IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
NICOLE CHERI PARKER, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D16-1855
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed September 13, 2017.
An appeal from the Circuit Court for Okaloosa County.
Michael Flowers, Judge.
Bert Moore, The Moore Law Office, Crestview, for Appellant.
Pamela Jo Bondi, Attorney General, and Tayo Popoola, Assistant Attorney General,
Tallahassee, for Appellee.
PER CURIAM
Nicole Cheri Parker appeals, on multiple grounds, her conviction for
aggravated battery with great bodily harm and with a weapon. Of her claims, we
write to address only the assertion that the trial court committed reversible error in
failing to conduct an adequate Richardson hearing. See Richardson v. State, 246 So.
2d 771 (Fla. 1971). On this point, we agree with Nicole Parker, and reverse and
remand for a new trial.
Nicole Parker’s conviction is related to an incident that took place at the
residence of Candice Day. Nicole Parker was convicted of cutting the throat of
Wade Parker (her estranged husband) during an altercation between Wade Parker
and another acquaintance, Donald Jesperson. Testimony from eyewitnesses
established that while Wade Parker was in a fighting hold with Jesperson, Nicole
Parker jumped on Wade Parker’s back. Subsequently, Wade Parker’s throat was cut
with a knife. Conflicting testimony was presented at trial as to who committed the
offense.
Candice Day testified at trial, that during the fight, Nicole Parker came
running into her bedroom, grabbed a knife, and ran out. She also testified that Nicole
Parker came back in the room shortly after and said, “Candice, I swear to God I
didn’t cut [Wade].” Day’s trial testimony was significantly different from the
statement she gave to police immediately following the incident. During cross-
examination, defense counsel established that Day’s sworn statement to the police
did not include any mention of Nicole Parker grabbing a knife from the bedroom,
nor did it include the statement upon re-entering the bedroom. Day confirmed that
her prior sworn statement did not allege these facts. She emphasized the State
became aware of the additional facts during a pre-trial meeting. She testified:
I know what it says. And I talked to Ms. Torres (prosecutor) about it. I
was under the impression that I was going to be questioned by
investigators, like they did everybody else. And at that point I was
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scared because she had not been found. And it’s better for me to tell my
statement than write it.
The State did not notify defense counsel prior to trial of the expected changes to
Day’s testimony.
Following cross-examination of Day, defense counsel timely objected and
argued the State committed a discovery violation by not advising of the change in
Day’s testimony prior to trial. In response, the trial court focused on whether Day
had recanted anything in her original statement or had merely added to it at trial.
Finding Day merely supplemented her earlier testimony, the trial court denied
defense counsel’s objection without further explanation or inquiry.
Richardson Hearing
Once on notice of a potential discovery violation, the trial court initiates
the Richardson inquiry as follows: 1) the court must determine whether a discovery
rule has been violated; and 2) if the court finds a violation, it must assess whether
the violation was inadvertent or willful, trivial or substantial, and whether it has
prejudiced the opposing party’s ability to prepare for trial. Johnson v. State, 25 So.
3d 662, 665 (Fla. 1st DCA 2010); Richardson, 246 So. 2d at 775.
In the present case, defense counsel placed the trial court on notice that a
possible discovery violation had occurred, which triggered a Richardson inquiry.
Following a brief discussion, the trial court denied defense counsel’s objection to
Day’s testimony. The trial court did not address step two of the Richardson analysis;
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thus, presumptively finding that the State did not commit a discovery violation.
“Where a trial court rules that no discovery violation occurred, the reviewing court
must first determine whether the trial court abused its discretion.” Pender v. State,
700 So. 2d 664, 667 (Fla. 1997).
In State v. Evans, the Florida Supreme Court held that the State’s failure to
inform the defendant of an anticipated change in a witness’s testimony from initial
statement to testimony at trial was tantamount to failing to disclose a witness, and
thus, the State committed a discovery violation. 770 So. 2d at 1179. In Evans, a
witness told police she essentially knew nothing about an alleged shooting. Id. at
1176. However, at trial, the witness testified she had a discussion with the defendant
the night before the shooting, in which the defendant laid out his plan to shoot the
victim. Id. The witness also testified that she told police about the conversation
approximately one month before trial. Id. The State had knowledge of the changed
testimony, but did not disclose the change to the defense. Id. The court determined
this failure to disclose resulted in a discovery violation. Id.
The factual scenario in the present case is nearly identical to that of Evans.
The State concedes that it was aware Day’s testimony at trial was going to be
different from her previous statement to police and that the defense was not informed
of the change. Accordingly, we find the State committed a discovery violation by
failing to provide Nicole Parker with the substance of the changed testimony prior
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to trial, and the trial court abused its discretion in finding otherwise. Because we
determine that a discovery violation occurred, we also must conclude that the scope
of the Richardson inquiry was inadequate, as the trial court did not inquire into the
factors of whether the violation was inadvertent or willful, trivial or substantial, and
if prejudicial to the opposing party’s trial preparation.
Harmless Error
A Richardson violation is subject to harmless error analysis. C.D.B. v. State,
662 So. 2d 738, 741 (Fla. 1st DCA 1995) (quoting State v. Schopp, 653 So. 2d 1016,
1020 (Fla.1995)); Pender v. State, 700 So. 2d 664, 666 (Fla. 1997).
In determining whether a Richardson violation is harmless, the
appellate court must consider whether there is a reasonable possibility
that the discovery violation procedurally prejudiced the defense. As
used in this context, the 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...
In other words, only if the appellate court can say beyond a reasonable
doubt that the defense was not procedurally prejudiced by the discovery
violation can the error be considered harmless.
Schopp, 652 So. 2d at 1021. In Scipio v. State, 928 So. 2d 1138, 1148 (Fla. 2006),
the Florida Supreme Court also said of its decision in Schopp, “[t]he decision further
noted that ‘the vast majority of cases’ will not have a record sufficient to support a
finding of harmless error and that there is a ‘high probability’ that any given error
will be found harmful.”
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Applying the Schopp standard to the present case, we cannot conclude beyond
a reasonable doubt that, “neither the discovery violation nor the trial court’s failure
to inquire into whether corrective sanctions were warranted materially hindered the
defendant’s trial preparation or strategy.” Schopp, 652 So. 2d at 1020; Kiser v. State,
921 So. 2d 28, 30 (Fla. 1st DCA 2006). In this case, there was no testimony, other
than Day’s, that specifically addressed the origin of the knife used to cut Wade
Parker. Though two witnesses linked Nicole Parker with the knife after she jumped
on Wade Parker’s back, no witness other than Candice Day placed the knife in her
hand before the incident. Jesperson testified he saw a knife in Nicole Parker’s hand
after she jumped on Wade Parker’s back and cut his throat. Similarly, Troy Day
testified that the knife was dropped after Nicole Parker made contact with Wade
Parker. However, with the exception of Candice Day, no witness testified that
Nicole Parker had a knife in her hand before she made contact with Wade Parker.
And until Candice Day testified at trial, defense counsel was not aware that a witness
could place Nicole Parker with a knife immediately before the incident.
Additionally, in contrast to her sworn statement to the policy, Candice Day testified
at trial that Nicole Parker said “Candice, I swear to God I didn’t cut [Wade].”
According to Candice Day, that statement was made after Wade Parker was cut, but
before anyone had accused Nicole Parker of committing the act. It cannot be said
that there was no reasonable possibility that Nicole Parker’s trial preparation would
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have been different if the discovery violation had not occurred. The failure to hold
an adequate Richardson hearing, under these facts, does not constitute harmless
error.
Accordingly, based on the above, we reverse and remand for a new trial. We
affirm the two remaining issues raised without further comment, as we find that the
trial court did not commit fundamental error in admitting the video of Nicole
Parker’s custodial interrogation, nor did it err in denying her motion for judgment of
acquittal.
REVERSED and REMANDED for a new trial consistent with this opinion.
ROWE, RAY, and M.K. THOMAS, JJ., CONCUR.
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