Kerry Wilson v. State of Florida , 261 So. 3d 723 ( 2018 )


Menu:
  •           FIRST DISTRICT COURT OF APPEAL
    STATE OF FLORIDA
    _____________________________
    No. 1D17-809
    _____________________________
    KERRY WILSON,
    Appellant,
    v.
    STATE OF FLORIDA,
    Appellee.
    _____________________________
    On appeal from the Circuit Court for Leon County.
    James O. Shelfer, Judge.
    December 18, 2018
    M.K. THOMAS, J.
    Appellant, Kerry Wilson, appeals his judgment and sentence
    for burglary of a dwelling with person assaulted and armed
    robbery with a firearm, claiming in part the trial court abused its
    discretion by allowing an expert witness to testify at trial for the
    State. We agree, reverse, and remand for a new trial.
    Prior to trial, Appellant filed a Notice of Intent to rely on alibi
    evidence. At trial, Appellant called two witnesses who testified he
    was with them at a different location when the subject robbery was
    committed. In response, the State announced it would be calling
    an expert as a rebuttal witness. Appellant timely objected and
    argued the expert testimony was barred as the State failed to
    disclose the witness as an expert. The State argued that
    Appellant’s counsel knew of the expert, had deposed the expert
    before trial, and was in possession of the phone records to be
    referenced by the expert. Appellant’s counsel clarified the witness
    had been previously deposed, but solely on the use of cell phone
    records to locate Appellant for his arrest and not for the purpose of
    determining his location when the robbery occurred. Ultimately,
    the trial court overruled Appellant’s objection finding no discovery
    violation as “he was noted as a potential witness, this is in
    rebuttal, and a rebuttal witness would not even have to be
    disclosed. . . .” Furthermore, the trial court found because the
    witness was known to the State before trial, there was no
    “surprise.” Alternatively, Appellant requested a brief continuance
    to allow him to re-depose the witness to address the additional
    investigation efforts he performed after his deposition and at the
    request of the State. Appellant further advised that had he known
    the State was calling an expert to contradict his alibi, he would
    have called his expert to provide testimony that the phone records
    were unreliable. The trial court denied the continuance.
    At trial, the witness was called by the State as a phone records
    expert. He testified Appellant’s cell phone data did not corroborate
    his alibi evidence, but was consistent with Appellant being at the
    location of the robbery at the time the robbery occurred. Over
    objection by Appellant, the cell phone records were introduced
    during his testimony.
    The jury found Appellant guilty as charged on both counts. He
    was sentenced to life imprisonment as a prison releasee reoffender.
    Appellant filed a motion for new trial based on three grounds: (1)
    the trial court erred in failing to disclose the witness as an expert
    witness; (2) even if the trial court’s inquiry concerning the alleged
    discovery violation constituted a Richardson ∗ hearing, it was
    inadequate; and (3) the trial court erred in refusing to grant
    Appellant a brief continuance providing him an opportunity to
    depose the witness in his newly labeled expert capacity. At the
    motion hearing, Appellant’s counsel advised he had incorrectly
    stated at trial that the State had disclosed the witness, but failed
    to identify him as a phone expert. Instead, a complete review of the
    ∗
    Richardson v. State, 
    246 So. 2d 771
     (Fla. 1971).
    2
    file confirmed the State had never formally disclosed the witness
    in any context. The witness was verbally discussed by counsel at
    some point before the trial, but was never included on a witness
    list supplied to Appellant. The State confirmed the witness was
    never included on any witness list, but that his identity had been
    verbally disclosed to Appellant’s counsel before trial. The trial
    court denied the motion for new trial. This appeal followed.
    The State concedes the expert was not disclosed during
    discovery, which is a violation of Florida Rule of Criminal
    Procedure 3.200. Rule 3.200 instructs:
    Not more than 5 days after receipt of defendant’s witness
    list, or any other time as the court may direct, the
    prosecuting attorney shall file and serve on the defendant
    the names and addresses (as particularly as are known to
    the prosecuting attorney) of the witnesses the state
    proposes to offer in rebuttal to discredit the defendant’s
    alibi at the trial of the cause. Both the defendant and the
    prosecuting attorney shall be under a continuing duty to
    promptly disclose the names and addresses of additional
    witnesses who come to the attention of either party
    subsequent to filing their respective witness lists as
    provided in this rule.
    Further, Florida Rule of Criminal Procedure 3.220(b)(1)(i) requires
    the State to disclose both “alibi witnesses and rebuttal alibi
    witnesses” as well as “expert witnesses who have not provided a
    written report and curriculum vitae or who are going to testify.”
    The fact that the expert was a rebuttal witness does not alter the
    State’s obligation to disclose him as a witness to the defense.
    Sharif v. State, 
    589 So. 2d 960
    , 960 (Fla. 2d DCA 1991) (“The
    identity of rebuttal witnesses is not excepted from the state’s
    discovery obligation prescribed in Florida Rule of Criminal
    Procedure 3.220(b).”).
    Here, the trial court incorrectly concluded that “a rebuttal
    witness would not even have to be disclosed.” As explained in
    Sharif, there is no rebuttal witness exception to the witness
    disclosure requirements. 589 So. 2d at 960. The State counters that
    because Appellant knew of the witness and the subject matter of
    his testimony, he was not prejudiced by the discovery violation.
    3
    However, prior to trial, the expert’s deposition was taken
    regarding his assistance in locating Appellant after the crime
    occurred so that he could be arrested on an outstanding warrant.
    At the time of his deposition, the expert had not analyzed the cell
    phone data to determine Appellant’s location during the
    commission of the crime. It was only after the expert’s deposition
    that further investigation was requested by the State and
    performed by the expert. Although Appellant may have been
    aware the witness was qualified to complete such an analysis, he
    was never put on notice that such an analysis had been
    undertaken or that the expert would offer testimony at trial
    refuting his alibi defense.
    As a discovery violation occurred, the trial court was required
    to conduct a Richardson hearing. Appellant argues the trial court
    did not conduct an adequate Richardson hearing. “[W]hen a
    discovery violation is alleged, the standard of appellate review is
    whether the trial court abused its discretion in determining if a
    violation occurred and if so, whether it was inadvertent, and not
    prejudicial to the preparation of the defense.” Kipp v. State, 
    128 So. 3d 879
    , 881 (Fla. 4th DCA 2013) (citation omitted). In the event
    a proper hearing was not conducted, the harmless error analysis
    applies. C.D.B. v. State, 
    662 So. 2d 738
    , 741 (Fla. 1st DCA 1995)
    (citing State v Schopp, 
    653 So. 2d 1016
     (Fla. 1995)). The harmless
    error test places “the burden on the state, as the beneficiary of the
    error, to prove beyond a reasonable doubt that the error
    complained of did not contribute to the verdict, or alternatively
    stated, that there is no reasonable possibility that the error
    contributed to the conviction.” State v. DiGuilio, 
    491 So. 2d 1129
    ,
    1135 (Fla. 1986).
    Where the State commits a discovery violation, the
    standard for deeming the violation harmless is
    extraordinary high. A defendant is presumed to be
    procedurally prejudiced if there is a reasonable
    [probability] that the defendant’s trial preparation or
    strategy would have been materially different had the
    violation not occurred.
    Debord v. State, 
    152 So. 3d 788
    , 789 (Fla. 1st DCA 2014) (internal
    quotations and citations omitted).
    4
    In the instant case, there exists a reasonable probability
    Appellant would have altered his trial preparation or strategy had
    the State disclosed its intent to utilize expert testimony in rebuttal
    prior to the defense resting its case. In fact, Appellant had
    previously retained an expert who concluded the cell phone records
    were inconclusive, which would have contradicted the testimony of
    the State’s expert. Appellant chose not to call this witness based,
    at least in part, on his belief the State would not be calling an
    expert witness in rebuttal. Allowing the State to proceed with
    presenting expert testimony amounted to trial by ambush. Based
    on the foregoing, we cannot conclude beyond a reasonable doubt
    that Appellant was not procedurally prejudiced by the State’s
    discovery violation. See Debord, 
    152 So. 3d 788
    .
    As the State has failed to meet its burden of showing the
    discovery error was harmless, we must reverse and remand for a
    new trial. Id. at 789.
    REVERSED and REMANDED for a new trial.
    WOLF and MAKAR, JJ., concur.
    _____________________________
    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
    _____________________________
    Michael Ufferman of the Michael Ufferman Law Firm, P.A.,
    Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant
    Attorney General, Tallahassee, for Appellee.
    5
    

Document Info

Docket Number: 17-0809

Citation Numbers: 261 So. 3d 723

Filed Date: 12/18/2018

Precedential Status: Precedential

Modified Date: 12/18/2018