DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
RUSSELL MOON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D19-3002
[May 12, 2021]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Mindy F. Solomon, Judge; L.T. Case No. 15-
010797CF10A.
Richard L. Rosenbaum of Law Offices of Richard Rosenbaum, Fort
Lauderdale, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellee.
GERBER, J.
The defendant appeals from his conviction of attempted second degree
murder, as a lesser included offense of attempted first degree murder. The
defendant raises four arguments, none of which merit reversal.
We write to address only the defendant’s first argument, contending the
trial court erred by failing to conduct a Richardson hearing when the state
committed a discovery violation by announcing mid-trial that it was re-
designating the defendant’s wife from a Category “C” witness to a Category
“A” witness. The state properly concedes it committed a discovery
violation, and that the trial court erred by failing to conduct a Richardson
hearing. However, the state argues its discovery violation and the trial
court’s error were harmless because the state ultimately decided not to
call the defendant’s wife to testify, thus causing no procedural prejudice
to the defendant.
We agree with the state’s harmless error argument. Therefore, we
affirm the defendant’s conviction.
We present this opinion in four parts:
1. The trial testimony;
2. The discovery violation;
3. The parties’ arguments on appeal; and
4. Our review.
1. The Trial Testimony
The testimony of the victim, along with his wife and three neighbors
who saw and/or heard the incident, was consistent. For brevity’s sake,
this opinion will present the victim’s testimony, as well as limited
testimony from the co-lead detective and a fourth neighbor who was the
defendant’s family friend. The defendant chose not to testify.
The victim testified the defendant lived down the street from him. One
afternoon, the victim was in front of his home using a shovel to put leaves
into a garbage container. He saw the defendant’s car pull up on the wrong
side of the street next to where he was working. The defendant rolled down
the driver’s side window and started making insulting comments about
the victim’s father-in-law, who had recently passed away. The victim
became upset and told the defendant “let my [father-in-law] [rest] in peace.
He pass[ed] away. He’s done.” The defendant then reached down to his
seat and showed a gun to the victim. The victim told the defendant to “get
the f*** [out of] my yard.” The defendant began to drive away, and the
victim returned to his yard work.
However, the defendant immediately stopped the car, exited the car,
and walked towards the victim with the gun. The victim began walking
backwards. When the defendant was ten feet away from the victim, the
defendant fired the gun at the victim. After the defendant fired the first
bullet, the victim held up his shovel near his head to defend himself. He
did not threaten the defendant with the shovel at any point. The defendant
fired again. The victim was shot. The victim dropped the shovel in his
driveway and fled to the back of his garage where he collapsed. The
defendant got back in his car and left.
The co-lead detective testified he retrieved the audiotape of the
defendant’s 911 call made immediately after the shooting. The state
played the 911 call for the jury. When the 911 operator asked, “What is
your emergency,” the defendant responded, “I just shot somebody.” The
defendant said it had happened about two minutes before. The following
discussion then occurred between the 911 operator and the defendant:
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911 OPERATOR: Was this an accident?
DEFENDANT: This guy was intimidating me on the street and
he had a shovel and he was calling to -- to tell me -- he says,
“F*** you” and all this stuff and I had a gun on the seat and I
started to drive off. Look like he was going to hit -- hit my car
with his shovel and I turned around, jumped out --
911 OPERATOR: Okay, sir. …--
DEFENDANT: -- and I lost my temper.
The defendant’s family friend testified that a month or more before the
incident, the defendant told her about a dispute he was having with other
neighbors. The defendant told her the other neighbors had been harassing
him. The defendant also said he would shoot the other neighbors. The
defendant’s family friend told the defendant that he could not shoot
anybody because “he would go to jail; it would cause a mess; he’ll probably
lose his house and everything. And [then] he said that he would make it
look like self-defense.”
2. The Discovery Violation
Before trial, the state’s discovery disclosure had designated the
defendant’s wife as a Category “C” witness. See Fla. R. Crim. P. 3.220
(b)(1)(A)(iii) (“Category C. All witnesses who performed only ministerial
functions or whom the prosecutor does not intend to call at trial and whose
involvement with and knowledge of the case is fully set out in a police
report or other statement furnished to the defense[.]”).
At the beginning of the trial, the trial court invoked the rule of
sequestration as to all expected trial witnesses. Because the defendant’s
wife was not expected to be a trial witness, she remained in the courtroom
throughout jury selection, opening statements, and some state witnesses’
testimony. According to the defendant, his wife remained present to
support him and to actively assist his counsel throughout trial.
In the middle of the state’s case-in-chief, the state moved to redesignate
the defendant’s wife as a Category “A” witness. See Fla. R. Crim. P.
3.220(b)(1)(A)(i) (“Category A. These witnesses shall include … (3)
witnesses who were present when a[n] … unrecorded statement was …
made by a defendant ….”). Defense counsel objected, noting the rule of
sequestration had been invoked and the defendant’s wife had been able to
remain in the courtroom when the trial commenced. The trial court
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responded that the defendant’s wife being called as a witness likely would
benefit the defense, if it benefitted either side at all.
Defense counsel objected again, arguing that converting the
defendant’s wife into a trial witness at that point precluded the defense
from deposing or investigating her. The trial court agreed with that point.
The trial court stated it would require the defendant’s wife to be made
available to the defense for a deposition, and “[i]f at that point in time,
there’s an issue that we have to deal with, again, we’re going to deal with
it.” The trial court discussed setting up the defendant’s wife’s deposition
for that night, but defense counsel then said the defense did not need the
court to do that, since it was “our client’s wife” and the defense didn’t need
“access to her.”
Defense counsel then argued that the state, before calling the
defendant’s wife, should have to “proffer something relevant that she’s
going to say that is in dispute in front of this jury.” The trial court
responded it would not tell the state how to try its case and that defense
counsel could make any appropriate objections. The following discussion
then occurred:
TRIAL COURT [speaking to defense counsel]: … I don’t think
for a moment you’re thinking that anything is being done in
bad faith. …
DEFENSE COUNSEL: I don’t think so, either. …
…
TRIAL COURT [speaking to the state]: … I’m assuming this is
done in good faith and not for any means just to keep [the
defendant’s wife] out of the courtroom. Is that correct?
STATE: That’s correct, judge. …
The trial court ruled that the defendant’s wife needed to leave the
courtroom, and it would “entertain any motion” the defense wanted it to
hear before she would be permitted to take the stand. Defense counsel
argued he would “rather have her stay in the courtroom.”
The trial court reiterated that both sides could choose whom to call and
how to try their case. Defense counsel responded the state’s action “is a
shock and a surprise to me because the case is four years old and she’s,
right now, in the middle of trial, being converted to a witness that they
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[had] said [they] definit[ely] are not calling ….” Defense counsel suggested
the state call the defendant’s wife to testify “right now” so that she did not
have to leave, because she wanted to “watch her husband’s trial.” The
prosecutor said she wanted to call the defendant’s wife later in the trial.
Defense counsel replied, “[t]hat’s okay,” and the trial court directed the
defendant’s wife to leave the courtroom.
Later in the trial, the state proffered that if it called the defendant’s wife
to testify, it would ask her “whether or not she knew the defendant was
having problems with the next-door neighbor[.]” The state argued her
potential testimony went to “motive” and whether the shooting was a
“premeditated intentional act.” Defense counsel objected that the
defendant’s wife’s proffered testimony would be barred by spousal
privilege. The trial court, out of an abundance of caution, decided to limit
the defendant’s wife’s potential testimony to “how long she has been
married and where she lives.”
Shortly thereafter, the state announced it would not call the
defendant’s wife in its case-in-chief, but may call her in its rebuttal case.
Ultimately, neither the state nor the defendant called the defendant’s wife
to testify at trial.
After the jury found the defendant guilty of attempted second degree
murder, as a lesser included offense of attempted first degree murder, this
appeal followed.
3. The Parties’ Arguments on Appeal
The defendant summarizes his argument regarding the discovery
violation as follows:
The trial court reversibly erred by failing to conduct a
Richardson hearing following a State discovery violation. After
the Rule of Sequestration had been invoked, in the midst of
trial, the Prosecutors had the Defendant’s Wife … served with
a Subpoena for Trial and moved the Court to allow it to convert
[the Defendant’s Wife] from a Category “C” witness to a
Category “A” witness. By doing so, a discovery violation was
committed. Despite bringing the discovery violation to the
Court’s attention, the Judge refused to get involved, telling the
parties to proceed with the case.
Based upon the facts and circumstances surrounding this
neighborhood incident, the Court failed to make any inquiry
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into all of the surrounding circumstances, and harmless error
cannot be found. Reversal and remand for a new trial is
required.
The state summarizes its response as follows:
The trial court’s error in failing to hold a Richardson hearing
before converting [the defendant’s wife] from a Category C to
Category A witness during trial was harmless beyond a
reasonable doubt, because there was no procedural prejudice
from the change. The category conversion did not materially
hinder [the defendant’s] trial preparation or necessitate a
change in strategy since the State decided not to call [the
defendant’s wife] to testify. …
4. Our Review
“A trial court’s failure to conduct a proper Richardson inquiry is not per
se reversible error, but is subject to a harmless error analysis.” Goldsmith
v. State, 182 So. 3d 824, 828 (Fla. 4th DCA 2016) (citation omitted). “A
discovery violation is harmless only if an appellate court can determine,
beyond a reasonable doubt, that the defense was not procedurally
prejudiced.” Id. (citation and quotation marks omitted). “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.” Id. (citation and quotation marks
omitted).
“An analysis of procedural prejudice considers how the defense might
have responded had it known about the undisclosed piece of evidence and
contemplates the possibility that the defense could have acted to counter
the harmful effects of the discovery violation.” Ward v. State, 165 So. 3d
789, 791 (Fla. 4th DCA 2015) (citation and quotation marks omitted).
“The required focus is on how the defense might have responded and not
on whether the undisclosed evidence affected the verdict.” Id. (citation
omitted).
The state properly concedes a discovery violation occurred when the
state re-designated the defendant’s wife from a Category “C” witness to a
Category “A” witness in the middle of trial. See Fla. R. Crim. P. 3.220(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
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witnesses or material in the same manner as required under these rules
for initial discovery. ...”).
The trial court was made aware of the discovery violation, yet failed to
conduct an adequate Richardson hearing. See Ward, 165 So. 3d at 791
(“[T]he trial court must inquire as to whether the violation (1) was willful
or inadvertent; (2) was substantial or trivial; and (3) had a prejudicial effect
on the aggrieved party’s trial preparation.”) (citation and quotation marks
omitted).
However, the discovery violation was harmless beyond a reasonable
doubt. First, the defense waived any argument that the violation was
willful. The trial court commented to defense counsel, “I don’t think for a
moment you’re thinking that anything is being done in bad faith.” Defense
counsel responded, “I don’t think so, either.” In other words, defense
counsel agreed that the state’s conduct was not willful.
Second, the discovery violation was trivial. After the state proffered that
the defendant’s wife’s potential testimony would show “motive” and
whether the shooting was a “premeditated intentional act,” defense
counsel objected that the testimony would be barred by spousal privilege.
The trial court, out of an abundance of caution, decided to limit the
defendant’s wife’s potential testimony to “how long she has been married
and where she lives.” These facts were undisputed and would have borne
no relevance to the jury. Thus, the violation became trivial.
Third, and most importantly, while the state’s mid-trial announcement
that it was re-designating the defendant’s wife from a Category “C” witness
to a Category “A” witness had the potential to prejudice the defendant’s
trial preparation, that prejudice never came to pass, because the state
never called the defendant’s wife to testify. Cf. Durrance v. State, 44 So.
3d 217, 221 (Fla. 4th DCA 2010) (“Moreover, even if the state committed a
discovery violation by failing to produce the transcript prior to the start of
trial, we would find the trial court’s failure to conduct a complete
Richardson hearing to be harmless beyond a reasonable doubt, because
the state never used any of the prior trial testimony.”). Nevertheless, we
note that if the state ultimately had called the defendant’s wife to rebut
the defendant’s claim that he “was having problems with the next-door
neighbor,” then we may have found that the defendant’s trial preparation
was prejudiced, because the defendant never may have made that claim
knowing the state would call his wife to potentially rebut that claim.
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Conclusion
Based on the foregoing, we conclude the state’s mid-trial discovery
violation in re-designating the defendant’s wife from a Category “C” witness
to a Category “A” witness, and the trial court’s error in failing to conduct
a Richardson hearing, were harmless beyond a reasonable doubt. On that
argument, and on the other three arguments which the defendant raised
in this appeal, we affirm. However, we use this opinion to remind our trial
judges, once again, that when a discovery violation is alleged, the proper
practice is to conduct a clearly-announced, step-by-step Richardson
hearing, analyzing whether a discovery violation occurred, and if so,
“inquire as to whether the violation (1) was willful or inadvertent; (2) was
substantial or trivial; and (3) had a prejudicial effect on the aggrieved
party’s trial preparation.” Ward, 165 So. 3d at 791 (emphasis added)
(citation and quotation marks omitted).
Affirmed.
CIKLIN and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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