Opinion
6D23-24
09-01-2023
James Richard Young, Appellant, v. State of Florida, Appellee.
Howard L. Rex Dimmig, II, Public Defender, and Anthony W. Surber, Special Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Natalia Reyna-Pimiento, Assistant Attorney General, Tampa, for Appellee.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF TIMELY FILED
Appeal from the Circuit Court for Lee County Lower Tribunal No. 18-CF-018973 . Robert J. Branning, Judge.
Howard L. "Rex" Dimmig, II, Public Defender, and Anthony W. Surber, Special Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Natalia Reyna-Pimiento, Assistant Attorney General, Tampa, for Appellee.
MIZE, J.
Appellant, James Richard Young ("Young"), appeals his conviction for trafficking in illegal drugs (28 grams or more), a violation of section 893.135(1)(c), Florida Statutes (2022). Young asserts that the trial court erred by: (1) denying his motion to suppress evidence; (2) failing to conduct a Richardson hearing upon learning that the State committed a discovery violation when it failed to disclose an incriminating statement that Young made to a law enforcement officer; and (3) denying Young's motion for mistrial based on the officer testifying to that same statement. We find no error in the trial court's denial of the motion to suppress and affirm that ruling without discussion. However, we agree with Young that the trial court erred by failing to conduct a Richardson hearing upon learning of the discovery violation by the State. We do not find this error to be harmless. Accordingly, we reverse Young's conviction and remand this case to the trial court to conduct a new trial. Because we grant Young a new trial based on the trial court's failure to conduct a Richardson hearing, we need not decide whether the trial court erred by denying Young's motion for mistrial.
This case was transferred from the Second District Court of Appeal to this Court on January 1, 2023.
Background and Procedural History
On October 21, 2018, Young and his girlfriend, Tiffany Pierce ("Pierce"), were asleep in their home when they were awakened by a loud noise outside. They looked out the window and saw two armed males, and so Pierce called 911 to ask for help. Lee County Sheriff's Deputy Roberto Torres ("Torres") responded to the call and arrived at the couple's home. After surveying the area and finding no men with firearms, Torres called out for Young and Pierce. Young went outside to meet Torres while Pierce initially remained in the home. When Torres called for Pierce to come outside also, she came out and shut the door behind her. The deputies on scene separated Young and Pierce from each other and questioned them individually.
The events that happened next are disputed. The testimony of Young and Pierce contradicted the testimony of Torres, but the dispute is not material to our resolution of this case. Torres testified that he asked Pierce for consent to enter the home and that she verbally granted him consent. Pierce testified that she did not grant Torres consent to enter the home, but merely responded to his question of whether anyone else was in the house by telling him that there was no one else in the house. At any rate, after this conversation between Torres and Pierce, deputies entered the house and remained inside for several minutes. Torres testified at trial that their purpose in entering the house was to perform a safety sweep.
Inside the house, Torres observed a shotgun and baggies of a substance that he believed to be heroin. Based on this discovery, Young and Pierce were detained, and Detective James McDaniel ("McDaniel") was called to the scene to continue the investigation. After Young waived his Miranda rights, McDaniel conducted three interviews with him, two of which were recorded and one that was not. At the hearing on Young's motion to suppress, McDaniel testified that prior to McDaniel's first recorded interview with Young, Young attempted to talk to McDaniel about "helping himself," which McDaniel took to mean that Young wanted to be an informant. In the first recorded interview, Young told McDaniel that the other officers went into the house without asking and that there should not be any drugs in the house. After McDaniel asked about an odor of marijuana, Young said that the reason there was an odor of marijuana was because he had a medical marijuana card. Smokable medical marijuana was not legally available in Florida at that time.
McDaniel applied for and received a search warrant of the house. Either while McDaniel was typing the warrant request or after he finished the request, Young asked to speak to him without the conversation being recorded. McDaniel agreed and Young then told him that he would find narcotics and firearms in the house. Upon executing the search warrant, McDaniel indeed found narcotics and firearms in the house.
After conducting the search of the house, McDaniel conducted another recorded interview with Young. In that interview, Young admitted that the items found in the house were his, confirmed their locations, confirmed the containers in which the items were found, and explained to McDaniel what some of the items were.
At the hearing on the motion to suppress at which McDaniel testified that Young expressed a desire to be an informant, Young was represented by a public defender. At his trial, Young was represented by a private attorney that had not been present at the hearing on the motion to suppress. The Assistant State Attorneys that conducted the trial were also different than the Assistant State Attorneys that conducted the hearing on the motion to suppress.
At the trial, McDaniel repeated his testimony from the hearing on the motion to suppress that Young stated while he was detained that he wanted to speak to McDaniel without being recorded "about helping himself out in the future and possibly becoming an informant." Young's trial counsel immediately objected, stating that Young's offer to be an informant was not in the discovery that the State provided to defense counsel. Young's counsel argued that the comment was highly prejudicial because it indicated consciousness of guilt. The Assistant State Attorney responded that he had not previously heard the statement and agreed that the statement indicated consciousness of guilt. Young's counsel requested that the trial court give a curative instruction to the jury to the effect that McDaniel's statement was not true, or that the trial court grant a mistrial.
The trial judge ruled that Young's counsel could cross-examine McDaniel regarding the comment and agreed to give a curative instruction, but not the curative instruction that Young's counsel requested. The trial court gave the following curative instruction: "Ladies and gentlemen of the jury, you will rely on your own common sense and observations of the witness's testimony, as well as the ability of the -- both direct questions and cross-examination questions to highlight what may be accuracy or inaccuracy in any witness's statement." Neither party requested a Richardson hearing and the trial judge did not perform a Richardson hearing.
Moments later, Young's counsel asked to address the comment again and again requested a mistrial. The State argued that the comment did not "rise to the level of prejudice that would require a mistrial" and suggested that the defense could cross-examine McDaniel to find out why McDaniel did not disclose the statement before testifying at trial or that McDaniel could proffer his testimony out of hearing of the jury. The trial court denied the motion for mistrial. Again, neither party requested a Richardson hearing and the trial judge did not perform a Richardson hearing.
Young's counsel did not address the comment during his cross-examination of McDaniel. After the State rested its case, the State raised the issue of McDaniel's comment and requested that the trial court make certain findings regarding "the Richardson issue." The State stated in pertinent part:
I don't know if we directly addressed that particular statement as far as the Richardson issue was concerned. I just wanted to ask if the Court wanted to make a record as to its findings, whether it was inadvertent or vocal on the part of the prosecutor, and whether it was trivial, substantial, as far as prejudicing the Defendant.
The parties agreed that the discovery violation was not intentional. The Court then further found:
I do think it was a comment that was unexpected by both parties. I do not think it was made a feature, and I do not think it was any cause for concern. It was not made any kind of special significance in front of the jury that we require any further action.
Prior to the trial judge submitting the case to the jury, Young's counsel renewed Young's motion for a mistrial based on McDaniel's comment. The trial court denied the motion. The jury returned a guilty verdict, and this appeal followed.
Richardson Hearings
Anytime a trial court is alerted during a criminal trial to a possible discovery violation by the State, the trial court is required to conduct a Richardson hearing. The trial court need not be certain that a discovery violation occurred for a Richardson hearing to be required. Rather, if the trial court is informed of the possibility of a discovery violation, the trial court must conduct a Richardson hearing. Thomas v. State, 63 So.3d 55, 59 (Fla. 4th DCA 2011) ("A Richardson hearing is required when there is a possible discovery violation in order to flesh out whether there has indeed been a discovery violation." (quoting Landry v. State, 931 So.2d 1063, 1065 (Fla. 4th DCA 2006)) (emphasis in original)); see also Evans v. State, 721 So.2d 1208, 1209 (Fla. 3d DCA 1998), approved, 770 So.2d 1174 (Fla. 2000) ("It has long been the law in this State that upon learning of a potential discovery violation the trial court has an obligation to conduct a Richardson hearing." (emphasis added)); Charles v. State, 903 So.2d 314, 316 (Fla. 2d DCA 2005) (stating that a trial court must conduct a Richardson hearing "[w]hen a trial court is alerted to a possible discovery violation." (emphasis added)); Tarrant v. State, 668 So.2d 223, 225 (Fla. 4th DCA 1996) (stating that a trial court must conduct a Richardson hearing "[w]here it has been alleged that the state has committed a discovery violation" (emphasis added)).
"Moreover, the trial court's obligation is affirmative and a hearing must be conducted even where the defendant does not specifically request a hearing or mention Richardson." Evans, 721 So.2d at 1209 (citing Brown v. State, 640 So.2d 106 (Fla. 4th DCA 1994)). "There are no exact 'magic words' or phrases which must be used by the defense in order to necessitate the inquiry; only the fact that a discovery request has not been met." Smith v. State, 7 So.3d 473, 506 (Fla. 2009); see also Thomas, 63 So.3d at 58. A motion for mistrial adequately preserves a defendant's discovery violation claim and the trial court's failure to conduct a Richardson hearing about the alleged discovery violation, provided that "the motion reasonably informs the court of the nature of the complaint." Smith, 7 So.3d at 506; see also Jackson v. State, 227 So.3d 701, 703 (Fla. 5th DCA 2017) ("While [defense] counsel did not specifically request such a [Richardson] hearing, the contemporaneous objection and motion for mistrial were sufficient to apprise the trial court of the necessity of conducting such an inquiry.").
In conducting a Richardson hearing, the trial court must determine: (1) whether the state's violation was inadvertent or willful; (2) whether the violation was trivial or substantial; and (3) what effect, if any, did the violation have upon the ability of the defendant to properly prepare for trial. Duest v. State, 12 So.3d 734, 742-43 (Fla. 2009). A trial court does not conduct an adequate Richardson hearing if the trial court does not inquire into all three of these factors. See Thomas, 63 So.3d at 60 (citing Barrett v. State, 649 So.2d 219, 222 (Fla. 1994)); Sackett v. State, 764 So.2d 719, 722 (Fla. 2d DCA 2000) (citing State v. Hall, 509 So.2d 1093, 1096 (Fla. 1987)).
The third factor of a Richardson hearing is the most important. See Duest, 12 So.3d at 742-43; Tarrant, 668 So.2d at 225; Muniz v. State, 988 So.2d 1194, 1197 (Fla. 2d DCA 2008). This is because "[t]he purpose of a Richardson inquiry is to ferret out procedural, rather than substantive, prejudice." Tarrant, 668 So.2d at 225 (quoting Wilcox v. State, 367 So.2d 1020, 1022 (Fla. 1979), receded from on other grounds, State v. Schopp, 653 So.2d 1016 (Fla. 1995)). "The defense is procedurally prejudiced if there is a reasonable possibility that the defendant's trial preparation or strategy would have been materially different had the violation not occurred. Trial preparation or strategy should be considered materially different if it reasonably could have benefited the defendant." Thomas, 63 So.3d at 59 (quoting Schopp, 653 So.2d at 1020); see also Sackett, 764 So.2d at 722. During the Richardson hearing, the burden is on the State to demonstrate the lack of prejudice to the defendant. Thomas, 63 So.3d at 59.
After inquiring into the three Richardson factors, a trial court has discretion to determine whether a discovery violation was trivial or substantial. Curry v. State, 1 So.3d 394, 398 (Fla. 1st DCA 2009). A trial court likewise has discretion in assessing whether a discovery violation resulted in prejudice to the defendant. Barrett, 649 So.2d at 222; Curry, 1 So.3d at 398; Thomas, 63 So.3d at 59. However, the trial court's discretion to assess these factors can only be exercised after the court has made an adequate inquiry into all three factors. Barrett, 649 So.2d at 222; Curry, 1 So.3d at 398; Thomas, 63 So.3d at 59. The requirement to conduct a Richardson hearing and inquire into all three factors is mandatory, not discretionary. Barrett, 649 So.2d at 222; Thomas, 63 So.3d at 59; Curry, 1 So.3d at 398 ("We do not read these opinions to suggest that a trial judge has discretion to deny a request for a Richardson hearing. The very point of the procedure is to require the hearing .....[W]hen a discovery violation is brought to the trial judge's attention, the trial court's discretion can be properly exercised only after the court has made an adequate inquiry into all of the surrounding circumstances."); Evans, 721 So.2d at 1209 ("It has long been the law in this State that upon learning of a potential discovery violation the trial court has an obligation to conduct a Richardson hearing.").
Where a trial court failed to conduct an adequate Richardson hearing, "the appellate court must apply a special harmless error test." Charles, 903 So.2d at 317. The Florida Supreme Court has stated that the harmless error standard for purposes of evaluating a trial court's failure to conduct a Richardson hearing "does not focus on the discovery violation's effect on the verdict." Muniz, 988 So.2d at 1197 (citing Scipio v. State, 928 So.2d 1138, 1149 (Fla. 2006)); see also Sackett, 764 So.2d at 722 ("[T]he question of 'prejudice' in a discovery context is not dependent upon the potential impact of the undisclosed evidence on the fact finder but rather upon its impact on the defendant's ability to prepare for trial." (quoting Smith, 500 So.2d at 126)).
[T]he appellate court must consider whether there is a reasonable possibility that the discovery violation procedurally prejudiced the defense. As used in this context, the defense is procedurally prejudiced if there is a reasonable possibility that the defendant's trial preparation or strategy would have been materially different had the violation not occurred. Trial preparation or strategy should be considered materially different if it reasonably could have benefited the defendant. In making this determination[,] every conceivable course of action must be considered. If the reviewing court finds that there is a reasonable possibility that the discovery violation prejudiced the defense or if the record is insufficient to determine that the defense was not materially affected, the error must be considered harmful. In other words, only if the 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.Schopp, 653 So.2d at 1020-21; see also Powell, 912 So.2d at 701.
The State has the burden to show that the error was harmless. Schopp, 653 So.2d at 1020; Powell, 912 So.2d at 701; Muniz, 988 So.2d at 1197. "When the State commits a discovery violation, the standard for deeming the violation harmless is extraordinarily high." Muniz, 988 So.2d at 1197 (quoting Scipio, 928 So.2d at 1149 (internal quotations omitted)). The Florida Supreme Court has recognized that "the vast majority of cases will not have a record sufficient to support a finding of harmless error and that there is a high probability that any given error will be found harmful." Scipio, 928 So.2d at 1148 (quoting Schopp, 653 So.2d at 1020 (internal quotations omitted)). "[A] finding of harmless error should be the exception rather than the rule." Id.
The Instant Case
The record makes clear that the State committed a discovery violation in the proceedings below. The failure of the State to disclose in discovery oral statements made by a defendant is a discovery violation. See Fla. R. Crim. P. 3.220(b)(1)(C); see also Powell, 912 So.2d at 701; Sackett, 764 So.2d at 722 ("Florida Rule of Criminal Procedure 3.220(b)(1)(C) requires the State to disclose to the defense, inter alia, the substance of any oral statements made by the defendant."); Landry, 931 So.2d at 1064-65 ("[W]here the State fails to disclose to the defendant, prior to trial, the substance of any oral statement allegedly made by the defendant, then the State has committed a discovery violation and the trial court must conduct a Richardson hearing upon learning of the possible violation.") (quoting Irish v. State, 889 So.2d 979, 981 (Fla. 4th DCA 2004)).
Additionally, "[i]t is well-settled that the state is charged with constructive knowledge and possession of evidence withheld by state agents, including law enforcement officers." Tarrant, 668 So.2d at 225 (citing Gorham v. State, 597 So.2d 782 (Fla. 1992)); see also Curry, 1 So.3d at 399. Thus, the State was charged with constructive knowledge of McDaniel's knowledge concerning Young's offer to be an informant and was required to disclose this statement to Young's counsel as part of the State's discovery obligations.
Additionally, the fact that McDaniel previously testified to Young's statement at the hearing on the motion to suppress does not negate the discovery violation. "The fact that the existence of the statement was previously revealed to the defendant does not mean that the state complied with the discovery rules." D.R. v. State, 588 So.2d 327, 328 (Fla. 4th DCA 1991). Pursuant to Rule 3.220(b)(1)(C) of the Florida Rules of Criminal Procedure, the State had an affirmative duty to disclose to defense counsel in writing the substance of any oral statements made by the defendant, including a copy of any statements contained in police reports or report summaries, together with the name and address of the witness to each statement. The State was required to permit defense counsel to inspect, copy, and photograph all such information. Fla. R. Crim. P. 3.220. "This the state failed to do. Whether the existence of the statement was later revealed at the [suppression] hearing does not alter the Richardson inquiry requirements when a discovery violation has been alleged." D.R., 588 So.2d at 328.
As detailed above, at no time after learning of the State's discovery violation did the trial court conduct a proper Richardson hearing. While the parties agreed that the discovery violation was not willful, the trial court made no inquiry into or findings regarding the second two factors required to be assessed as part of a Richardson hearing. Specifically, while the trial court found that McDaniel's statement was not "made a feature" or "any kind of special significance in front of the jury," the trial court made no inquiry into whether the discovery violation itself was trivial or substantial. Most importantly, the trial court made no inquiry into whether the violation caused procedural prejudice to Young, i.e., whether Young's trial preparation or strategy would have been materially different had the violation not occurred.
Because the trial court erred by failing to conduct a Richardson hearing, we must determine whether this error was harmless under the standard set forth above. The burden is on the State to show that the error was harmless and the standard for deeming the violation harmless is extraordinarily high.
In its Answer Brief, to meet its burden, the State first relies on the fact that McDaniel testified to Young's offer to be an informant at the hearing on the motion to suppress. The State argues that despite McDaniel testifying to Young's statement at the suppression hearing, Young's counsel did not file a motion in limine to attempt to exclude the statement. Therefore, the State argues, Young's counsel chose not to take action regarding the statement despite knowing about it. However, as noted above, the fact that McDaniel testified to the statement at an earlier hearing does not negate the discovery violation. Moreover, Young's trial counsel did not know about the statement because Young's trial counsel was not present at the suppression hearing and the statement was not disclosed in the written discovery that Young's counsel received from the State. Since Young's trial counsel did not know about McDaniel's testimony concerning Young's offer to be an informant, his failure to file a motion in limine to exclude this testimony is not revealing as to how he would have proceeded had the statement been disclosed in discovery.
The State next argues that Young's strategy at trial was "to blame Ms. Pierce for the ownership of the drugs and to show that Appellant's confession was coerced and made only to protect his girlfriend from going to jail." The State asserts that Young's offer to be an informant does not undermine this position and that, therefore, the State's failure to disclose the statement in discovery would not have affected Young's trial strategy. But this is just obviously wrong. An offer to be an informant implies actual knowledge of drugs or drug dealing that would be useful to law enforcement. Young possessing such knowledge is entirely inconsistent with Young denying that the drugs were actually his. If the drugs were not his and he did not purchase them, he would have no knowledge of the drug trade that would make him a useful informant to law enforcement. Therefore, McDaniel's testimony regarding Young's offer to be an informant did in fact undermine Young's trial strategy.
It is the State's burden to establish that its discovery violation did not procedurally prejudice Young and both of the arguments put forth by the State are unavailing. The record is not sufficient in this case for us to find beyond a reasonable doubt that had Young's trial counsel been properly made aware of a statement that directly undermined his trial strategy, he would not have altered his trial strategy or preparation in a manner that could have reasonably benefitted the defendant.
The State also argues that at trial, Young's attorney was more concerned with the effect of McDaniel's testimony on the jury than on his trial strategy. This is completely irrelevant, as the precedent cited herein makes clear that: (1) prejudice for purposes of a Richardson hearing pertains to defendant's trial preparation or strategy (not to the effect on the jury); (2) the trial court had an affirmative duty to inquire into such prejudice upon being informed of a discovery violation even if the defendant did not specifically argue or mention the Richardson factors; and (3) the State bears the burden during a Richardson hearing to demonstrate a lack of prejudice to the defendant.
Conclusion
The State committed a discovery violation in the proceedings below. The trial court was alerted to the discovery violation during the trial but failed to conduct the required Richardson hearing. Given the trial court's failure to conduct a Richardson hearing, it is the State's burden to demonstrate beyond a reasonable doubt that the State's discovery violation did not cause procedural prejudice to Young such that had the violation not occurred, his trial preparation or strategy would not have been materially different in a manner that could have reasonably benefitted Young. The State has failed to meet that burden. Accordingly, we are compelled to reverse Young's conviction and remand this case to the trial court to conduct a new trial.
Affirmed in part; Reversed in part; and Remanded for further proceedings.
NARDELLA and BROWNLEE, JJ, concur