County Criminal Court: CRIMINAL LAW – Evidence – Discovery – The trial court did not abuse its discretion in conducting a Richardson inquiry following the State’s admitted discovery violation. Affirmed.  Harmon v. State, No. CRC0905525CFAWS, (Fla. 6th Cir.App.Ct. July 22, 2010).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

PAUL ORLANDO HARMON, JR.,     

                        Appellant,

                                                                        UCN:              51-2009-CF-001450-A000-ES

v.                                                                     Case No:       CRC-09-05525-CFAWS

                                                                        Lower No:    CTC09-02030-MMAWS-16

                                                                                               

STATE OF FLORIDA,                                           

                        Appellee.                                                      

_____________________________/

Appeal from Pasco County Court

County Judge Marc Salton

 

Kimberly Nolen Hopkins, Esq. 

for Appellant

 

Office of the State Attorney

for Appellee

 

 

 

 

 

ORDER AND OPINION

 

            Appellant challenges whether the trial court reversibly erred by failing to conduct an adequate Richardson inquiry following the State’s admitted discovery violation.  We find that the trial court’s inquiry was sufficient.  This Court affirms the trial court as set forth below.

 

 

FACTUAL BACKGROUND

On March 12, 2009, the victim, Bonnie Olson, got in an argument with Appellant.  They verbally argued until Appellant hit her in the chest.  Ms. Olsen immediately left and called 911.  Deputy Corbino responded to Appellant’s house.  Appellant claimed to not have remembered any of the incident due to his high blood sugar levels.  Appellant was charged with one count of misdemeanor battery.  Following the jury trial, Appellant was found guilty as charged and sentenced to one year of probation.     

On the day of trial, the State admitted inadvertently failing to provide the defense with a copy of the 911 call made by Bonnie Wilson.  The trial court inquired about the 911 call’s contents, and the tape was played.  In the 911 call, the victim stated that the police had been called out a couple days prior; Appellant pushed her and threatened to kill her three times; she was disabled; and she left because she did not feel safe. 

Since the State had admitted this discovery violation, the trial court began a Richardson inquiry.  When the trial court asked how defense counsel was prejudiced, defense counsel stated that she had not yet had an opportunity to discuss the tape with her client or how to rebut it.  The trial court responded that it did not see how the addition of the 911 tape would affect the defense, as the victim was going to testify to the same things that were said on the tape.  The trial court did not see the difference between what was said on the tape and what was already in the police report.  Any differences could benefit defense counsel for impeachment purposes.  In addition, the comments about the police being called out were irrelevant and would be excluded.  The trial court determined that the only statements that could be included were that Appellant pushed and threatened her and that she was disabled because of their relevancy.  The trial court found that there was no prejudice, even though it was a discovery violation.   

 

LAW AND ANALYSIS

            The purpose of a Richardson inquiry is to determine whether (1) the State’s violation was willful or inadvertent; (2) the violation was trivial or substantial; and (3) the violation affected the defendant’s ability to prepare for trial.  State v. Evans, 770 So. 2d 1174 (Fla. 2000).  Only after considering these factors can the court consider appropriate sanctions.  A trial court's decision on a Richardson hearing is subject to reversal only upon a showing of abuse of discretion.  Conde v. State, 860 So. 2d 930, 958 (Fla. 2003).    

On the morning of trial, it was discovered that the State had a 911 recording of the victim that was not sent to Appellant.  The Assistant State Attorney stated that he looked for the receipt that would show those items were sent to Appellant, but could not find one.  The State’s violation was inadvertent, as the Assistant State Attorney had thought that the items were already sent.  It was unnecessary for the trial court to further inquire as to whether the violation was willful or inadvertent when it was already made apparent that the violation was simply an oversight.

The trial court was required to determine whether the violation was trivial or substantial.  To make this determination, the trial court played the 911 call to ascertain its content.  Most of the call was excluded, as it referred to an unrelated incident the day before the charged crime.  The remaining portions were cumulative to what the witnesses would testify and what was already in the police report.  Since a majority of the evidence was ultimately excluded on other grounds, and the remaining portions cumulative, the trial court did not abuse its discretion in determining that the violation was not substantial.

Finally, the trial court inquired whether the violation affected the defendant’s ability to prepare for trial.  The trial court asked defense counsel several times how not having the undisclosed evidence would affect her trial preparation.  Defense counsel responded that she did not have enough opportunity to prepare for trial with the 911 call in mind.  Defense counsel specified that she would have wanted the majority of the call redacted or do a motion in limine to exclude it.  After the 911 call was played, the trial court found that the recording added no new information and much of the call would be excluded.  Therefore, the trial court did not abuse its discretion in determining that defense counsel’s trial preparation was not affected by the undisclosed evidence.  We find that the trial court applied the proper test for a Richardson hearing.   

Even if this Court were to find that the Richardson inquiry was inadequate, an appellate court can still determine that a discovery violation is harmless beyond a reasonable doubt.  Scipio v. State, 928 So. 2d 1138 (Fla. 2006).  In determining whether a Richardson violation is harmless, an appellate court must consider whether there is a reasonable possibility that the discovery violation procedurally prejudiced the defense in that the defendant's trial preparation or strategy would have been materially different had the violation not occurred.  Id.  A trial preparation or strategy is materially different if it reasonably could have benefited the defendant.  Only if an appellate court can say beyond a reasonable doubt that the defense was not procedurally prejudiced by the discovery violation can the error be considered harmless.  Id.  In this case, we cannot say that the defense was procedurally prejudiced.  The discovery violation was harmless.  State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986).  Therefore, it is

 

ORDERED AND ADJUDGED that the decision of the trial court is AFFIRMED.

 

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 22nd day of July 2010.

 

Original order entered on July 22, 2010 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.