Memo on Discovery Obligations

A.       Discovery Obligations – Richardson

The Richardson rule¹ is invoked whenever noncompliance with a discovery requirement is alleged, and has been applied to the entire range of possible discovery violations including:

• failure to disclose a statement that the defendant allegedly made to the victim²
• the defendant's failure to include a witness on the witness list³
• failure to timely deliver the results of a DNA report⁴
• failure to disclose the defendant's oral statements⁵
• failure to provide the defendant with notice of its intent to use a blood alcohol test result⁶
• failure to reveal that an expert witness' work was reviewed by another expert in the field⁷
• failure to disclose the identity of a witness,⁸ including that of a codefendant,⁹ a rebuttal witness,¹⁰ an alibi witness,¹¹ or an expert witness¹²
• failure to timely file a list of witnesses for the defense¹³ or prosecution¹⁴
• the state's failure to disclose the recorded statement of its witness¹⁵
• the state's failure to timely deliver a ballistics report¹⁶
• the state's failure to disclose the existence of inculpatory fingerprints¹⁷
• the state's failure to disclose a purported confession¹⁸
• the state's failure to disclose that a videotape it possessed of an apparent drug transaction was an unedited version where the defendant had received an edited version¹⁹
• defense counsel's failure to produce a witness for deposition on the date specified by the court²⁰
• untimely disclosure of tangible evidence²¹
• nondisclosure of statements made by the accused²² or the accused's witness²³
•  nondisclosure of expert reports²⁴

The state's failure to provide the defendant with copies of prior judgments and sentences that are used on rebuttal to impeach the defendant's testimony at trial do not amount to a discovery violation, where the state advises the defense prior to trial that the defendant has a prior criminal record and that copies are available for inspection.²⁵

Cases:

Fact that police officer who State sought to qualify as an expert at drug trial was not designated as an expert witness in State's pretrial discovery, but rather was listed only as a category A witness to undercover drug operation that gave rise to the charge against defendant, constituted a discovery violation by the State and, thus, required trial court to conduct a Richardson hearing to determine whether the violation was inadvertent or willful, trivial or substantial, and prejudicial to trial preparation. West's F.S.A. RCrP Rule 3.220(b)(1)(A)(i). Henry v. State, 42 So. 3d 328 (Fla. Dist. Ct. App. 2d Dist. 2010).

State's failure to disclose to defense defendant's threatening statements to victim witness was not harmless error; timely disclosure of alleged threats would have allowed defense attorney to investigate incident and search for evidence to refute it or at least cast doubt on victim's testimony regarding attempted first degree murder and armed robbery of victim by defendant, and he could have called into question victim's credibility as a whole. West's F.S.A. RCrP Rule 3.220(b)(1)(C). Jones v. State, 32 So. 3d 706 (Fla. Dist. Ct. App. 4th Dist. 2010).

Richardson Footnotes:

1.      Fla. Jur 2d Criminal Law—Procedure § 1591

2.     Landry v. State, 931 So. 2d 1063 (Fla. Dist. Ct. App. 4th Dist. 2006).

3.     Alexander v. State, 931 So. 2d 946 (Fla. Dist. Ct. App. 4th Dist. 2006).

4.     Rojas v. State, 904 So. 2d 598 (Fla. Dist. Ct. App. 5th Dist. 2005).

5.     State v. Evans, 770 So. 2d 1174 (Fla. 2000); Powell v. State, 912 So. 2d 698 (Fla. Dist. Ct. App. 2d Dist. 2005).

6.     State v. Eaton, 868 So. 2d 650 (Fla. Dist. Ct. App. 2d Dist. 2004).

7.     Acosta v. State, 856 So. 2d 1143 (Fla. Dist. Ct. App. 4th Dist. 2003).

8.     Craig v. State, 585 So. 2d 278 (Fla. 1991); Cherry v. State, 544 So. 2d 184 (Fla. 1989); Ross v. State, 474 So. 2d 1170 (Fla. 1985); Norris v. State, 554 So. 2d 1219 (Fla. Dist. Ct. App. 2d Dist. 1990); Baker v. State, 522 So. 2d 491 (Fla. Dist. Ct. App. 1st Dist. 1988).

9.     Kilpatrick v. State, 376 So. 2d 386 (Fla. 1979); Wolski v. State, 515 So. 2d 433 (Fla. Dist. Ct. App. 4th Dist. 1987).

10.  Duest v. State, 462 So. 2d 446 (Fla. 1985).

11.  Fedd v. State, 461 So. 2d 1384 (Fla. Dist. Ct. App. 1st Dist. 1984); Lewis v. State, 411 So. 2d 880 (Fla. Dist. Ct. App. 3d Dist. 1981).

12.  Hill v. State, 535 So. 2d 354 (Fla. Dist. Ct. App. 5th Dist. 1988).

13.  Wilkerson v. State, 461 So. 2d 1376 (Fla. Dist. Ct. App. 1st Dist. 1985); O'Brien v. State, 454 So. 2d 675 (Fla. Dist. Ct. App. 5th Dist. 1984); Patterson v. State, 419 So. 2d 1120 (Fla. Dist. Ct. App. 4th Dist. 1982).

14.  Banda v. State, 536 So. 2d 221 (Fla. 1988).

15.  Brown v. State, 515 So. 2d 211 (Fla. 1987); Cooper v. State, 377 So. 2d 1153 (Fla. 1979).

16.  Whites v. State, 730 So. 2d 762 (Fla. Dist. Ct. App. 5th Dist. 1999).

17.  Brown v. State, 579 So. 2d 760 (Fla. Dist. Ct. App. 1st Dist. 1991).

18.  McCray v. State, 640 So. 2d 1215 (Fla. Dist. Ct. App. 5th Dist. 1994); P.H. v. State, 489 So. 2d 215 (Fla. Dist. Ct. App. 3d Dist. 1986) (juvenile proceeding).

19.  Rainner v. State, 731 So. 2d 763 (Fla. Dist. Ct. App. 4th Dist. 1999).

20.  Lee v. State, 534 So. 2d 1226 (Fla. Dist. Ct. App. 1st Dist. 1988).

21.  Davie v. State, 555 So. 2d 447 (Fla. Dist. Ct. App. 4th Dist. 1990); Ricci v. State, 550 So. 2d 34 (Fla. Dist. Ct. App. 2d Dist. 1989); State v. Lewis, 543 So. 2d 760 (Fla. Dist. Ct. App. 2d Dist. 1989).

22.  Landry v. State, 931 So. 2d 1063 (Fla. Dist. Ct. App. 4th Dist. 2006); Scott v. State, 558 So. 2d 1097 (Fla. Dist. Ct. App. 2d Dist. 1990); Howard v. State, 519 So. 2d 687 (Fla. Dist. Ct. App. 3d Dist. 1988); J.S. v. State, 507 So. 2d 650 (Fla. Dist. Ct. App. 4th Dist. 1987).

23.  Sun v. State, 627 So. 2d 1330 (Fla. Dist. Ct. App. 4th Dist. 1993).

24.  Lee v. State, 538 So. 2d 63 (Fla. Dist. Ct. App. 2d Dist. 1989); Rivers v. State, 526 So. 2d 983 (Fla. Dist. Ct. App. 4th Dist. 1988); Raffone v. State, 483 So. 2d 761 (Fla. Dist. Ct. App. 4th Dist. 1986), cause dismissed, 491 So. 2d 281 (Fla. 1986).

25.  August v. State, 988 So. 2d 141 (Fla. Dist. Ct. App. 5th Dist. 2008).

B.    Discovery Obligations – Brady (Exculpatory Evidence)

The constitutional privilege under Brady¹ delivers exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and insuring the integrity of our criminal justice system.² The Florida Rules of Criminal Procedure provide that as soon as practicable after the filing of the charging document the prosecutor must disclose to the defendant any material information within the state's possession or control that tends to negate the guilt of the defendant as to any offense charged, regardless of whether the defendant has incurred reciprocal discovery obligations.³ However, a prosecutor's obligation under Brady extends to the disclosure of evidence that could be used for impeachment, as well as exculpatory evidence,⁴ Thus, in determining whether prejudice ensued from the state's failure to disclose evidence, as required to establish a Brady violation, the impeachment value of the undisclosed evidence must be analyzed.⁵

Cases:

The state's alleged suppression in a capital murder prosecution of testimony by a cab driver that he picked up a person other than the defendant who stated that he had been mugged and was bleeding from the face, approximately 16 blocks from the crime scene and approximately 30 minutes after the murder, was not a Brady violation, where that information would not have logically connected the person that the cab driver picked up to the murder, and the defendant failed to allege how that testimony would have impeached any of the evidence presented by the state during trial.⁶ Also, assuming that nonverbatim statements of witnesses contained within police reports provided to a capital murder defendant were excised from such reports before such reports were provided to defense counsel, such excision did not deprive the defendant of material exculpatory evidence in violation of his constitutional right to a fair trial, where the statements allegedly excised were available to defense counsel in the police detective's pretrial deposition testimony, in which he essentially recited the entire contents of his written report, including nonverbatim statements of witnesses.⁷

Whether evidence is exculpatory or impeaching, for purposes of establishing a Brady violation, is a question of fact that can be resolved by an evidentiary hearing.⁸

The Florida Rule of Criminal Procedure,⁹ as it relates to criminal history information, only requires the state to disclose certain convictions for witnesses intended to be called and whom are subject to impeachment, or to disclose pending criminal proceedings against such witnesses.¹⁰

The state is not merely to apprise the defense that relevant evidence exists.¹¹ Instead, the state is obligated to disclose any document in its possession which is exculpatory, even where the particular document is work product or exempt from discovery under the public records law.¹² Brady does not require that the defendant compel production of exculpatory material, or even that a defendant remind the state of its obligations.¹³ A defendant's knowledge that the state submitted evidence for testing does not create a duty to inquire further. Rather, the state has the burden to disclose to the defendant all information in its possession that is exculpatory,¹⁴ and a defendant has no duty to exercise due diligence to review Brady material until the state discloses its existence.¹⁵ A prosecution that withholds evidence from a defendant which, if made available, would tend to exculpate him or her or reduce the penalty helps shape a trial that bears heavily on the defendant.¹⁶ However, where a defendant raises a general request for exculpatory material under Brady, the state decides what information must be disclosed and, unless the defense counsel brings to the court's attention that exculpatory evidence was withheld, the prosecutor's decision on disclosure is final.¹⁷ The prosecution is not required to provide the defendant all information regarding its investigatory work on a particular case.¹⁸ Further, the state's responsibility under Brady does not extend to examining in depth the personnel files of proposed expert witnesses and divulging possible adverse comments to the defense.¹⁹

Statutes:

Prosecutor's memorandum opining on the weakness of the State's case did not constitute exculpatory evidence under Brady. Duest v. State, 12 So. 3d 734 (Fla. 2009).

State's withholding of workers' compensation letter detailing bouncer's receipt of approximately $24,000 was a Brady violation in prosecution for battery and disorderly conduct arising from incident in which defendant intervened in altercation between his friend and bouncer at bar, where a workers' compensation statute precluded compensation if the injury was occasioned primarily by the willful intention of an employee to injure or kill another, the defense wanted to use letter to demonstrate bouncer's financial motive to paint defendant and his friend as instigators of initial fight, and that type of financial interest was a proper subject of cross-examination. West's F.S.A. § 440.09(3). Deren v. State, 15 So. 3d 723 (Fla. Dist. Ct. App. 4th Dist. 2009).

Cases:

To meet the requirements of Brady, defendant must show that: (1) favorable evidence, either exculpatory or impeaching, (2) was willfully or inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced. Wyatt v. State, 71 So. 3d 86 (Fla. 2011).

State committed no Brady violation by failing to disclose that the comparative bullet lead analysis (CBLA) technique to which FBI agent testified at trial was unscientific and unsound and that there was a lack of comprehensive research necessary to ensure the reliability of CBLA results; defendant's experts testified that neither the FBI letter nor any comprehensive research uncovering the flaws in CBLA existed until well after defendant's trial, and, thus, State could not have willfully or inadvertently suppressed such information. Wyatt v. State, 71 So. 3d 86 (Fla. 2011).

State's failure to reveal state DNA laboratory analyst's full name prior to capital murder trial was not a Brady violation, since state did not suppress evidence; during discovery, state provided defense with DNA report containing analyst's initials. Taylor v. State, 62 So. 3d 1101 (Fla. 2011).

The prosecution is not required under Brady to provide the defendant all information regarding its investigatory work on a particular case regardless of its relevancy or materiality. Hurst v. State, 18 So. 3d 975 (Fla. 2009).

Brady Footnotes

1.     Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), discussed in § 1546.    15 Fla. Jur 2d Criminal Law—Procedure § 1547

2.     California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984); Melendez v. State, 498 So. 2d 1258 (Fla. 1986).

3.     Fla. R. Crim. P. 3.220(b)(4).  As to expanded discussion of materiality, generally, see § 1546.

4.     Youngblood v. West Virginia, 547 U.S. 867, 126 S. Ct. 2188, 165 L. Ed. 2d 269 (2006); Way v. State, 760 So. 2d 903 (Fla. 2000); Stanley v. State, 995 So. 2d 599 (Fla. Dist. Ct. App. 1st Dist. 2008).

5.     Hunter v. State, 2008 WL 4348485 (Fla. 2008); Mordenti v. State, 894 So. 2d 161 (Fla. 2004).

6.     Jimenez v. State, 997 So. 2d 1056 (Fla. 2008), as revised on denial of reh'g, (Sept. 29, 2008) and as revised on denial of reh'g, (Dec. 18, 2008).

7.     Davis v. State, 928 So. 2d 1089 (Fla. 2005).

8.     Allen v. State, 854 So. 2d 1255 (Fla. 2003).

9.     Fla. R. Crim. P. 3.220(b)(4).

10.  State v. Wright, 803 So. 2d 793 (Fla. Dist. Ct. App. 4th Dist. 2001).

11.  Hoffman v. State, 800 So. 2d 174 (Fla. 2001).

12.  Young v. State, 739 So. 2d 553 (Fla. 1999); Johnson v. Butterworth, 713 So. 2d 985 (Fla. 1998); Walton v. Dugger, 634 So. 2d 1059 (Fla. 1993).  As to discovery of public records, see § 1507.  As to discovery of work product, generally, see § 1511.

13.  Allen v. State, 854 So. 2d 1255 (Fla. 2003).

14.  Polk v. State, 906 So. 2d 1212 (Fla. Dist. Ct. App. 1st Dist. 2005).

15.  Allen v. State, 854 So. 2d 1255 (Fla. 2003); Ward v. State, 984 So. 2d 650 (Fla. Dist. Ct. App. 1st Dist. 2008).

16.  Mordenti v. State, 894 So. 2d 161 (Fla. 2004).

17.  Johnson v. Butterworth, 713 So. 2d 985 (Fla. 1998); Roberts v. Butterworth, 668 So. 2d 580 (Fla. 1996).

18.  Carroll v. State, 815 So. 2d 601 (Fla. 2002); Hoffman v. State, 800 So. 2d 174 (Fla. 2001).

19.  Hitchcock v. State, 991 So. 2d 337 (Fla. 2008).

C.    Discovery Obligations – Giglio (Right to Have Materially False Testimony Corrected)

A series of decisions by the United States Supreme Court establish the principle that, when a prosecution witness testifies falsely as to a material matter in a criminal prosecution and the prosecution knows that the testimony is false, the defendant's due process rights are violated unless the false testimony is corrected by the prosecution.¹ A claim pursuant to these decisions is commonly called a “Giglio claim.”² Although the earliest of these decisions, Mooney v. Holohan,³ involved deliberate elicitation of perjured testimony by a prosecutor, subsequent decisions have expanded the scope of this due process right. Thus, a Giglio claim also encompasses unsolicited material false testimony given by a prosecution witness which is known by the prosecution to be false.⁴ And, false testimony may be material and provide a basis for a Giglio claim even though the false testimony relates to a witness's motivation for testifying, rather than to the facts of the alleged crime.⁵

In applying the knowledge component of a Giglio claim, the prosecution is obviously charged with having knowledge of the things actually known to the prosecutor in the case. But the prosecution is also charged with having knowledge of things that are known by other persons in the prosecutor's office⁶ and by other governmental agents such as law enforcement officers.⁷ Thus, the failure of the prosecutor assigned to a case to make herself aware of information held by such other governmental actors does not relieve the prosecution of its obligation to correct false testimony.⁸

False testimony will be considered material for purposes of a Giglio claim unless the prosecution can establish beyond a reasonable doubt that the false testimony did not affect the judgment of the jury. Citing to decisions of the United States Supreme Court, the Florida Supreme Court explained this materiality standard in Guzman v. State⁹ as follows:

Under Giglio, where the prosecutor knowingly uses perjured testimony, or fails to correct what the prosecutor later learns is false testimony, the false evidence is material “if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 49 L.Ed.2d 342 (1976). Justice Blackmun observed in Bagley¹⁰ that the test “may as easily be stated as a materiality standard under which the fact that testimony is perjured is considered material unless failure to disclose it would be harmless beyond a reasonable doubt.” 473 U.S. at 679–80, 105 S. Ct. 3375. The State, as the beneficiary of the Giglio violation, bears the burden to prove that the presentation of false testimony at trial was harmless beyond a reasonable doubt. Id. at 680 n. 9, 105 S. Ct. 3375 (stating that “this Court's precedents indicate that the standard of review applicable to the knowing use of perjured testimony is equivalent to the Chapman [v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L.Ed.2d 705 (1967)] harmless-error standard”).¹¹¹²

Due to their nature, Giglio claims are rarely presented during trial,¹³ in a post-trial motion for a new trial,¹⁴ or on direct appeal from a conviction.¹⁵ They are most commonly presented in motions for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850.¹⁶ Rule 3.850 procedures are discussed in Chapter 21.

Goglio Footnotes

1.     See Giglio v. U.S., 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); Napue v. People of State of Ill., 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959); Alcorta v. State of Tex., 355 U.S. 28, 78 S. Ct. 103, 2 L. Ed. 2d 9 (1957); Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791, 98 A.L.R. 406 (1935).  22 Fla. Prac., Criminal Procedure § 15:3 (2012 ed.)

2.     See, e.g., Guzman v. State, 941 So. 2d 1045 (Fla. 2006) (citing Giglio v. U.S., 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972)).

3.     Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791, 98 A.L.R. 406 (1935).

4.     Alcorta v. State of Tex., 355 U.S. 28, 78 S. Ct. 103, 2 L. Ed. 2d 9 (1957).

5.     Giglio v. U.S., 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); Napue v. People of State of Ill., 360 U.S. 264, 269, 79 S. Ct. 1173, 1177, 3 L. Ed. 2d 1217 (1959) (“[A] conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment …. The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears …. The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness. The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend.”); see also Guzman v. State, 941 So. 2d 1045 (Fla. 2006).

6.     Giglio v. U.S., 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104 (1972) (“[N]either [the particular prosecutor's] authority [to promise immunity] nor his failure to inform his superiors or his associates is controlling …. The prosecutor's office is an entity and as such it is the spokesman for the Government …. To the extent this places a burden on the large prosecution offices, procedures and regulations can be established to carry that burden and to insure communication of all relevant information on each case to every lawyer who deals with it.”).

7.     Guzman v. State, 868 So. 2d 498, 505 (Fla. 2003) (“To establish a Giglio violation, it must be shown that: (1) the testimony given was false; (2) the prosecutor knew the testimony was false; and (3) the statement was material …. The first two prongs of the Giglio test are satisfied in this case. Both Cronin and the lead detective on the case testified falsely at trial that Cronin received no benefit for her testimony against Guzman other than being taken to a motel rather than jail when she was arrested. In fact, the State paid Cronin $500, a significant sum to an admitted crack cocaine addict and prostitute. The knowledge prong is satisfied because the knowledge of the detective who paid the reward money to Cronin is imputed to the prosecutor who tried the case.”).

8.     Giglio v. U.S., 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104 (1972) (“[W]hether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor.”).

9.     Guzman v. State, 868 So. 2d 498 (Fla. 2003).

10.  U.S. v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985).

11.  The Chapman v. California harmless error standard is discussed in Chapter 20.

12.  68 So. 2d at 506–507.

13.  If false testimony is revealed during trial, it can be corrected before the jury relies upon the false testimony in its deliberations.

14.  A Giglio claim may be presented in a motion for a new trial. See Fla. R. Crim. P. 3.600(b)(5). But only rarely will the basis for such a claim become apparent to the defense in the ten-day period following rendition of the verdict within which a motion for a new trial must be filed. See Fla. R. Crim. P. 3.590(a).

15.  When the factual basis for a Giglio claim first becomes known to the defense after the time for filing a motion for a new trial has expired, it may not be argued in the direct appeal from the conviction because the factual basis for the claim will not have been developed in the trial court record and the issue will not have been preserved for appellate review by appropriate objection or motion in the trial court.

16.  Florida decisions reviewing Giglio claims initiated through the filing of rule 3.850 motions for postconviction relief include Rhodes v. State, 986 So. 2d 501 (Fla. 2008), as modified on denial of reh'g, (July 3, 2008), Mordenti v. State, 894 So. 2d 161 (Fla. 2004), and Guzman v. State, 868 So. 2d 498 (Fla. 2003).

D.   Discovery - Constructive Possession of State

The state has an affirmative duty, upon demand, to furnish full discovery.¹ A defendant's right to disclosure of information is not predicated upon the prosecutor's actual possession of the information. As long as the prosecution has constructive possession of the relevant information requested by a defendant, the defendant is entitled to disclosure upon a timely demand.² In this regard, the state is charged with constructive knowledge of evidence and information held by other departments of the executive branch of Florida's government,³ including the police⁴ and the Department of Children and Family Services.⁵ The agency's “knowledge” is imputed to the state attorney for purposes of the state's duty to disclose.⁶ Thus, the knowledge of law enforcement officers is imputed to the prosecutor, for purposes of the rule requiring the disclosure of persons known to the prosecutor to have information relevant to the offense charged.⁷ Accordingly, the mere fact that the prosecution has no actual knowledge of the existence of a tape does not relieve the state of its obligation to properly respond to the defendant's discovery request.⁸

However, none of the Florida Rules of Criminal Procedure dealing with discovery require the state to disclose information that is not within the state's actual or constructive possession.⁹ Thus, the state is not required to produce investigative files where the files are not in the state's possession or control.¹⁰ It is also unlikely that the state would be deemed to have constructive possession of information held by a private party regardless of whether the state had actual knowledge of its existence.¹¹

The state's alleged suppression in a capital murder prosecution of testimony by a cab driver that he picked up a person other than the defendant who stated that he had been mugged and was bleeding from the face, approximately 16 blocks from the crime scene and approximately thirty minutes after the murder, was not a Brady violation; that information would not have logically connected the person that the cab driver picked up to the murder, and the defendant failed to allege how that testimony would have impeached any of the evidence presented by the state during his trial.¹²

Statutes:

The state is charged with constructive knowledge of information in the hands of law enforcement officers. Curry v. State, 1 So. 3d 394 (Fla. App. 1 Dist., 2009).  An assistant state attorney is charged with knowledge of information held by other lawyers and agents working in the state attorney's office. Curry v. State, 1 So. 3d 394 (Fla. App. 1 Dist., 2009).

Constructive Possession Footnotes

1.     McDowell v. State, 903 So. 2d 290 (Fla. Dist. Ct. App. 4th Dist. 2005).  Fla. Jur 2d Criminal Law—Procedure § 1528

2.     Antone v. State, 355 So. 2d 777 (Fla. 1978); Lee v. State, 538 So. 2d 63 (Fla. Dist. Ct. App. 2d Dist. 1989); State v. Alfonso, 478 So. 2d 1119 (Fla. Dist. Ct. App. 4th Dist. 1985).

3.     Antone v. State, 355 So. 2d 777 (Fla. 1978); Franklin v. State, 975 So. 2d 1188 (Fla. Dist. Ct. App. 1st Dist. 2008); Giles v. State, 916 So. 2d 55 (Fla. Dist. Ct. App. 2d Dist. 2005); Hrehor v. State, 916 So. 2d 825 (Fla. Dist. Ct. App. 2d Dist. 2005); Tarrant v. State, 668 So. 2d 223 (Fla. Dist. Ct. App. 4th Dist. 1996).

4.     Rojas v. State, 904 So. 2d 598 (Fla. Dist. Ct. App. 5th Dist. 2005).

5.     Hrehor v. State, 916 So. 2d 825 (Fla. Dist. Ct. App. 2d Dist. 2005).

6.     Lee v. State, 538 So. 2d 63 (Fla. Dist. Ct. App. 2d Dist. 1989).

7.     Smith v. State, 882 So. 2d 1050 (Fla. Dist. Ct. App. 4th Dist. 2004).

8.     Tarrant v. State, 668 So. 2d 223 (Fla. Dist. Ct. App. 4th Dist. 1996).

9.     Sinclair v. State, 657 So. 2d 1138 (Fla. 1995).

10.  Barron v. State, 990 So. 2d 1098 (Fla. Dist. Ct. App. 3d Dist. 2007).

11.  State v. McCutcheon, 495 So. 2d 931 (Fla. Dist. Ct. App. 4th Dist. 1986).

12.  Jimenez v. State, 997 So. 2d 1056 (Fla. 2008).

916 So.2d 825

District Court of Appeal of Florida,

Second District.

Sean Anthony HREHOR, Appellant,

v.

STATE of Florida, Appellee.

No. 2D04-3618.

July 6, 2005.

Synopsis

Background: Defendant was convicted in the Circuit Court, Hillsborough County, Barbara Fleischer, J., of armed kidnapping, aggravated assault, carrying concealed weapon, and battery. Defendant appealed.

Holdings: The District Court of Appeal, Davis, J., held that:

1 defendant did not commit discovery violation by failing to disclose documents that were in State's constructive possession, and

2 error in precluding defendant from using documents to impeach victim was not harmless.

Reversed.

West Headnotes (2)Collapse West Headnotes

Change View

1Criminal Law

Failure to produce information

Handwritten notes kept by victim, a coordinator for Department of Children and Family Services who was managing defendant's file, and therefore an employee of a department of executive branch of State, was in State's control and possession, and thus, defendant did not commit discovery violation by using contents of notes to impeach victim, in trial for armed kidnapping, aggravated assault, carrying concealed weapon, and battery. West's F.S.A. RCrP Rule 3.220(d)(1)(B)(iii).

0 Case that cites this headnote

110Criminal Law

110XXTrial

110XX(A)Preliminary Proceedings

110k627.5Discovery Prior to and Incident to Trial

110k627.8Proceedings to Obtain Disclosure

110k627.8(6)Failure to produce information

2Criminal Law

Failure to produce information

Criminal Law

Discovery and disclosure;  transcripts of prior proceedings

Error in precluding defendant from impeaching victim, a coordinator for Department of Children and Family Services who was working defendant's case, with her handwritten notes based on defense counsel's failure to disclose notes was not harmless, in trial for armed kidnapping and other crimes, where contents of records went to credibility of victim, who was State's chief witness. West's F.S.A. RCrP Rule 3.220(d)(1)(B)(iii).

Hrehor v. State, 916 So. 2d 825 (Fla. Dist. Ct. App. 2005)