Anthony Bryant v. State of Florida , 2016 Fla. App. LEXIS 1810 ( 2016 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ANTHONY BRYANT,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D07-4029
[February 10, 2016]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Martin J. Bidwill, Judges; L.T. Case No. 01-16577
CF10C.
Hilliard E. Moldof, Fort Lauderdale, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers,
Assistant Attorney General, West Palm Beach, for appellee.
CONNER, J.
Anthony Bryant appeals his judgment and life sentence after he was
found guilty of first degree murder. He argues the trial court erred in
refusing to exclude DNA evidence linking him to the crime. The results of
the DNA testing were not disclosed to him until after his trial commenced,
despite the fact that the State had the pants from which the DNA was
obtained in its custody for almost six years before trial. Because the trial
court applied the correct remedies to cure the procedural prejudice created
by the late production and disclosure of evidence, we affirm.
Factual Background and Trial Proceedings
On July 16, 2001, officers responded to the home of the Victim in
reference to a report of a dead body. When officers arrived, they found the
Victim had been brutally murdered. The autopsy revealed the Victim died
as a result of blunt force trauma to the head.
The investigators spoke to a friend and co-worker of the Victim, who
had discovered the Victim’s body. The friend stated that he spoke to the
Victim late on Friday, July 13, 2001, but the Victim did not arrive for work
on July 14th or 15th. He also told investigators that the Victim had three
house guests staying with him, two males and a female. The co-worker
did not know anything about the identity of the house guests. The Victim’s
cousin told investigators that her nephew (Bryant), his girlfriend (Cannon),
and another man (Blash), were staying with the Victim while visiting from
Connecticut.
Investigators contacted a detective in Connecticut, and the detective
informed them that they were investigating Bryant, Cannon, and Blash for
a murder in Connecticut, and that they had been in contact with
investigators in New York, where Bryant, Cannon, and Blash were also
being investigated for a separate attempted murder. Investigators
obtained photographs of Bryant, Cannon, and Blash. The Victim’s friend
identified all three as the house guests who were staying with the Victim
just prior to his death. Officials in New York eventually apprehended
Bryant and his co-defendants.
In October 2001, a grand jury returned an indictment charging Bryant,
Cannon, and Blash, with first degree murder and conspiracy to commit
first degree murder. The State gave notice it was seeking the death
penalty.
The specific issue on appeal concerns the admission of DNA evidence
at trial obtained from a pair of pants found in a bedroom in the Victim’s
home. The results of DNA testing by the State revealed that the pair of
pants contained DNA from the Victim, in the form of blood spatter, and
also contained the DNA of Bryant. The problem we address on appeal is
that the DNA testing by the State was not completed until thirteen days
after jury selection began, despite the State having custody of the pants as
evidence for almost six years before the trial began. Bryant asserted a
discovery violation and moved to exclude the DNA evidence. As discussed
more fully below, the DNA evidence was important because both the State
and Bryant argued that the “owner” of the pants was “intimately” involved
in the murder.1
The easiest way to understand the pertinent factual information for our
appellate analysis is to employ a timeline description of events applicable
1 There was non-DNA evidence presented by the State against Bryant, but there
is no assertion by the State on appeal that if the admission of the DNA evidence
was error, the error was harmless. Thus, there is no need to discuss the other
evidence.
2
to the trial court’s decision to deny Bryant’s motion to exclude the DNA
evidence.
Timeline of Dates Pertinent to the Richardson2 Hearing Analysis Regarding
the Cure for Prejudice Caused by Late Disclosure:
July 16, 2001: The victim’s body found at his home.
May 13, 2005: The Broward County Sheriff’s Office (“BCSO”)
lab received the pants.
April 26, 2007: Bryant filed a demand for a speedy trial. Trial
is set to begin on June 14, 2007.
May 15, 2007: Noppinger (State’s DNA expert) received a
request from the State to put a rush on the examination and
analysis of the pants.
Between May 15, 2007 and June 12, 2007: Noppinger worked
on other cases and did not test the pants.
June 12, 2007: Noppinger began to work on the DNA testing
of the pants.
June 13, 2007: State advised Bryant DNA testing is being
conducted and results will be provided to the defense as soon
as they are received.
June 14, 2007: Jury selection began.
June 27, 2007: Noppinger completed the DNA testing and
finished the nine-page report that was given to Bryant on that
date, as well.
June 28, 2007: Bryant deposed Noppinger.
June 29, 2007: Bryant requested a Richardson hearing.
Hearing was continued for additional evidence.
July 3, 2007: Richardson hearing resumed. Bryant submitted
testimony of two local defense attorneys who had similar
issues with receiving late DNA discovery. For its explanation
2 Richardson v. State, 246 So. 2d 771 (Fla. 1971).
3
on the late discovery of the results, the State informed the
court that it met with the lab two years prior, and thought
that the DNA tests were being conducted; however, it later
discovered that the test had not been conducted. The State
agreed that this was a case of negligence, but denied any
willful attempt to thwart the discovery process. The State
argued that it informed Bryant, before trial started, on June
13, 2007, that DNA tests were being conducted, and that the
results would be forthcoming. Bryant acknowledged receiving
this supplemental discovery advising that the results would
be disclosed in the future. The State recommended a recess
or a mistrial as a remedy.
Relying on State v. Trummert, 647 So. 2d 966 (Fla. 4th DCA
1994), the trial court found that there was no discovery
violation; but that if there was a discovery violation, it was not
willful, but was substantial and there was procedural
prejudice to Bryant based on the late disclosure. As to what
the remedy would be to cure the prejudice, the trial court
denied Bryant’s request to exclude the evidence as too
extreme, but stated that, at the least, a recess would be
granted in order for Bryant to have time “to do whatever it is
they [the defense experts] think they need to do.”
The trial court asked Bryant if he wanted a mistrial. Bryant
responded that he was “impressed” with the jury panel and
“believe[d]” in that panel, and so did not accept or request a
mistrial at that time.
The trial court recessed the Richardson hearing, while the trial
was ongoing, for Bryant to contact his expert witness to
provide further information regarding when and where to send
the pants for DNA analysis by the defense.
July 6, 2007: Status hearing was held, while the trial was
ongoing, where the State informed the trial court that the
samples from the pants were packaged and ready to be
shipped to the lab of Bryant’s choosing. The trial court again
asked Bryant if he was requesting a mistrial, and he again
stated that he was not, at that time.
July 13, 2007: Status hearing was held, while the trial was
ongoing, where the trial court stated that there were several
of the jurors that had upcoming conflicts in scheduling, and
4
therefore, recessed the trial until August 7, 2007. The trial
court asked Bryant if he was requesting a mistrial, and Bryant
stated that he wished to speak to his family about it first, and
therefore, he would later inform the trial court of his decision
regarding whether he was requesting a mistrial.
July 17, 2007 (morning session): In a status conference during
the trial recess which included a J.A.C.3 representative (via
telephone in open court), in an effort to determine whether the
J.A.C. would cover the cost of Bryant testing the pants, the
trial court addressed the fact that Bryant now wished to send
the pants to the California lab (instead of just having the lab
test samples of the pants similar to the samples previously
tested by the State). The trial court suggested that the pants
be sent with a deputy to watch over them, and Bryant agreed
with that solution.
July 17, 2007 (afternoon session)4: At the beginning of the
status conference, the State indicated that it contacted the
Sheriff’s Office and made arrangements for a deputy to escort
the pants to California, and hoped that the pants would arrive
at the California lab the following Monday. Additionally, the
court conducted a phone conference with Keel, one of Bryant’s
DNA experts. During the discussion, it was established that
the defense lab would not consent to the deputy being present
while the testing was conducted. It was decided that a deputy
would deliver the pants to the lab and wait until the testing
was finished in order to promptly return the pants to Florida.
With regards to the possibility that additional testing would
be needed, the following discussion occurred:
THE COURT: You know, that’s just the way it is.
And if something happens and we have to revisit
it, we have to revisit it. I mean, I don’t know what
3 The J.A.C., or Justice Administrative Commission, “provide[s] compliance and
financial review of billings for services provided by private court-appointed
attorneys representing indigent clients and associated due process vendors.”
Justice Administrative Commission, https://www.justiceadmin.org/home.aspx
(last visited Dec. 30, 2015).
4 This is the portion of the record that Bryant continuously referenced, at oral
argument, as containing his request for more than a day for the pants to be sent
to California.
5
to tell you on that. I mean, I don’t think -- I think
everyone is trying to come to a happy medium
here that’s allowing the defense to do what they
need to do and allowing the state to maintain the
integrity of the evidence and the custody of an
officer of the Sheriff’s Office and, you know, as I
said, Mr. Ke[e]l or Dr. Ke[e]l -- I don’t know his
education.
[DEFENSE COUNSEL]: He is not a doctor. He is
a criminologist.
THE COURT: I don’t know if he needs to come
back and convince me that that needs to happen,
that I can order it. I don’t see any other way to do
it other than him coming here, which would be
probably prohibitively expensive and create lab
issues, so I don’t see any other way to do this.
[STATE]: Well, knowing based on what Mr. Ke[e]l
said, I would encourage him to take as many
samples –
THE COURT: I would to [sic]. Because I will tell
you, we are getting to the point that given the five
weeks -- you work it out with him, however you
want to do it.
[DEFENSE COUNSEL]: Judge, I’m willing –
THE COURT: You have been open and everyone
has and that is obvious to me. But he needs to
do whatever he can with it to maximize the
chances that he does not need it back.
(emphasis added). Bryant made no request for a further
continuance of the trial at this status conference.
August 6, 2007: The parties reconvened for a status
conference on the last day of the trial recess period. The
parties informed the trial court that the pants left the BCSO
lab on July 20, 2007, escorted by a deputy, arrived in
California on July 24, 2007, and the deputy picked up the
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pants from the California lab the next day, July 25, 2007.
During the status conference, a telephone call was made by
the court to Keel and Blake (another DNA expert from the
same lab). Blake mentioned that he needed more time with
the pants, or the DNA profiles of other individuals, or both.
Bryant’s counsel did not follow Blake’s comment with a motion
or request for a continuance to conduct further testing.
Instead, Bryant’s attorney actually made several express
assertions that he did not have any issues with the procedure,
and was ready to continue to trial.
When the trial resumed, Noppinger testified for the State about DNA
evidence. He testified that he had collected known samples from Bryant,
Blash, and the Victim, and determined that the blood stains on the pants
belonged to the Victim. He also testified regarding a more controversial
“yellowish” stain in the area in the “inside front portion on the right side
[of the pants] next to the zipper location of the pants.” Although he
conducted a test to determine if the stain was semen, the test came back
negative. He could not identify the substance of the stain after conducting
further tests. Noppinger stated that the stain yielded a partial profile, from
which Bryant could not be excluded.
In order to determine the “owner”5 of the pants, Noppinger took a Q-tip
swab from the waistband of the pants, but stated that he did not find any
useable evidence from that area. He also stated that he did not conduct
an alternate light source test on the pants, where a light would be used to
detect substances that may be present but unable to be seen with the
naked eye.
Bryant called Keel as his DNA expert witness. Keel testified that he was
originally sent two known DNA samples from Bryant and the Victim, and
two pieces of the pants cut by BCSO. So, he first did a presumptive test
on the yellow-stained area, and the test yielded a negative result for semen,
and a small amount positive for blood. When testing the stain for DNA, he
found two contributors: one, Bryant, was the major contributor, and then
there was a second, unknown (not Blash) contributor. However, since Keel
5 Noppinger also explained what it meant that he was looking for the “owner” of
the pants by testing the waistband of the pants: he was looking “in places that
if somebody was wearing this particular item of clothing we can find the DNA.”
Although the significance of this was not made immediately apparent, since
Noppinger found only Bryant’s DNA on the pants, based on Bryant’s analysis of
the pants, and finding multiple DNA sources on the pants, this idea of
“ownership” of the pants became important.
7
wanted to conduct further tests, and since the BCSO only sent him
cuttings from the pants, he requested that BCSO send him the pants in
the entirety.
Keel testified that, when he received the pants, he also tested multiple
other areas on them, and found multiple areas on the pants where Bryant
was a major contributor, but there were two or more unknown
contributors to the sample. Keel testified to the significance of these
findings, particularly the fact that there were multiple DNA-contributors
found on the pants. Keel stated that “most of the time” when an attempt
is made to find the “owner” of a pair of pants, there is only one contributor.
Keel stated that he could not tell who was wearing the pants at the time
that the Victim was murdered, based on the DNA results, and just because
Bryant was found to be the major contributor of DNA on the pants, did not
necessarily mean that he was the person wearing them at the time of the
murder.
At the end of the trial, the jury found Bryant guilty of first-degree
murder. The jury recommended a life sentence, which the trial court
imposed. Bryant gave notice of his appeal.
Appellate Analysis
The sole issue on appeal is whether the trial court erred in failing to
exclude the DNA results after the Richardson hearing. “[A] trial court’s
decision on a Richardson hearing is subject to reversal only upon a
showing of abuse of discretion.” Rimmer v. State, 59 So. 3d 763, 787 (Fla.
2010) (citing Conde v. State, 860 So. 2d 930, 958 (Fla. 2003)).
The trial court was correct that the facts of the instant case are similar
to the facts in Trummert. 647 So. 2d at 967. In Trummert, the State
appealed a trial court’s order excluding DNA evidence that was disclosed
just prior to trial. Id. After ordering the State to produce the results of a
DNA analysis on two separate occasions, just before the deadline of the
second order to produce, the State requested a continuance, and for
samples to be taken of Trummert’s blood, since it learned that the previous
prosecutor on the case had not requested the DNA testing. Id. Soon after,
on March 31, 1994, the State requested a two-month continuance to
complete the DNA testing and to depose a defense witness. Id. The trial
court granted the State’s request, over the defense’s objection. Id.
On April 7, 1994, Trummert filed a demand for speedy trial, and at the
calendar call, the State provided Trummert with the new evidence of the
DNA analysis, in addition to a new witness who would testify about the
8
evidence. Id. Trummert moved to exclude the results of the DNA testing,
as well as the witness, “argu[ing] that the state’s late production put her
in the position of either giving up her right to a speedy trial, or proceeding
with further discovery on the evidence just handed to her.” Id. The trial
court granted Trummert’s motion, excluding the DNA analysis and
witness. Id.
On appeal, the State argued:
The state concedes that providing DNA analysis results to the
defense four days before the running of the speedy trial period
prejudiced the defense in that it would have been difficult for
the defense to prepare for trial. The state also does not
dispute that the defense was entitled to a “just remedial
order.” However, the state maintains that the Richardson
doctrine does not apply as there was no discovery violation
because it presented the report to the defense as soon as it
was available and that exclusion was too harsh a sanction.
The state suggests that a short court continuance was the
proper remedy.
Id. at 967-68. While reversing the trial court’s order excluding the DNA
evidence and the witness, we explained:
As in [State v.] Hutley, [474 So. 2d 233 (Fla. 4th DCA 1985),]
the short additional continuance required to complete DNA
testing, documentation, and disclosure to appellee would not
impinge on the defendant’s constitutional right to a speedy
trial.
What we have is the state’s negligent failure to proceed with
DNA testing at an earlier time. This is not a discovery violation.
While some type of sanction may be appropriate for the
prosecution’s shortcomings, the interests of the citizens of the
State of Florida should not be jeopardized by imposing the
extreme sanction of exclusion of what may well be crucial
evidence, particularly where the only prejudice to the accused
is a slight additional delay. Nor do we think the speedy trial
rules are to be used to curtail essential trial preparation or to
exclude evidence produced by that preparation in the absence
of a serious discovery violation. Under such circumstances
the state should have been granted a continuance for a
reasonable time.
9
Id. at 968 (emphasis added). Therefore, under facts similar to the instant
case, we held that the delayed production and disclosure of DNA evidence
was not a discovery violation.
However, Bryant argues that Trummert is not controlling because the
facts are different from the instant case. Notably, in Trummert, the
evidence was disclosed to the defense prior to trial, albeit very close to the
trial date, whereas in the instant case, the evidence was disclosed to
Bryant during the trial. This distinction, however, does not change the
analysis. Although the disclosure in the instant case of the actual results
was later in the process, the same issues are present in regards to whether
the late discovery was a violation. The State disclosed the DNA results to
Bryant as soon as it had them, and also kept Bryant updated as to the fact
that the DNA testing was being conducted and it would soon have the
results. Therefore, Bryant was at least aware that the results would be
forthcoming, although he may not have been aware of exactly what those
results would reveal.
While the exclusion of evidence is a permissible tool in a trial court’s
remedial cure arsenal, the trial court correctly determined that “this
sanction should only be imposed when there is no other adequate remedy.”
McDuffie v. State, 970 So. 2d 312, 321 (Fla. 2007). Although the State
agreed that Bryant was procedurally prejudiced by its late disclosure of
evidence, the trial court’s remedy of allowing a long recess in order for
Bryant to conduct testing cured this prejudice.
Bryant makes two arguments to demonstrate procedural prejudice: (1)
he looked like a “liar” in his opening statement since he insinuated that
there was no DNA linking him to the murder, and (2) his inability to
prepare fully for the trial since the DNA evidence was not provided to him
until the trial was almost half over. We reject both arguments. Since both
claims of prejudice were cured by the remedy granted by the trial court,
the trial court properly declined the motion to exclude the DNA test results.
Regarding Bryant’s first argument that the jury would think that he
was untruthful or somehow negligent in implying that there would be no
DNA evidence in the case to link Bryant with the Victim’s murder, the
record shows that the trial court allowed both parties to give a second
opening statement after the five-week long trial recess. The remedy
allowed both sides to take into account the new evidence from both
experts. Although the trial court would not allow Bryant to tell the jury
that the delay in the new evidence was due to the negligence of the State
or the investigators, Bryant was able to explain why his former implication,
that there was no DNA evidence, was no longer true. Thus, in opening
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statements, the jury was informed about the new DNA evidence and
Bryant was able to avoid the appearance that he was lying,
misrepresenting the facts, or overlooking an important piece of evidence.
Regarding Bryant’s second argument that he was unable to fully
prepare for trial with the disclosure of new DNA evidence, not only did the
trial court allow Bryant to take depositions of the State’s DNA expert
during the trial, but the trial court actually recessed for five weeks, to allow
Bryant to conduct multiple tests on the pants. At first, the State sent
Bryant’s DNA experts only two pieces of the pants. However, after testing
those pieces and requesting the entirety of the pants, Bryant’s experts also
had the opportunity to test multiple portions of the pants and to make an
independent conclusion after this access to the pants. The five-week
continuance, coupled with the opportunity for further testing,
demonstrates the trial court adequately addressed the claims of prejudice
due to insufficient time to prepare to defend against the State’s new DNA
evidence.
On appeal, Bryant contends that the trial court should have allowed
his experts more time to conduct further testing on the pants. However,
in viewing the record, and specifically the areas to which Bryant has
directed us on appeal, in his brief and during oral argument, we find
nothing to show such a request was made to the trial court for an
additional continuance for more testing. Although there is a portion of the
transcript of one of the status conferences where Blake stated that “the
story that these pants have to tell cannot be fully told without that
information [from additional testing],” there was never a specific request
for an additional continuance made by Bryant to the trial court.
Additionally, prior to the testing of the pants, Keel stated that he wanted
the detective to bring the pants to his lab, drop them off, then come and
pick them up once he was finished. Although the State did not agree to
leave the pants at the lab, the trial court specifically stated that “if [Keel]
needs to come back and convince me that that needs to happen, [then] I
can order it.” The trial court did not state that the “it” in this situation
was more time to analyze the pants; however, from the context of the
discussion (“he needs to do whatever he can with it to maximize the
chances that he does not need it back”), we are satisfied that the trial court
certainly left the possibility open that it may need to order that Keel be
allowed more time with the pants. But, given the fact that the record is
devoid of any statement by Bryant, specifically requesting that Keel be
granted more time with the pants, the trial court’s offer to reconsider the
issue was never raised.
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The trial court also offered multiple times to grant a mistrial. We are
satisfied the offer was made to address any defense concerns that
additional DNA testing was needed. In response, Bryant repeated multiple
times that he did not want a mistrial, and that he wanted to keep the jury
panel he had because he was “impressed” by the panel. The defense may
have had strategic reasons for not specifically requesting any further
continuance.6 Thus, the remedy employed by the trial court allowed
Bryant to have his proverbial cake and eat it too; not only was he granted
an extended period of time to conduct tests on the pants, but he was also
able to keep the jury panel that he was so desirous of maintaining.
We conclude that the extreme sanction of exclusion of evidence was not
warranted in this case. Moreover, the remedy fashioned by the trial court
cured any procedural prejudice to Bryant resulting from the newly-
furnished DNA results. The remedy of a recess was not only appropriate
given the specific facts of the instant case, but it has also been recognized
as a generally fitting remedy for situations involving late disclosure of
newly-discovered evidence. See Livigni v. State, 725 So. 2d 1150, 1151
(Fla. 2d DCA 1998) (“[O]ften a very brief recess, during which the parties
work cooperatively to address the situation, provides sufficient preparation
for the newly discovered evidence. However, where there is no willful
discovery violation, the court should not consider sanctions. Here, the
trial court erred by imposing the sanction of exclusion because there was
no showing of a discovery violation.”) (internal citation and quotation
marks omitted); Hernandez v. State, 572 So. 2d 969, 971 (Fla. 3d DCA
1990) (“[P]rejudice may be averted through the simple expedient of a recess
to permit the questioning or deposition of witnesses. . . . Thus, it is an
abuse of discretion for a trial judge to invok[e] the severe sanction of
prohibiting the defense from calling . . . witnesses instead of granting a
recess and allowing the prosecutor to interview the witnesses and satisfy
himself as to whether the prosecution would be prejudiced by the
witnesses being allowed to testify.” (internal citation and quotation marks
omitted) (quoting S.G. v. State, 518 So. 2d 964, 966 (Fla. 3d DCA 1988))).
It was also a remedy mentioned by this court in Trummert, faced with a
very similar set of facts. 647 So. 2d at 968 (“Under such circumstances
the state should have been granted a continuance for a reasonable
time.”).[7
6There is the distinct possibility that “the story that these pants have to tell”
would be more harmful than helpful to the defense.
7Bryant also argued on appeal that a continuance or mistrial would have forced
him to abandon his right to a speedy trial. However, this argument was also
addressed, and rejected, in Trummert. 647 So. 2d at 968 (“Nor do we think the
12
Even though we are affirming the trial court in this case, it is important
to address what appears to be a recurring problem that was brought to
light by this case: the repeated tardiness by the Broward County Sheriff’s
Office lab in producing DNA testing results to those charged with criminal
offenses.
As stated above, the facts of this case are similar to the facts in
Trummert. However, there is one important additional fact in the instant
case that apparently was not present in Trummert: a demonstrated pattern
of late disclosures of DNA test results, as testified to by other defense
attorneys involved in other cases. It is important to note that in Trummert,
we stated that the situation “we have is the state’s negligent failure to
proceed with DNA testing at an earlier time. This is not a discovery
violation.” Id. at 968 (emphasis added). The record in Trummert did not
disclose a pattern of late disclosures.
Although the negligent failure to conduct timely DNA testing may have
saved the State from a finding that there was a discovery violation in this
case, similar to Trummert, the facts of the instant case come dangerously
close to shifting the State’s actions from negligent to willful. Although the
State did not deliberately fail to get the DNA on the pants tested sooner,
based on the testimony at the Richardson hearing by other defense
counsel, it seems that this is not the first time that the Broward County
Sheriff’s Office lab has been late with DNA testing and furnishing the
results. The fact that the State is aware, or at the least, should be aware,
that this problem is on-going, puts it on notice that there is an issue. A
“willful” act denotes an intentional act. See BLACK’S LAW DICTIONARY (10th
ed. 2014). Although the late testing of the pants was not intentional, the
fact that the State is now well aware of the tardy testing issues with the
lab, it should not be able to ignore known deficiencies in the future.
The failure of the State, or its agents, to address known deficiencies
regarding tardy or late DNA testing leads to recurring prejudicial results
affecting a multitude of cases. Just as the State would argue that willful
blindness is not a valid defense to many crimes, the same principles apply
to its ignoring the obvious deficiencies with obtaining DNA test results.
Therefore, although the facts of this case do not require reversing
Bryant’s conviction based on the State’s actions, in future cases it may be
speedy trial rules are to be used to curtail essential trial preparation or to exclude
evidence produced by that preparation in the absence of a serious discovery
violation.”).
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appropriate for the trial court to take the State’s, or its agent’s, pattern of
tardy or late disclosures into consideration when determining whether
there has been a discovery violation and what remedy to fashion, if in fact
the trial court is satisfied, based on the evidence, that there is such a
pattern of tardy or late disclosures. Because until the State is held
responsible for the repercussions of its actions, the problem of tardy or
late disclosure of DNA evidence will continue to the detriment of due
process.
Affirmed.
WARNER and GROSS, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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