Wilkerson v. State, AU-447

• Decision Date: 16 January 1985
• Docket Number: No. AU-447,AU-447
• Citation: 10 Fla. L. Weekly 215,461 So.2d 1376
• Parties: 10 Fla. L. Weekly 215 Michael Clifford WILKERSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1376

461 So.2d 1376

10 Fla. L. Weekly 215

Michael Clifford WILKERSON, Appellant, v. STATE of Florida, Appellee.

No. AU-447.

District Court of Appeal of Florida First District.

Jan. 16, 1985.

Terry P. Lewis, Sp. Asst. Public Defender, Tallahassee, for appellant.

David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.

SMITH, Judge.

Wilkerson appeals his convictions for burglary while armed and grand theft of a firearm, as charged, urging that the trial court abused its discretion in excluding the testimony of two of his defense witnesses whose names had been tardily supplied to the state after docket sounding. We agree and reverse.

A gun was stolen from the home of John Bradley on February 7, 1983, between the hours of 4:00 P.M. and 8:00 P.M. Later that evening, appellant sold a gun to Daryl Mathis for $100. Mathis became concerned that the gun might be stolen property and called the sheriff's office. The gun was identified as the one stolen from Bradley's home.

The dates on which certain pretrial events occurred are significant. Appellant moved for discovery, the state responded on April 29, 1983, and on the same date, the state made a reciprocal demand for discovery. Appellant did not provide the state with a reciprocal witness list within seven days after receipt of the state's witness list as is required by Rule 3.220(b)(3), Florida Rules of Criminal Procedure. The docket was sounded on June 13, 1983, and trial was set for June 30, 1983. Appellant's counsel served his witness list containing the names and addresses of the excluded witnesses, on June 16, 1983, and filed the list with the clerk on June 17, 1983, nearly two weeks before the scheduled trial date.

On June 16, 1983, defense counsel interviewed appellant's brother and sister-in-law, David and Cindy Wilkerson. The state had been notified that David and Cindy would be present in defense counsel's office and available for interrogation or deposition on June 16. The state took no action pursuant to this notification. On June 17, 1983, appellant filed his reciprocal response to discovery listing David and Cindy as defense witnesses, as well as John Sheppard. However, in a telephone conversation, on or about June 16 or 17, defense counsel told the assistant state attorney that he "probably" would not be calling David and Cindy to testify at the trial. On June 21, 1983, appellant filed a supplemental response to discovery listing Andy Wilkerson, another brother, as a defense witness.

Appellant's defense was that he had gotten the gun from John Sheppard and that he sold it to Mathis for Sheppard. After the state rested, defense counsel indicated his intention to call David and Cindy Wilkerson as witnesses. The assistant state attorney objected on the grounds that he had been told that these witnesses would not be called and therefore he had not deposed them. Defense counsel responded that he had listed the two as witnesses in his reciprocal response to discovery and that he had made them available to the state for deposition. He admitted that he had told the assistant state attorney that he "probably" would not call them, but stated he changed his mind the morning of the trial when he determined David would be a partial alibi witness since he had worked with appellant all day on February 7, and was with appellant until about 6:00 or 6:30 P.M. that evening. ¹ Moreover, defense counsel also proffered testimony from the two that appellant was at home with them on the evening of February 7, when John Sheppard came to the house and asked appellant if appellant knew where he could get rid of a gun, after which appellant and Sheppard left the house. The court refused to permit David and Cindy's testimony because appellant's reciprocal response to discovery, filed after docket sounding, was untimely and on the further ground that the testimony was irrelevant.

Andy Wilkerson was permitted to testify. He stated that he was at his girl friend's house at approximately 7:00 or 8:00 P.M. the evening of February 7, 1983, when appellant and Shepard came by. Sheppard inquired if Andy knew where he could get rid of a gun. Andy told Sheppard "no," and Sheppard then asked Andy to drive him and appellant to Daryl Mathis' house. When they got there, appellant sold the gun to Mathis.

On rebuttal, the state called Sheppard as a witness over defense counsel's objection that Sheppard had not been listed on the state's response to discovery. After an inquiry, the trial court permitted Sheppard to testify, ruling that since Sheppard had been listed as a defense witness there was no surprise to the defense, and therefore prejudice had not been shown. Sheppard testified that he knew the appellant, but he denied approaching appellant on February 7 concerning the sale of a gun. The jury returned a verdict finding appellant guilty as charged.

Initially, appellant complains that the trial court failed to conduct an adequate "Richardson " inquiry into the reasons for his untimely response to the state's demand for discovery and the resulting prejudice to the state or lack thereof. Richardson v. State, 246 So.2d 771 (Fla.1971). However, our examination of the record reveals that the trial court did conduct an inquiry into whether the failure to comply with Rule 3.220(b)(4) was willful, negligent or inadvertent; whether the violation was trivial or substantial; and whether there was prejudice to the state as a result of the violation. The court's failure to call the inquiry a "Richardson " hearing or to make formal findings concerning each of the pertinent Richardson considerations does not constitute reversible error. Baker v. State, 438 So.2d 905 (Fla. 2d DCA 1983); and Ansley v. State, 302 So.2d 797 (Fla. 1st DCA 1974).

Next, we address the question of whether the trial court abused its discretion in imposing the extreme sanction of exclusion of David and Andy's testimony on the grounds that the State was prejudiced by appellant's response to discovery after docket sounding.

We recognize that a ruling on whether a discovery violation calls for the exclusion of testimony is discretionary, and should not be disturbed on appeal unless an abuse is clearly shown. Mobley v. State, 327 So.2d 900 (Fla. 3d DCA 1976). However, it is also true that exclusion is an extreme remedy which should be invoked only under the most compelling circumstances. Williams v....