Fla. Stat, (1981) - Florida State University College of Law

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'ME: TRI% mLJlT2 EXRED IN m I N G INXI EVIDENa, OVER OBJECTION, TESTIKNY QF A WITNESS WHFBJ3 ZHF: STAm BREACHED ITS DUTY TO DISWE HIS "43 AND ADDRESS AS WUIRED BY F'LL R. GRIM. P. 3.220 (a) (1) (i), AND THE couI-2T FAILED TO COFiiXJCT AN INQUIW INTO 'ME CIFCLEETAJKES SURROUNDING THE DIS- BF?EACX. Ln an attenpt to rebut the tesmny of defense witness Richard Ellwood, the prosecution called Pete Mittleman, a detective wi.th the Jacksonville Sheriff's Office. (T. 2041-2044). The defense was not furnished with ktective Mittlm's name until the &y he was called as a rebuttal witness. (T. 2013) Bfevlse counsel objected because the witness "was not list& on discovery until tdy". (T. 2014, 2037). The lower court ignored this objection, considered the admissibility of the testhny on othm grounds, and allawed the witness to testify over objection. (T. 2037-2040). mere the prosecution atterrpyts to call a witness not listed on dismveq, the trial court must hold a hearing to mike an adequate inquiry into whether the state's violation of the rule was inadvertent or willful, whether the violation was trivial or substantial, and what effect, if any, it had upn the ability of the defendant to proprly prepare for trial. Richardson v. State, 246 So. 2d 771, (Fla. 1971); Wilcox v. State, 367 So. 2d 1020 (Fla. 1979). When the defense interpses an objection, it is error to pennit an unlisted witness to testify without holding a Richardson hearing. Boynton v. State, 378 So. 2d 1309 (Fla. 1st D.C.A. 1980); Lightsey v, State, 350 So. 2d 824 (Fla. 2nd D.C.A. 1977) ; Garrett v. State, 335 So. 2d 876 (Fla. 4th D.C.A. 1976). Once a discovery violation is brought to u7E: trial cowt's attention by objection, it is the murt's duty to I.llake a full inquiry into all the circurrstances surrounding the breach t.n determine whether the defendant has be& prejudiced by the state's Page -54-
from the operation of discowry rules, and a Richardson hearing is required to determine &ether unlisted rebuttal Witnesses my testify. Kilpatrick v, State, 376 So. 2d 386 (Fla. 1979); Fascnnyer v. - State, 383 So. 2d 706 (Fla. 1st. D.C.A. 1980); Wibner v. State, 394 So. 2d 1096 (Fla. 1st D.C.A. 1981). Here, the prosecutor himself brought the discovery violation tn the murt's attention in order to "save tine because IW. Link is going to object to him being called". (T. 2013). of the violation, defense counsel objected b the witness's testhny on tm grounds, one of mi& was the discovery violation. (T. 2-13-2014). inanbent upn the trial court to conduct a Eaiclkdson hearing at which it was the state's burden to affinnatively show that the defense was not prejudiced. - &Clellan v. State, 359 So. 2d 869 (Fla. 1st D.C.A. 1.978); Lavigne v. State, 349 So. 2d 178 (Fla. 1st D.C.A. 1977). After the prosecutor stated the circumstances It was then It is never hamiless error where a Richadson hearing is required but not had, Wie, supra, unless cirdnstances establishing non-prejudice to the defendantafhmtivdy appr in the record. (Fla. 5th D.C.A. 1983). Witnesses who were friends or relatives of Ellwmd's to testify that FJlwmd had a gaod reputation for truth and veracity, had the prosecutor cclmplied with the discovery rule. detective's deposition, or at least interviewed him, in order to properly prepare a cross-examination, to investigate the basis of the detective's opinion, or to investigate the detective's crwn reputation. Fla. R. Grim. P. 3.220 by the prosecution, defense counsel had no opportunity to counter the effect of the detective's testhny. - Poe v. State, 431 So. 2d 266 Defense counsel here could have attwted to locate With adequate notice, defense counsel could have taken the Because of the violation of The prosecution took full advantage of the situation in closing argurmt, referring to Ellwood as a "pathological liar". (T. 2270). n-Se prejudice to the defense is evident; the r d y is reversal. Richardson, supra; Cmbie, supra. Page -55-
Page 1 and 2:
RPPEAL FffQM THE CIRCUIT COURIT OF
Page 3 and 4:
V TRIAL COuIiT EXRED IN FAILING TO
Page 5 and 6:
UNRELATED O??F'ENSE AS EVIDENCE OF
Page 7 and 8:
ACEEY. mm, 33tlTo~7"T% (Fla. 4th ;D
Page 9 and 10:
c?JME3IEV. smm 345 So. 2 d m CURRYV
Page 11 and 12:
i%W'HW v. STATE j// So'.' 2d 7807Fl
Page 13 and 14:
MCMILLANV. smm 4119 So. 2d 1-la. 3r
Page 15 and 16:
0 PRamCE v. STATE 337 So, 2d 7 n l
Page 17 and 18:
mmv, STATE 2d =la. 1st D.C.A, 1982)
Page 19 and 20:
0 INTRODUCTION The appellant, Fbber
Page 21 and 22: of Other Crbs, Wrongs, or Acts. (R.
Page 23 and 24: 0 (T. 1128-1129).crooVer said nothi
Page 25 and 26: 0 going to kill "the mther fucker",
Page 27 and 28: this would alleviate any problem be
Page 29 and 30: took out his knife and stabbed Padg
Page 31 and 32: (T, 1342-1343). mng's rmther disapp
Page 33 and 34: he said it, "nobdy paid any mbd to
Page 35 and 36: told the defendant to "back off". (
Page 37 and 38: and said, Yh ny God". (T. 1260). tw
Page 39 and 40: out of the cay. and walked around b
Page 41 and 42: WHEXFER THE THE JUHI UPON THE LAW Q
Page 43 and 44: IX X WHlTIWB THE TRIAL ERRED IN m I
Page 45 and 46: XVIII WHEXfER THE TRUG COUW: FBRED
Page 47 and 48: they were afraid of being killed by
Page 49 and 50: ut munsel could not argue it becaus
Page 51 and 52: to the co-defendant, who continued
Page 53 and 54: participate in the killing, 2. If t
Page 55 and 56: Brother Caps. (T. 1185) (4). the de
Page 57 and 58: So. 2d 583 (Fla. 4th D.C.A. 1983).
Page 59 and 60: EXPW AND JTETIFY PLEA BARWWNG WITH
Page 61 and 62: type of rebuke counsel received. on
Page 63 and 64: utilized the stature of his office
Page 65 and 66: likewise improper for the State Att
Page 67 and 68: Payment of mney to a witness for an
Page 69 and 70: the prosecutor informed a juror onc
Page 71: the fiream or threatened Padgett wi
Page 75 and 76: I resides. Stanley, supra; - Florid
Page 77 and 78: Pernutting the reputation testby. o
Page 79 and 80: little probative value w kn it is c
Page 81 and 82: - The fact that a defendant refused
Page 83 and 84: The United States Supre court has s
Page 85 and 86: 'BE general rule is that statements
Page 87 and 88: The general rule is that a witness'
Page 89 and 90: any person the defense "expects to
Page 91 and 92: CR, 6167 T, 58-7 Penalty (R. 16-31
Page 93 and 94: Sheppard's necklace and ring me tak
Page 95 and 96: (-TT* 1032, 10491. An execution-sty
Page 97 and 98: (5) W ilm Urgmn, the defendant's si
Page 99 and 100: The defense also argued for mitigat
Page 101 and 102: mitigating circumstance in a capita
Page 103: CFRI'IFICATE OF SERVTCE I HEREBY CE
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Fla. Stat, (1981) - Florida State University College of Law

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