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.