Terry Bess v. State
208 So. 3d 1213
| Fla. Dist. Ct. App. | 2017Background
- Terry Bess was convicted by a jury of lewd or lascivious battery and appealed his judgment and sentence.
- The State failed to list the sexual assault nurse examiner (SANE) as an expert in discovery but called her at trial to give opinion testimony about the victim's lack of vaginal injury.
- Defense counsel objected and requested a Richardson hearing; the trial court did not conduct one and allowed the nurse to testify as an expert.
- The nurse testified that the absence of vaginal injury is not unusual in sexual assaults, directly undercutting Bess’s defense that lack of injury proved no crime occurred.
- The State conceded a discovery violation and that the trial court erred by not holding a Richardson hearing and by permitting the expert testimony, but argued the error was harmless.
- The Fifth District held the error was not harmless because the State did not prove beyond a reasonable doubt that the discovery violation did not materially prejudice Bess, and reversed and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by failing to conduct a Richardson hearing after a discovery violation | State conceded discovery violation occurred but argued error was harmless | Bess contended the court’s failure to hold a Richardson hearing prejudiced his defense | Court: Failure to hold Richardson hearing was error and not harmless; reversal required |
| Whether the SANE nurse’s undisclosed expert testimony was admissible | State allowed nurse to give expert opinion and argued harmlessness | Bess argued nurse was an undisclosed expert and testimony prejudiced trial strategy | Court: Admitting undisclosed expert testimony was error; not harmless given nurse’s opinion went to central defense theory |
| Whether the error was harmless beyond a reasonable doubt | State argued no reasonable possibility of prejudice; burden on State | Bess argued the testimony could have changed trial preparation/strategy | Court: State failed its extraordinarily high burden; cannot say beyond reasonable doubt that defense was not procedurally prejudiced |
| Remedy for the discovery error and improper expert testimony | State urged affirmance | Bess sought reversal and new trial | Court: Reversed conviction and remanded for a new trial |
Key Cases Cited
- Richardson v. State, 246 So. 2d 771 (Fla. 1971) (establishes duty to hold hearing when discovery violation alleged)
- Stimus v. State, 886 So. 2d 996 (Fla. 5th DCA 2004) (purpose of Richardson hearing is to determine prejudice from discovery violation)
- Schopp v. State, 653 So. 2d 1016 (Fla. 1995) (failure to hold Richardson hearing not per se reversible, but harmlessness standard applies)
- Cox v. State, 819 So. 2d 705 (Fla. 2002) (State’s burden to prove harmlessness in discovery violations)
- Ward v. State, 165 So. 3d 789 (Fla. 4th DCA 2015) (failure to hold Richardson hearing not harmless where undisclosed expert testimony could have altered defense strategy)
- Debord v. State, 152 So. 3d 788 (Fla. 1st DCA 2014) (State’s nondisclosure of experts in sexual offense trial was not harmless)