After a jury trial, Garfield Jones was convicted of attempted first degree murder and armed robbery of Alex Gomez. He makes four arguments on appeal: (1) the trial court failed to conduct an adequate Richardson 1 hearing; (2) the trial court abused its discretion in denying the defendant’s motion for continuance; (3) the trial court abused its discretion in permitting the state to impeach the defendant’s statement with his prior convictions; and (4) the trial court erred in admitting into evidence a gun cleaning kit. Because we conclude that the trial court failed to conduct an adequate inquiry into a potential discovery violation and abused its discretion in denying the defendant’s motion for continuance, we reverse and remand for a new trial.
At trial, Deputy Scott Popick testified that he responded to the scene minutes after the victim, Alex Gomez, was shot. He found Gomez lying in the doorway of an apartment, bleeding, screaming, and crying. Initially, Gomez told police that a friend, Nikko (Nnanniko Lightbourne), telephoned him and soon thereafter met him outside his apartment building. He said that Nikko was accompanied by a Hispanic male named Javier, who started shooting at him before taking $50 from him.
At the hospital, approximately an hour later, Gomez gave a different account of the incident. He said that Nikko met him outside, along with a Jamaican male, and that Nikko shot him. About a half hour later, when Detective Kogan arrived at the hospital, Gomez told yet another version of the incident. This time he said that he and Nikko got into a physical altercation, during which Nikko put him in a bear hug. Then another person, a black male, came over and tried to hit him over the head with a handgun. When Gomez started to run away, he was shot in the back.
Dwayne Lawrence testified that on the day of the shooting Nikko Lightbourne came to Lawrence’s apartment with a black man (Defendant), who Lightbourne introduced as “Spawn.” The three of them went to Gomez’s to buy marijuana. Lawrence stayed in the car. The other two were gone about ten minutes. During that time, Lawrence heard two or three gunshots. When Lightbourne and Spawn returned, they got in the car and drove off. As Spawn was driving, he took a gun out of his pocket and put it in his lap. Lightb-ourne told Spawn, “you shouldn’t have shot him.” Spawn responded, “he run, that’s why I did it.” He added, “I think he is dead.”
Before the victim, Alex Gomez, was called to testify, the court took a short
Defense counsel objected to admission of evidence of the defendant’s threats due to its late disclosure. She complained that she could not effectively cross-examine Gomez about this testimony without an opportunity to investigate the alleged threats. She said that she believed the prosecutor’s representation that he had just learned about the incident, but that permitting this evidence in the middle of trial would make this a “trial by ambush.” She explained to the court:
It puts a lot of work in the middle of trial. I now have to go find witnesses and view the cell. I have to have a recess. I have to go interview people at BSO. I have to see the holding cell. I have to do all this in order to be able to cross-examine this guy when he had from July 23rd to August 2nd to tell [the prosecutor] about this statement.
How is that fair? I have to put everything on hold now because of that. When this could have been said, if indeed it happened. I have to now find subpoenas for Terry Lynch. I have to go find out who the deputies were that were [there], I have to go see the room. I have to find out who the people were in the holding room to see if they saw anything. Otherwise, I’m blindly cross-examining.
Defense counsel argued that evidence of the defendant’s threats to the victim would be highly prejudicial and, thus, should be excluded. She further requested a recess to investigate the incident. The trial court refused to recess the trial and admitted the evidence.
Alex Gomez testified that on the night of the shooting, he received a telephone call for a half ounce of marijuana. Because the voice sounded familiar, Gomez agreed to meet the person downstairs at his building. While waiting outside his apartment, Gomez saw two men dressed in black approach him. He recognized one of the men as his neighbor’s cousin, Nikko. While Gomez was talking to Nikko, the defendant approached and pointed a gun at Gomez’s stomach. Nikko searched Gomez and took all his money and marijuana. Nikko told the defendant to kill Gomez because he knew too much. The defendant told Nikko to hold Gomez while he shot him. He then told Nikko to release him. As soon as Nikko did so, Gomez ran and the defendant started shooting at his back. The defendant shot Gomez three times — in the back of his arm, middle of his back, and upper buttocks. Gomez
Near the end of his direct examination, Gomez testified about his contact with the defendant at the jail holding cell. He said that the defendant told him that he was lucky to be alive because he should have killed him. The defendant also made his hand into the shape of a gun and said, “Don’t forget I know where your mother lives.” Then “his face went from being real mean to just smiling,” and he offered to pay Gomez. On re-cross examination, Gomez testified that he reported the defendant’s threat to a jail deputy, but the deputy did nothing.
Nikko testified that he knew the defendant, Garfield Jones, who also went by the name “Spawn.” On the day in question, Lawrence called Nikko because Lawrence wanted to rob Gomez, who Lawrence believed had $10,000 on him. Nikko agreed. When Lawrence showed up at Nikko’s apartment, they began looking for someone with a gun to assist with the robbery. After a few unsuccessful calls, they went to the defendant’s apartment and discussed plans for the robbery. The defendant agreed to get his gun and participate. Nikko testified that the defendant shot Gomez three times in the back.
Officer Anthony Delpozzo testified concerning the consent search he conducted of the apartment that the defendant shared with his girlfriend, Melissa Martin. He did not find a gun or ammunition, but he found a gun cleaning kit in a hall closet. The kit was generic and could be used to clean any type of gun. The state introduced the gun cleaning kit into evidence at trial and mentioned it during closing argument, suggesting that the defendant had a gun.
The defendant was found guilty and sentenced to life imprisonment on each count, to run concurrently.
The Richardson Hearing
The prosecutor has a duty to disclose in discovery “any written or recorded statements and the substance of any oral statements made by the defendant.” Fla. R.Crim. P. 3.220(b)(1)(C). This duty “extends to a defendant’s statements made to a witness who is not an agent of the state.”
Landry v. State,
In this case, the defendant’s alleged threat against the victim was an “oral statement made by the defendant,” but it was not disclosed until the middle of trial. The defendant argues that the trial court failed to conduct a hearing pursuant to
Richardson v. State,
“There are no exact ‘magic words’ or phrases which must be used by the defense in order to necessitate the inquiry; only the fact that a discovery request has not been met.”
Smith v. State,
Unlike the defendant in
Major,
who failed to lodge any objection whatsoever to the changed opinion of a medical examiner,
see
Defendant contends that the trial court did not determine
whether
there was a discovery violation and, consequently, it did not conduct an adequate inquiry into three other required areas: “(1) whether the discovery violation was willful or inadvertent; (2) whether it was trivial or substantial; and (3) whether it had a prejudicial effect on the opposing party’s trial preparation.”
McDuffie v. State,
The defendant argues that he was procedurally prejudiced by the trial court’s failure to hold an adequate
Richardson
hearing. He contends that a timely disclosure of the alleged threats would have allowed his attorney to investigate the incident and search for evidence to refute it or at least cast doubt on the victim’s testimony regarding the incident. In addition, he could have called into question the victim’s credibility as a whole. We agree that the defendant has demonstrated procedural prejudice that precludes us from deeming the error harmless.
See Scipio v. State,
Motion for Continuance
The denial of a motion for continuance is committed to the sound discretion of the trial judge.
Hernandez-Alberto v. State,
The state argues that because the court session ended at 5:00 p.m. on the day the victim testified, defense counsel could have conducted her investigation that evening before cross-examining the victim the next morning. The defense counters by citing to our recent decision in
Pickel v. State,
The defendant also relies on
Boland v. State,
Similarly, in this case, had the defendant been granted a recess to investigate Gomez’s claim that the defendant threatened him in jail, the investigation might have produced evidence to cast doubt on this claim, as well as on his overall veracity. Among other things, defense counsel could have investigated Gomez’s statement that he reported the threat to a jail deputy. We conclude that the denial of the motion for a recess to allow counsel sufficient time to investigate the matter was an abuse of discretion warranting a new trial.
The Gun Cleaning Kit
Because we are reversing and remanding this case for a new trial, we comment briefly on an issue raised by defendant that could recur. At the commencement of trial, the defendant moved in limine to exclude the gun cleaning kit seized from the defendant’s home on the ground that it was irrelevant and that any probative value of this evidence was outweighed by its prejudicial effect. We conclude that the trial court erred in denying the motion and admitting the gun cleaning kit into evidence.
“Relevant evidence is evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat. (2008). “The trial court has broad discretion in determining the relevance of evidence and such determination will not be disturbed absent an abuse of discretion.”
Heath v. State,
“Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” § 90.403, Fla. Stat. (2008). “The weighing of relevance versus prejudice or confusion is best performed by the trial judge who is present and best able to compare the two.”
Sims v. Brown,
“[W]here the evidence at trial does not link a weapon seized to the crime charged, the weapon is inadmissible.”
O’Connor v. State,
Similarly, in this case, there was nothing unlawful about the defendant’s ownership of a gun cleaning kit and nothing was shown to connect it to the crimes charged. Its admission served only to suggest that at some point the defendant owned a gun.
Finally, because we are reversing and remanding this case for a new trial, we need not comment on the defendant’s argument that the trial court erred in permitting the state to impeach his exculpatory statement with his felony convictions.
Reversed, and Remanded for a new trial.