Washington v. State
Decision Date | 24 November 2014 |
Docket Number | No. 1D13–5585.,1D13–5585. |
Citation | 151 So.3d 544 |
Parties | David Ledonte WASHINGTON, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender, Tallahassee, and Kevin Steiger, Assistant Public Defender, Apalachicola, for Appellant.
Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
David Ledonte Washington appeals convictions (and concurrent sentences of fifty-two-and-one-half months) for failure to report a change in address as required by the sexual offender registration statute, section 943.0435, Florida Statutes (2012). He argues the trial court erred in ruling there had been no discovery violation even though the state failed to alert the defense that a key witness planned to testify differently than she had testified on deposition as to an allegation central to the prosecution. We reverse and remand for a new trial.
Before she was deposed, the witness in question, Alicia Pitts, told a deputy sheriff that Mr. Washington had never lived at her residence. This oral statement was recorded; and contemporaneously she signed a written statement to the same effect. Later, when put under oath at deposition, however, she testified that she had lied when she told the officer that Mr. Washington did not reside at her address. She testified on deposition that, even when she gave the original oral and written statements, Mr. Washington was in fact living at her home, although she had not seen him for a couple of days.
At trial thereafter, when the prosecutor told the jury in opening statement that Ms. Pitts would testify that she had given Mr. Washington permission to live with her, but that he never did so, defense counsel objected, argued she was surprised, and asked for a Richardson hearing. See Richardson v. State, 246 So.2d 771 (Fla.1971). The prosecutor responded that Ms. Pitts had When defense counsel contended that the prosecutor had an obligation to inform her as soon as practicable of Ms. Pitts' oral statement the morning of the trial, the prosecutor argued the failure to disclose the oral statement reverting to her original story was not a discovery violation. Agreeing, the trial judge denied a Richardson hearing on grounds the information was not “new [or] unknown.”
Pursuant to Florida Rule of Criminal Procedure 3.220(b)(1), when, as happened in the present case, a defendant elects reciprocal discovery, the prosecutor is under an obligation1 to disclose to the defendant “a list of the names and addresses of all persons known to the prosecutor to have information that may be relevant to any offense charged or any defense thereto” and “the statement of any person whose name is furnished.”
Fla. R. Crim. P. 3.220(b)(1)(A)-(B). The obligation to disclose is a continuing duty. See Fla. R. Crim. P. 3.220(j) ().
On the authority of Smith v. State, 7 So.3d 473 (Fla.2009), we hold Ms. Pitts' statement to the prosecutor the morning of the trial should have been promptly disclosed to the defense, even though it was neither written nor recorded, nor summarized in any writing or recording. The failure to disclose it necessitated a Richardson hearing, which the trial court declined to conduct.2 The failure to conduct a Richardson hearing was error, which was not harmless3 under the rule laid down in State v. Schopp, 653 So.2d 1016, 1021 (Fla.1995) (). See Cox v. State, 819 So.2d 705, 712 (Fla.2002) () (citation omitted).
As written, the discovery rule defines a statement as “a written statement made by the person and signed or otherwise adopted or approved by the person and also includes any statement of any kind or manner made by the person and written or recorded or summarized in any writing or recording.” Fla. R. Crim. P. 3.220(b)(1)(B). Cf. Fla. R. Crim. P. 3.220(b)(1)(C) ( )(emphasis added). Our supreme court has expanded the definition of statement4 for purposes of Rule 3.220(b)(1)(B) to include certain unrecorded oral statements, originally only those made “in circumstances where the oral statement materially alters a prior written or recorded statement previously provided by the State to the defendant.” State v. Evans, 770 So.2d 1174, 1180 (Fla.2000).
At issue here is an oral statement made to the prosecutor the day of trial at material variance with the witness's pretrial deposition, but consistent with the antecedent statements to the deputy. Appellant relies on Scipio v. State, 928 So.2d 1138 (Fla.2006), where an investigator for a medical examiner's office testified on deposition that a photograph depicted a semi-automatic pistol under the victim's body. There, when defense counsel met with the investigator on the morning of trial and asked him to review his deposition testimony, the investigator reaffirmed his deposition testimony. When later the same day (but before trial) the investigator went with the prosecutor to the state attorney's office to review the photograph, the prosecutor refused defense counsel's request to accompany them.
At the state attorney's office, the investigator told the prosecutor he had mistaken a pager for a pistol; at trial, the defense was “completely surprised” by the investigator's testimony that the photograph depicted a pager, not a pistol. Id. at 1145–46. The Florida Supreme Court determined “the State's discovery violation was a flagrant case of ‘dirty pool’ that [was] ‘exactly the type of conduct the discovery rules were designed to prevent.’ ” Id. at 1141 (quoting Scipio v. State, 867 So.2d 427, 430 (Fla. 5th DCA 2004) ). Even though the investigator's original statement was given on deposition (rather than being produced or in any way vouched for by the state), the supreme court ruled failure to disclose the later unrecorded, unwritten statement before trial, was a discovery violation. The court said that, because the investigator “actually gave a statement by deposition that he possessed relevant information of the crime scene, the State also had an obligation to disclose any material change in that statement.” Id. at 1142.
The present case is arguably distinguishable from Scipio because the witness in Scipio was not a private citizen, but an investigator for a government agency. Although the witness in Scipio made the original statement on deposition (and the state had furnished the defense no written or recorded statement previously in its exclusive possession, as part of discovery), the investigator did work for the government and become a witness in that capacity. By contrast, in the present case, Ms. Pitts was a private citizen. In no sense can the state be said to have vouched for her testimony on deposition.5 To the contrary, the state had previously furnished the defense statements she had made that were at odds with the testimony she gave on deposition.
Whether or not Scipio is controlling, however, the supreme court's more recent decision in Smith dictates today's result.6 There, as in the present case, a state witness first gave the authorities statements incriminating the accused, which the prosecution produced for the defense, but later testified on deposition that his original statements were false; and at trial repudiated his deposition testimony by reverting to his initial version of events. See Smith, 7 So.3d at 505. Our supreme court flatly rejected the state's argument that no discovery violation occurred because earlier, incriminating statements Mr. Walker had made had been disclosed to the defense. The Smith court ruled that, where Id. at 506. The state committed the same kind of violation in the present case.
Reversed and remanded.
1 Whether or not the defendant invokes reciprocal discovery, the prosecutor must disclose to the defendant “any material information within the state...
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