Lowery v. StateLowery v. State
Robert A. Butterworth, Atty. Gen., Sara D. Baggett, Asst. Public Defender, Tallahassee, for appellee.
ERVIN, Judge.
The sole issue raised by appellant, Russell Howard Lowery, is whether the trial court erred in allowing the state to introduce as rebuttal evidence a check which the state had failеd to disclose during discovery. We conclude that the check‘s admission was error, and we therefore reverse the conviction and remаnd the case for new trial.
At appellant‘s trial for theft of an automobile, the state submitted evidence showing that Steven Friddell owned the truck аllegedly stolen, and that he had arranged to have it towed to a shop for repairs. When Friddell attempted to obtain the truck from the shop some two or three weeks later, he discovered that the truck was at appellant‘s house. Although title to the truck was registered in apрellant‘s name, both Friddell and his girlfriend, Debbie Tinker, denied giving the title to him.
The defense presented evidence through various witnesses disclosing that Friddell had offered the title to appellant as security for a drug debt, and that Tinker had given the title to him. Appellant explained that he occasiоnally delivered marijuana to Friddell and Tinker to sell, but as they often failed to pay him the full amount owed therefor, he began running a debt for them. He еventually cut off their supply due to nonpayment, and Tinker offered him the title to the truck as collateral for the debt. It was his understanding that the truck wаs his if they defaulted, and when they did not pay, he obtained the truck and transferred the title to his name.
During appellant‘s cross-examination, the statе sought to have a $300 check signed by appellant marked as State‘s Exhibit No. 1 for identification. Defense counsel objected and requested a Richardson1 hearing on the grounds that this was the first time he had seen the check and that it was not listed on the state‘s discovery response. During the hearing cоnducted outside the jury‘s presence, the state explained that it had received the check from Tinker two days before the trial, but that it had not intended to use the check as evidence against appellant, and that its failure to disclose it was not intentional. The defense then сonducted voir dire of Ms. Tinker,
As the alleged theft occurred within three weeks of the date appellant reportedly had given the $300 check to Tinker, the defense argued that the discovery violation prejudiced its ability to proceed. In response, the prosecutor announced her withdrawal of any testimоny concerning the check at that time, reserving, however, her right to use it during her case in rebuttal, “in which case I‘m not required to provide it prior tо.” Defense counsel replied that the discovery rules apply to rebuttal. Nevertheless, the court ruled as follows:
All right. Well, for purposes оf use at this point in time I‘m going to find that there was, in fact, a discovery violation, that it was inadvertent, that the violation was substantial, and it does, in fact, affect the defendant‘s ability to proceed. Now, that‘s not to comment on whether or not you can use this in your rebuttal case. That simply is intendеd to address the Richardson hearing and what‘s been provided as far as discovery at this point in time.
The state subsequently called Debbie Tinker in rebuttal and was аllowed to admit the check into evidence. Later, during closing statements, the prosecutor argued that the check was evidence showing that there had been no drug dealing and that Friddell and Tinker did not owe appellant any money. The jury found appellant guilty; hence, this appeal.
If, during the course of the proceedings, it is brought to the attention of the trial court that the state has failed to comply with
The state apparently has abandoned the positiоn which it urged during trial — that the check was admissible as rebuttal evidence — and now argues that appellant failed to preserve the assertеd violation because, once the state sought to introduce the evidence during rebuttal, the defense made no objection in regard to the discovery rule violation and therefore waived the error for purpose of appeal. In support of its position, the state relies on Lucas v. State, 376 So. 2d 1149 (Fla. 1979), and Taylor v. State, 589 So. 2d 918 (Fla. 4th DCA 1991), both of which found waiver where the defense failed to object at the time an undisclosed witness was called to testify.
We find these сases distinguishable in that the defense counsel in the instant case clearly brought the discovery violation to the court‘s attention immediately uрon notice of same and requested a Richardson hearing. Consequently, the trial judge was then required to conduct the hearing, rule on whether a violatiоn occurred, and determine whether the evidence was admissible.
The trial judge here did conduct a Richardson hearing when the discovery violation was brought to his attention and concluded that a violation had occurred that substantially prejudiced the defense. The effect of the court‘s ruling was that the check was then inadmissible. Because there is nо exception to the disclosure rule for impeachment or rebuttal evidence, we conclude that the trial court abused its discretion by later ruling the check admissible as rebuttal evidence, notwithstanding the lack of a specific objection during rebuttal. As the state failed to satisfy its burden of showing that the error was harmless, in that it made no such argument on appeal, see Ciccarelli v. State, 531 So. 2d 129 (Fla. 1988); Lee v. State, 508 So. 2d 1300 (Fla. 1st DCA 1987), approved, 531 So. 2d 133 (Fla. 1988), we reverse appellant‘s conviction and remand the case for new trial.
REVERSED and REMANDED for new trial.
ZEHMER and BARFIELD, JJ., concur.