Third District Court of Appeal
State of Florida
Opinion filed April 13, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-1540
Lower Tribunal No. 12-9493
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Sandor Eduardo Guillen,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Ellen Sue
Venzer, Judge.
Law Offices of Matthew Troccoli, P.A., and Matthew J. Troccoli, for
appellant.
Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant
Attorney General, for appellee.
Before ROTHENBERG, LAGOA, and SALTER, JJ.
ROTHENBERG, J.
Sandor Eduardo Guillen (“the defendant”) appeals his criminal convictions
on the grounds that the trial court abused its discretion by: (1) denying his motion
for a continuance; (2) denying his motion to preclude the State from calling
William Wright (“Wright”) as an expert witness; and (3) permitting the State to
introduce photographs of the deceased victim’s injuries.1 Because the defendant
failed to preserve the first issue for appellate review and the trial court did not
abuse its discretion on the remaining two appellate issues, we affirm.
BACKGROUND
In 2012, the defendant was speeding on a busway in his Land Rover while
intoxicated when his vehicle slammed into a minivan carrying Kaely Camacho
(“the victim”) and her father and sister. After the collision, rather than rendering
aid, the defendant fled the scene and was ultimately arrested. The victim later died
from her injuries.
The defendant was ultimately charged with three first degree felonies: (1)
DUI manslaughter with failure to render aid; (2) vehicular homicide with failure to
render aid; and (3) leaving the scene of a crash involving death. The defendant
pled not guilty.
1 The defendant also appeals the trial court’s denial of his motion for new trial.
However, we find that the defendant’s arguments are without merit, and the trial
court did not abuse its discretion. We therefore affirm the denial.
2
The relevant procedural history is as follows. Approximately ten days prior
to the scheduled February 25, 2014 trial, a new prosecutor was assigned to
prosecute the case. On February 17, 2014, after reviewing the file, the newly
assigned prosecutor listed Wright as an expert witness, but indicated to defense
counsel that she would probably not call Wright at trial. Thereafter, the State
moved for a sixty-day continuance because, among other reasons, the State needed
time to meet with Wright and to prepare for trial, and defense counsel needed time
to depose Wright. On February 19, 2014, the trial court heard the State’s motion
for a continuance. At the hearing, the defendant objected to the listing of Wright as
a witness, but stated that if the trial court permitted the State to list Wright as a
witness, the defendant would then join with the State in requesting a continuance.
The trial court denied the joint motion for a continuance, stating that there was
sufficient time before trial to conduct the necessary depositions and prepare for
trial.
The State deposed the defendant’s accident reconstruction expert witness,
Miles Moss (“Moss”), on February 21, 2014, at which time the State learned that
Moss had revised his vehicular speed calculations from what he had previously
provided in his report. As a result, the State immediately informed the defendant
that it intended to call Wright as a witness at the trial, and the defendant deposed
Wright.
3
On February 24, 2014, after deposing Wright, the defendant moved to
preclude the State from calling Wright as an expert witness based on the late
disclosure of Wright as a witness. The State responded that the late disclosure of
Wright as a witness was caused, in part, by the defendant’s failure to disclose that
the defendant’s expert, Moss, had revised his vehicular speed calculations, and that
these revisions required the opinion of a more experienced expert, like Wright, to
provide rebuttal testimony. The trial court denied the defendant’s motion to
preclude Wright from testifying as a witness.
Prior to the start of trial on February 25, 2014, the defendant asked the trial
court to note his continuing objection to Wright being called as a witness. In
response, the trial court conducted a Richardson2 hearing to determine whether the
State had committed a discovery violation and if so whether Wright should be
excluded as a witness. The State explained that it only decided to call Wright after
deposing the defendant’s expert, Moss, and learning that although Moss had
changed his testimony several weeks earlier, no one had disclosed this fact to the
State. Although the trial court found insufficient procedural prejudice to warrant
exclusion of Wright as a witness, the trial court reset opening statements to the
following day to allow defense counsel to consult with his own expert regarding
2 Richardson v. State, 246 So. 2d 771 (Fla. 1971).
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Wright’s expected testimony, and the trial court further ordered the State to make
its experts available to defense counsel.
The defendant also objected before and at trial to the admission of certain
photographs of the victim’s injuries, arguing that they were unfairly prejudicial.
The trial court overruled the objections, reasoning that the probative value of the
objected-to photographs was not outweighed by their prejudicial effect.
After a four-day jury trial, the defendant was convicted on all three counts,3
and after his motion for a new trial was denied, he filed the instant appeal.
ANALYSIS
I. Denial of Defendant’s Motion for a Continuance
First, we find that the defendant failed to preserve for appellate review the
denial of his motion for a continuance. Although defense counsel renewed his
motion to exclude Wright as a witness, he did not seek a continuance after the trial
court denied his motion to exclude Wright as a witness, and, in fact, announced
that he was ready for trial.
The record reflects that after the trial court denied the defendant’s motion to
exclude Wright, the trial court specifically asked the defendant if he was ready for
trial.
3 Pending this appeal, the trial court vacated all but the DUI manslaughter
conviction.
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[The State]: It doesn’t sound as if [defense counsel] is asking
for additional time. I don’t know if he is or not.
[Defense counsel]: I have - other than not waiving the objection
to the expert’s [sic] post Perez, I’ve made the best of the Court’s order
in taking the deposition and done my best to get ready.
The Court: Are you prepared to go to trial, sir?
[Defense counsel]: Yes.
Because the defendant failed to renew his motion for a continuance at the
start of the trial and defense counsel actually stated that he was prepared to go to
trial, the defendant failed to preserve for appellate review the trial court’s denial of
his motion for a continuance. See McCray v. State, 369 So. 2d 111, 112 (Fla. 1st
DCA 1979) (“[A]ppellant has not properly preserved for appellate review his
pretrial motion for continuance since it was not renewed at the time of the trial;
moreover, appellant's counsel indicated at trial that he was in fact ready for trial.”);
Riggins v. State, 283 So. 2d 878, 879-80 (Fla. 1st DCA 1973) (holding that the
defendant waived his motion for a continuance when he failed to object at the time
of trial).
However, even if the defendant had preserved for appellate review the
denial of his motion for a continuance, we would still affirm because no prejudice
has been demonstrated. A reviewing court will not reverse a trial court’s denial of
a motion for a continuance unless the trial court abused its discretion. Bouie v.
State, 559 So. 2d 1113, 1114 (Fla. 1990). “An abuse of discretion is generally not
6
found unless the court’s ruling on a continuance results in undue prejudice to the
defendant.” Randolph v. State, 853 So. 2d 1051, 1062 (Fla. 2003).
A trial court does not abuse its discretion by denying a motion for a
continuance if the defendant will not suffer undue prejudice. See Randolph, 853
So. 2d at 1062. The defendant claims that he suffered prejudice because he did not
have sufficient time to fully understand the “drag factor” Wright used to calculate
the speed of the two vehicles involved in the crash. For the following reasons, we
disagree.
A defendant will generally suffer no prejudice if he was aware of the
substance of the witness’s testimony and was able to depose the witness prior to
trial. See Diaz v. State, 132 So. 3d 93, 118 (Fla. 2013) (finding no abuse of
discretion where the trial court denied the defendant’s motion for a continuance to
prepare a rebuttal to the State’s expert’s testimony because the defendant was
previously aware of the substance of the testimony of the witness); Cooper v.
State, 336 So. 2d 1133, 1139 (Fla. 1976) (holding that the trial court did not abuse
its discretion by denying a motion for a continuance where an expert was added as
a witness on the third day of trial, but the defendant was given an opportunity to
depose the witness before the witness testified at the trial).
In the instant case, the defendant was not surprised by Wright’s testimony
regarding the “drag factor” he relied on in calculating the speed of the vehicles at
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the time of the crash. All of the accident reconstruction witnesses, including the
State’s previously listed witnesses, Det. Perez and Sgt. Greenwell, and the
defendant’s own expert witness, Moss, relied on the “drag factor” to calculate the
speed of the vehicles. Sgt. Greenwell’s and Det. Perez’s drag factor calculations
differed substantially from Moss’s calculations. Thus, the defendant should have
known that the drag factor calculations were in dispute well before the State added
Wright as a witness. Additionally, the defendant deposed Wright on February 24,
2014, and had three days to evaluate Wright’s calculations before Wright took the
stand on February 27, 2014.
We are also unpersuaded by the defendant’s argument that it created an
undue burden upon defense counsel to prepare for Wright’s testimony in the days
leading up to the trial. As the Florida Supreme Court stated, “[o]ur rules were not
designed to eliminate the onerous burdens of trial practice.” Cooper, 336 So. 2d at
1138. The fact that defense counsel had only a few days prior to trial to consider
Wright’s largely cumulative testimony does not establish undue prejudice. See,
e.g., Gause v. State, 270 So. 2d 383, 384 (Fla. 3d DCA 1972) (affirming the trial
court’s denial of a motion for a continuance and rejecting the defendant’s argument
that his new defense counsel, who was substituted only five days before trial, had
insufficient time to prepare).
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We reject the defendant’s claim that the trial court abused its discretion by
denying the defendant’s motion for a continuance because the defendant was
aware that there was a dispute over the “drag factor” long before trial, permitted to
depose Wright prior to trial, given time to consult with his own expert regarding
Wright’s testimony prior to trial, and provided with the transcript of Wright’s
deposition testimony before Wright testified.
II. Denial of Defendant’s Motion to Exclude Wright as a Witness
After the defendant asked for a continuing objection to Wright testifying at
trial, the trial court timely conducted a Richardson hearing to determine whether
the late addition of Wright warranted excluding Wright as a witness. When a trial
court conducts a Richardson hearing, an appellate court “review[s] the record to
determine if the [Richardson] inquiry was properly made and if the trial court’s
actions pursuant to the inquiry were proper.” Delhall v. State, 95 So. 3d 134, 160
(Fla. 2012). Because the defendant does not dispute that the trial court followed the
proper procedure required by Richardson, our review is limited to a determination
of whether the trial court abused its discretion in refusing to exclude Wright
pursuant to its Richardson inquiry. Id. at 160.
Pursuant to Richardson, the trial court must first determine whether a
discovery violation has occurred, and if so, the trial court must “inquire as to
whether the violation (1) was willful or inadvertent; (2) was substantial or trivial;
9
and (3) had a prejudicial effect on the aggrieved party’s trial preparation.” State v.
Evans, 770 So. 2d 1174, 1183 (Fla. 2000). The focus of the inquiry is whether and
to what degree the discovery violation would cause procedural prejudice to the
defendant. Joubert v. State, 847 So. 2d 1056, 1058 (Fla. 3d DCA 2003) (“[T]he
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.”) (quoting State v. Schopp, 653 So. 2d 1016, 1020 (Fla.
1995)); Jones v. State, 360 So. 2d 1293, 1296 (Fla. 3d DCA 1978) (“The key
question in a situation in which a discovery violation is alleged is whether or not
the defendant was significantly prejudiced by the state’s failure to produce the
requested evidence.”).
At the outset, we note that the record is unclear as to whether the late
addition of Wright as an expert witness was actually a discovery violation. Rule
3.220(b)(1) of the Florida Rules of Criminal Procedure, sets forth the State’s
discovery obligations. Rule 3.220(b)(1)(A) specifies that within fifteen days after a
defendant serves a Notice of Discovery, the State must serve a written discovery
exhibit, which among other things, lists all persons known to the prosecutor to
have information relevant to the offenses charged or any defenses thereto. Rule
3.220(b)(1)(A) also specifies that the prosecutor must designate the category of
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each witness. Expert witnesses whom the prosecutor intends to call and who have
not provided a report are listed as Category A witnesses in rule 3.220(b)(1)(A)(i).
If the State had intended to call Wright as an expert witness at the time it
responded to the defendant’s Notice of Discovery, it committed a discovery
violation by failing to include Wright’s name and address in the discovery
response. Additionally, even if Wright had not initially been listed because he had
no involvement with the case, and the State had no intention of calling him as a
witness, under rule 3.220(j) the State had a continuing obligation to disclose and
produce Wright once it determined that he might be called by the State to testify at
the defendant’s trial.
(j) Continuing Duty to Disclose. If, subsequent to compliance with
the rules, a party discovers additional witnesses or material that the
party would have been under a duty to disclose or produce at the time
of the previous compliance, the party shall promptly disclose or
produce the witnesses or material in the same manner as required
under these rules for initial discovery.
Fla. R. Crim. P. 3.220(j).
The record, however, reflects that when a new prosecutor was assigned to
prosecute this case ten days prior to trial, the new prosecutor decided to list Wright
as a potential expert witness after discovering that the defendant had listed a
defense expert witness, Moss. The listing of Wright appears to have been a
precautionary action because Moss had not yet been deposed and, based upon
Moss’s report, the State indicated that it probably would not call Wright as a
11
witness. After listing Wright, the State moved for a continuance to allow Wright to
evaluate the evidence, the State to consult with Wright, and the defendant to
depose Wright. However, after the State deposed Moss and learned that after
writing his report he had changed his testimony, the State decided to call Wright as
a witness. If the State listed Wright as soon as Wright was consulted and the State
decided to add him as a potential witness, then there was no discovery violation,
see Burkes v. State, 946 So. 2d 34, 37 (Fla. 5th DCA 2006) (“[Rule 3.220(j)] is
violated when the State or the defense withholds ‘additional witnesses or material’
that, if discovered earlier, would have been subject to mandatory disclosure”)
(emphasis added), and the inquiry as to whether he should be excluded as a witness
at trial rests on any prejudice the defendant may suffer as a result of the late listing.
See Bryant v. State, 41 Fla. L. Weekly D364 (Fla. 4th DCA Feb. 10, 2016)
(finding that the late disclosure of DNA evidence was not a discovery violation,
but that the trial court properly considered whether the late disclosure caused the
defendant to suffer procedural prejudice and cured the prejudice by granting a
continuance rather than excluding the DNA evidence).
Although it appears that there was no discovery violation, because the
record is unclear and because the trial court conducted a Richardson hearing, we
will briefly address the Richardson factors.
A. Whether the alleged discovery violation was willful or inadvertent
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For the reasons previously discussed in this opinion, the record supports the
finding that the alleged discovery violation was not willful. The defendant’s
expert, Moss, prepared a report detailing his opinions and conclusions. Based on
Moss’s conclusions, the State did not believe it needed to list and call an expert to
refute Moss’s testimony. However, when the State deposed Moss and learned that
he had changed his calculations and conclusions and that these changes were
relevant and material to the issue of causation, the State decided to call Wright as
an expert. Specifically, Moss changed his calculations and conclusions as to the
speed each of the vehicles were traveling at the time of the crash and the drag
coefficient.
B. Whether the alleged discovery violation was substantial
The alleged discovery violation was not substantial. Wright’s testimony did
not materially differ from previously listed State witnesses. His testimony with
regard to the drag factor was consistent with the testimony of Sgt. Greenwell.
Wright set the drag factor at .42, while Sgt. Greenwell set the drag factor at .40,
.48, and .50. These numbers differed substantially from the .26 drag factor
calculation relied on by Moss. In addition, Wright’s speed calculations were more
favorable to the defendant than Det. Perez’s calculations. Det. Perez claimed that
the defendant was driving at ninety miles per hour, while Wright claimed the
defendant was driving at eighty-three miles per hour.
13
But more importantly, the speed of the vehicles was not a significant issue at
trial. All of the witnesses, including the defendant’s own expert, testified that the
defendant was driving far in excess of the speed limit, in the busway, while highly
intoxicated, and that the car the victim was a passenger in was traveling slower
than the posted speed limit. The posted speed limit was forty miles per hour.
Although the State’s witnesses calculated the defendant’s speed of travel at
between eighty-three and ninety miles per hour, even the defendant’s expert
concluded that the defendant was driving far in excess of the forty miles per hour
speed limit, opining that the defendant was traveling at a speed of seventy-two
miles per hour upon impact and further concluding that the vehicle the victim was
in was only traveling at a speed of between twenty-eight and thirty-eight miles per
hour. The defendant’s defense was not that he was not speeding or that the driver
of the vehicle the victim was in was traveling too fast. His defense was that when
he entered the intersection the light was green and thus he had the right-of-way and
he did not cause the accident. Therefore, Wright’s testimony regarding the rate of
speed of the vehicles and his use of a .42 drag coefficient to determine the speed
was not a material issue at trial.
C. Whether the State’s alleged discovery violation was prejudicial
The defendant makes the same “prejudice” arguments in both his appeal of
the trial court’s denial of his motion for a continuance and his appeal of the trial
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court’s denial of his motion to exclude Wright as a witness. He contends that the
late addition of Wright prejudiced his ability to prepare a defense because defense
counsel had insufficient time to understand the science behind Wright’s testimony,
and in particular, Wright’s use of a .42 drag factor. The defendant suggests that it
was therefore error to deny his motion to preclude Wright from testifying. We find
that for the same reasons discussed above, the defendant was not procedurally
prejudiced by the State’s alleged discovery violation.
Even assuming prejudice, excluding Wright as a sanction would have been
an improper remedy. While a trial court has broad discretion to impose the
sanctions it deems appropriate in order to resolve the prejudice caused by a
discovery violation, see Fla. R. Crim. P. 3.220(n)(1), the decision to exclude a
witness should only be made where no other sanction or remedy would suffice.
State v. Rodriguez, 907 So. 2d 564, 565 (Fla. 3d DCA 2005). Thus, even if the
defendant was able to demonstrate some prejudice, the trial court did not abuse its
discretion when it denied the defendant’s motion to preclude Wright because the
prejudice that resulted from the State’s late disclosure was cured when the
defendant was able to depose Wright and evaluate Wright’s testimony days before
Wright took the stand at trial. As we previously noted,
[I]t is manifest that whatever prejudice to a defendant’s ability to
defend against the charges may be said to arise from a delay in
providing him with discovery is cured when he is provided with such
15
discovery, and there is no other impediment to his utilizing it in the
preparation of his defense.
State v. Del Gaudio, 445 So. 2d 605, 610 (Fla. 3d DCA 1984). Because defense
counsel had sufficient time to consider and prepare for Wright’s testimony, any
prejudice caused by the State’s late disclosure was cured.
III. Admissibility of the Objected-to Photographs
[T]rial courts have broad discretion in admitting photographic
evidence and the test for the admission of such evidence is not
whether the evidence is necessary. Rather, the evidence is subject to
the balancing test: whether the evidence is relevant and, if so, whether
the probative value outweighs the danger of prejudice.
Armstrong v. State, 73 So. 3d 155, 168 (Fla. 2011)
Only three of the photographs that the defendant objected to were potentially
graphic because they depicted the victim’s head with an open wound and blood.
However, “[t]he mere fact that photographs may be gruesome does not necessarily
mean they are inadmissible.” Harris v. State, 843 So. 2d 856, 864 (Fla. 2003).
These photographs were relevant to demonstrate the extent of the damage caused
by the crash and to corroborate the defendant’s speed of travel upon impact. We
find that the probative value of these photographs was not outweighed by their
potential to unduly prejudice the defendant, and therefore, the trial court did not
abuse its discretion by admitting these photographs at trial.
CONCLUSION
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We affirm based on the following. First, the defendant did not preserve for
appellate review the denial of his motion for a continuance because, at the time of
trial, he admitted to the trial court that he was ready to proceed to trial. We also
find that even if the issue had been properly preserved, the trial court did not abuse
its discretion by denying the defendant’s motion for a continuance because the
defendant did not demonstrate undue prejudice. Second, we find that the trial court
did not abuse its discretion by denying the defendant’s motion to preclude the State
from calling Wright as a witness because the State’s alleged discovery violation
was not willful, substantial, or procedurally prejudicial, and because any prejudice
was cured when the defendant deposed Wright several days before Wright took the
stand, the defendant was able to consult with his own expert witness regarding
Wright’s testimony prior to trial, and the defendant had a transcribed copy of
Wright’s deposition testimony prior to Wright testifying at trial. Lastly, we find no
abuse of discretion by allowing the State to introduce the objected-to photographs
of the victim’s body because the photographs were relevant and not unfairly
prejudicial.
Affirmed.
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