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
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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).
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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)
