Kipp v. State
128 So. 3d 879
| Fla. Dist. Ct. App. | 2013Background
- Kipp appeals convictions for three counts of felony animal cruelty and seventeen counts of misdemeanor animal cruelty.
- He argues the trial court should have held a Richardson inquiry for undisclosed expert testimony and undisclosed impeachment evidence.
- Palm Beach County officers found multiple dogs with severe ailments and conditions at Kipp’s residence.
- Brandow, a veterinary assistant, was listed as a Category A witness but not designated as an expert; she testified about symptoms and diagnoses beyond lay observation.
- The court did not perform a Richardson inquiry; Brandow’s testimony was used as expert testimony, and undisclosed impeachment evidence was used against Kipp.
- Court reverses and remands for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Richardson inquiry required for undisclosed expert testimony | Kipp argues Brandow was an expert, requiring a Richardson inquiry | State contends no Richardson issue because Brandow testimony was not expert | Reversed for new trial; Richardson inquiry required |
| Brandow testified as an expert despite Category A listing | Brandow’s testimony exceeded lay opinion | Prosecutor stated they would avoid expert testimony | Richardson violation; error not harmless on record |
| Impeachment with undisclosed prior records violated discovery rules | State used prior Animal Care records to impeach without disclosure | No Richardson inquiry for impeachment evidence permissible | Remanded for new trial; impeachment evidence requires Richardson consideration |
| Harmless error standard for discovery violations | Harmless error standard should be low | State bears heavy burden to show harmless error | Harmless-error analysis applied; state failed to meet high burden; prejudice found |
Key Cases Cited
- Richardson v. State, 246 So.2d 771 (Fla. 1971) (establishes Richardson discovery rule and inquiry requirement)
- Thomas v. State, 63 So.3d 55 (Fla. 4th DCA 2011) (discovery violation requires designation of expert; Richardson inquiry when applicable)
- Luis v. State, 851 So.2d 773 (Fla. 2d DCA 2003) (officer designated as expert; failure to indicate expert status violated discovery)
- Durrance v. State, 44 So.3d 217 (Fla. 4th DCA 2010) (discovery violation standard and prejudice considerations)
- Hicks v. State, 45 So.3d 518 (Fla. 4th DCA 2010) (harmless error standard is extraordinarily high for discovery violations)
- Schopp v. State, 653 So.2d 1016 (Fla.1995) (harmless error analysis in discovery violations)
- Scipio v. State, 928 So.2d 1138 (Fla.2006) (prejudice analysis for undisclosed discovery material)
- Portner v. State, 802 So.2d 442 (Fla. 4th DCA 2001) (impeachment with undisclosed material can be prejudicial)
- Shibble v. State, 865 So.2d 665 (Fla. 4th DCA 2004) (no impeachment exception to Richardson rule)
- Guerrie v. State, 649 So.2d 928 (Fla. 4th DCA 1995) (impeachment cannot circumvent Richardson rule)
- Casica v. State, 24 So.3d 1236 (Fla. 4th DCA 2009) (state must show prejudice from undisclosed evidence)
- Raffone v. State, 483 So.2d 761 (Fla. 4th DCA 1986) (Richardson hearing designed to ferret prejudice)