that he had planned the murder in advance. Byrd's address was listed in care of his attorney in Milton, Florida. Kelley's address was shown as the Santa Rosa County Jail. On February 10 and 19, the defense filed additional discovery responses listing more witnesses whom it intended to call. The defense also filed a list of penalty phase witnesses.

On March 2, 1999, the defense filed a motion in limine alleging that the State had obtained documents from Byrd sometime in July 1998; that Byrd had information relating to premeditation and would testify that Sowers had told him of Sowers' plan to kill McCurdy; that the State had disclosed Byrd as a possible witness on February 3, 1999, but had given no address; that subsequently the defense was told that the State was not planning to call Byrd as a witness because he could not be found; that sometime around February 15, prosecutor Rimmer informed defense counsel that Byrd had been located in the Florida prison system and was going to be transported to Sowers' trial; that the defense had not had any opportunity to talk to or depose Byrd and could not adequately prepare for trial in the time remaining if Byrd was allowed to testify; and that the State's failure to list Byrd as a witness, in July 1998, constitutes a discovery violation. The defense sought the exclusion of Byrd's testimony as evidence.

In a second motion in limine, the defense alleged that on February 3, 1999, defense counsel had received amended discovery listing Richard Kelley as a State witness; that on February 23, defense counsel had questioned Kelley at deposition but that Kelley refused to answer questions regarding his knowledge of Sowers; and that Kelley had stated that he would not answer questions outside the presence of his attorney and without a deal from the Office of the State Attorney relating to Kelley's own case. The movant sought to prohibit the State from submitting Kelley's testimony as evidence.

The trial court granted, in part, the motion in limine as to Kelley, on the condition that Kelley's testimony would not be allowed without the opportunity for the defense to depose Kelley and without a further Richardson hearing. The State sought a similar limiting ruling on the motion in limine as to Byrd.

In argument of counsel relating to the Byrd motion in limine, it was established that the attorney who initially had handled the case and who regularly had provided amended discovery, left the Office of the State Attorney, whereupon the case was reassigned to Rimmer. Rimmer indicated that on February 2, 1999, he discovered that neither Byrd nor Kelley had been listed in any of the discovery responses provided by the former prosecutor. About a month before trial, Rimmer filed the amended discovery document listing the two men's names. As the State claimed not to know Byrd's whereabouts at that time, Byrd's address was listed in care of his lawyer in Milton. Rimmer disclosed that the State had known that Byrd was in jail at one point, but that he had gotten out and could not be located. The mystery of Byrd's whereabouts was solved fortuitously when the State got the return of service on the subpoena that had issued for Byrd, whose wife revealed that he was in Lake Butler. This led the State to Byrd in the Florida prison system. The prosecution indicated that Byrd was scheduled to be transported to the local jail for deposition on March 5, 1999. At the motion hearing, the grand jury testimony was ordered but was not yet available. While admitting that the discovery disclosure was late, the State denied deliberately violating or intending to frustrate the rules of procedure.

The defense argued that the State's belated disclosure of Byrd's name and address prejudiced Sowers' ability to prepare an adequate defense because the defense had lost the opportunity to conduct both a contemporaneous investigation and a timely cross-examination during the period when Byrd was providing information about Sowers' alleged remarks. The defense asserted that Byrd had testified at the July 1998 grand jury proceeding, so that the State had his name and statement when the indictment for first-degree murder came back. Defense counsel contended that the discovery violation was serious and damaging because it related to the critical issue of premeditation. The defense asserted also that allowing a Friday deposition before the following Monday's jury selection could not remedy the prejudice.

The prosecutor opined that the defense was not prejudiced by the State's omission, in that the early February 1999 discovery exhibit had apprised Sowers of the essence of Byrd's statement, yet defense counsel failed to act immediately on this information. The State suggested that if, indeed, the belated disclosure of Byrd's name and address constituted a discovery violation, then the appropriate remedy was a continuance. Opposing any ruling excluding the witness, Rimmer asked the court to allow depositions and to permit the grand jury testimony to be transcribed before making a ruling.

In its written order, the trial court included findings based on the allegations in the motion in limine and on the above-noted argument of counsel. It granted the motion as to Byrd, thereby precluding the introduction of his testimony. Included in the order are findings that the State's failure to make a timely disclosure of Byrd's name and address constitutes a willful discovery violation of a substantial fact, resulting in prejudice to the defense. The State argues on appeal that the lower court erred in reaching this conclusion and in imposing the harsh sanction of witness exclusion without considering any of several available less severe remedies. The challenged order granting a pretrial motion in limine is a nonfinal order. See State v. Polak, 598 So.2d 150 (Fla. 1st DCA 1992)

; State v. Kleinfeld, 587 So.2d 592 (Fla. 4th DCA 1991). As a threshold matter, given the nature of the evidence adduced at the motion hearing, we find nothing in the law of Florida authorizing the State to seek direct appellate review of the nonfinal pretrial order granting the defense's motion in limine. Article V, section 4(b)(1), of the Florida Constitution, states that the district courts of appeal shall hear appeals from nonfinal orders "to the extent provided by rules adopted by the supreme court." See State v. Pettis, 520 So.2d 250, 252 (Fla. 1988)("The review of nonfinal orders is controlled by court rule."). Although this state constitutional provision invests the supreme court with exclusive authority to determine the class of nonfinal orders that will be subject to appeal to the district courts of appeal, it does not create any constitutional right to appeal a nonfinal order. See R.J.B. v. State, 408 So.2d 1048 (Fla.1982); Padovano, P., Florida Appellate Practice § 4.4 (2nd ed.1997). Thus, for the challenged...