Gosman v. StateGosman v. State
This аppeal from a conviction and sentence for armed robbery involves an applicаtion of some form of the “Brady evidence” rule. Simply stated, the rule enunciated in Brady v. State of Maryland,
Florida has codified these requirements, to some extent, in Rule 3.220(a)(2), Florida Rules of Criminal Procedure, which provides:
(a)(2) As soon as practicable after the filing of the indictment or informatiоn the prosecutor shall disclose to the defense counsel any material information within the State’s possession or control which tends to negate the guilt of the accused as to the offense charged.
Appellant seeks reversal of an order denying his motion for new trial on the grounds that because of a violation of the Brady rule he was denied his right to a fair trial as guaranteed by the Sixth and Fourteenth Amеndments to the United States Constitution.
Following an armed robbery, of which appellant was accused, the storeowner victim and one of his employees were shown a photographic line-up which included a picture of appellant. Neither witness was able to make an identification. Subsequently both witnesses did identify appellant in a live or corporeal line-up. Another employee was unаble to identify appellant and identified another individual as the one he had seen in the store on the day of (but not at the time of) the robbery. Appellant and his mother testified that they were together at the time the robbery took place. Appellant filed a demand for discovery which contained thе general request for “. any material information within the state’s possession or control which tends to nеgate the guilt of the accused as to the offense charged.” The State’s answer to demand •listed line-up photographs which had been taken of the corporeal lineup. Those from the photographic lineup were not disclosed and, in fact, were not preserved for trial or for any оther purpose.
Approximately one month prior to trial appellant took the depоsition of the victim and learned of the photographic line-up. The record does not disclosе any activity on the part of appellant to obtain a disclosure of evidence conсerning that line-up. A few days before the trial he asked one of tne police officers who had conducted the investigation whether there was anything else about the case not shown by the police reports that he should know. The response to this general question was to the effect that the reрorts covered everything. Later, after the jury had retired to consider its verdict, that officer apрarently recalled, and therefore advised appellant, that the photographic line-up had included a photograph of appellant.
Prior to this and during the trial, the prosecutor, in response to appellant’s question as to whether or not appellant’s photograph had bеen included in the line-up, indicated that there had been open file discovery and that he had no knowledge of or about a photographic line-up. There is no evidence or even an indication that the prosecutor did have such knowledge.
On these facts, appellant seeks reversаl because of the purported Brady violation. We find no violation sufficient to support reversal аnd affirm.
At no time prior to trial was a specific demand made for evidence connected with the photographic line-up. The effect of failure to produce that evidence must therefore be tested under the Agurs variation of
Appellant’s failure to take positive action after learning of the photographiс line-up may constitute a waiver of his right to now object to the State’s failure to come forward with that evidence but such a determination is not essential to the result we have reached for the other reasons given.
AFFIRMED.'