Daniel Scott v. State

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
DANIEL SCOTT,
Appellant,
v. Case No. 5D16-3843
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed November 17, 2017
Appeal from the Circuit Court
for Orange County,
Thomas W. Turner, Judge.
James S. Purdy, Public Defender, and Noel
A. Pelella, Assistant Public Defender,
Daytona Beach, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Samuel Perrone,
Assistant Attorney General, Daytona
Beach, for Appellee.
LAMBERT, J.
Daniel Scott appeals his convictions after trial for robbery with a firearm, fleeing or
attempting to elude a law enforcement officer at high speed or with wanton disregard, and
resisting an officer without violence. Scott raises three issues on appeal. We affirm
without further discussion the second and third issues raised by Scott concerning whether
fundamental error was committed by the trial court’s minor addition to a standard jury
instruction and his claim of cumulative error. As to Scott’s first issue, we conclude that
the trial court did not err in denying Scott’s motion for mistrial based on the State’s alleged
discovery violation in failing to disclose to the defense its fingerprint expert’s oral
statement revealed during rebuttal because, first, there was no discovery violation, and
second, even if the State’s failure to disclose was a discovery violation, the record
establishes that the violation was harmless. Accordingly, we affirm.
Background
Two employees at an AT&T store in Orlando, Florida, observed a black Kia Forte
automobile twice come into the parking lot in front of the store and then leave. When the
car appeared a third time, two men wearing black wigs, hats, sunglasses, and gloves
exited the car and came into the store. One of the men was carrying a gun, and the two
ordered the employees into a back room of the store and forced them to lay on their
stomachs. The assailants then took cellphones, tablets, and over $2000 in cash from the
store and fled. One of the employees immediately called 9-1-1 and described the
getaway car. Soon thereafter, law enforcement engaged in a high speed pursuit of the
vehicle before immobilizing it. The two suspects in the car fled in different directions but
were quickly apprehended. These two men, Daniel Scott and Jajuan Bryant, were
identified shortly thereafter by the AT&T employees, who also separately identified the
vehicle, gun, wigs, and sunglasses used in the robbery. Additionally, the law enforcement
officers who chased the two men after they fled in their car identified Scott as the driver
of the getaway car and Bryant as the passenger. The items stolen from the AT&T store
were found by the officers in trash bags located in the car.
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A total of 123 latent fingerprints were obtained from the crime scene, car, and items
found inside the car and were provided to the State’s fingerprint analyst, Marco Palacio,
to compare against Scott and Bryant’s known fingerprints. In his written report, Palacio
confirmed that Scott’s fingerprints matched five of the prints taken from the sunglasses
and the trash bags and that eleven of the other 123 latent prints matched Bryant’s known
fingerprints. Pertinent to this appeal, seventy-seven of these latent prints were not
matched to anybody related to the investigation.
The trial in the case began on Monday, September 12, 2016. Well before trial,
Scott’s co-defendant, Bryant, pleaded guilty to the same charges filed against Scott and
was sentenced to prison. Scott listed Bryant as a potential trial witness, and on
September 8, four days before trial, Scott’s counsel advised the State that he anticipated
that Bryant would testify that a different person, Lester Register, and not Scott, was
Bryant’s accomplice in the robbery. As a result, the next day, the prosecutor asked her
expert, Palacio, to compare Register’s known fingerprints against the aforementioned
latent prints.
During the State’s case-in-chief, Palacio testified that Scott’s prints were found on
the sunglasses and the trash bags found in the getaway car. Just before noon on
Wednesday, September 14, after the State had rested its case, Palacio told the
prosecutor that he had examined twenty of the previously unmatched latent prints and
that Register’s fingerprints did not match any of these twenty prints.
That afternoon, Scott called Bryant as his first witness. Bryant testified that Scott
was his best friend and that he had been at Bryant’s apartment the morning of the robbery.
Bryant stated that while at the apartment, Scott touched one of the pair of sunglasses that
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were later worn during the robbery and that Scott also placed in Bryant’s car the trash
bags from which the items stolen from the AT&T store were later recovered by the police.
Bryant further testified that he advised Scott that he was going to commit a robbery later
that day and that Scott left the apartment not long thereafter. Bryant then testified that
Register committed the robbery with him and that they had each deliberately worn gloves
during the robbery so as not to leave fingerprints. Scott called one other witness in his
defense1 and then rested without testifying.
On rebuttal, the State first called Register, who denied committing the robbery or
knowing Scott or Bryant. As its second and final rebuttal witness, the State recalled
Palacio, who testified that he compared the unidentified latent prints to Register’s known
prints. At this point, Scott’s counsel objected and moved for a mistrial, arguing that the
State committed a discovery violation by not previously disclosing the substance of
Palacio’s rebuttal testimony that Palacio had compared the latent prints to Register’s
prints. Outside the presence of the jury, the court addressed the alleged discovery
violation by holding what is commonly referred to as a Richardson2 hearing. After
receiving further testimony from Palacio together with representations and argument from
counsel concerning this disclosure, the court found that the State committed a “technical”
discovery violation, but that it was not willful and did not prejudice Scott. The court denied
the motion for mistrial. Palacio thereafter testified to the jury that he was only able to
examine twenty of the seventy-seven previously unidentified latent prints and that
Register’s fingerprints did not match any of these twenty prints.
1 The testimony from this witness is not germane to any issue raised on appeal.
2 Richardson v. State, 246 So. 2d 771 (Fla. 1971).
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Analysis
On appeal, Scott contends that the State committed a significant discovery
violation by failing to disclose Palacio’s analysis that Register’s fingerprints did not match
any of the twenty latent prints that were re-examined just before trial and thus, the trial
court erred in denying his motion for mistrial.
When a defendant claims that the State has violated the rules
of discovery, the trial court must first determine whether there
was a discovery violation. If a violation has occurred, then the
court must determine whether the violation was willful or
inadvertent, if the violation was trivial or substantial, and
whether it “resulted in prejudice or harm to the defendant.”
Rojas v. State, 904 So. 2d 598, 600 (Fla. 5th DCA 2005) (quoting Richardson, 246 So.
2d at 775). Therefore, our first step is to determine whether the State’s failure to timely
disclose Palacio’s oral statement was a discovery violation, which depends on whether
the State was required to disclose the oral statement to Scott.
Florida Rule of Criminal Procedure 3.220(b)(1)(A) requires, in pertinent part, that
the State provide to a defendant a list of the names and addresses of all persons known
to the prosecutor to have information that may be relevant to any offense charged or any
defense thereto. Rule 3.220(b)(1)(B) directs that the State must also provide to the
defense the statement of any such person so named, including reports or statements of
experts. See Fla. R. Crim. P. 3.220(b)(1)(J). These disclosure rules apply to witnesses
and evidence that may be introduced during rebuttal. Lowery v. State, 610 So. 2d 657,
659 (Fla. 1st DCA 1992). Lastly, although the State did previously list Palacio as a
witness and provide Palacio’s written analysis that Scott and Bryant’s fingerprints were
found among the 123 latent prints recovered by the crime scene investigators, the State
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has a continuing obligation under this rule to promptly disclose additional discoverable
information to the defense. See Fla. R. Crim. P. 3.220(j).
The term “statement” as used in rule 3.220 is defined as “a written statement made
by the person and signed or otherwise adopted or approved by the person and also
includes any statement of any kind or manner made by the person and written or recorded
or summarized in any writing or recording.” Fla. R. Crim. P. 3.220(b)(1)(B). Here, Palacio
did not prepare a written report as to his findings that Register’s prints did not match the
twenty latent prints that he had re-examined just prior to trial nor was his oral statement
contemporaneously recorded or summarized in any writing. In Watson v. State, 651 So.
2d 1159 (Fla. 1994), the court, in construing the predecessor to rule 3.220(b)(1)(B),
determined that the State’s withholding of an oral statement made by its expert witness
was not a discovery violation because the statement was not discoverable. The court
held that the reference in the rule to “‘statement’ is limited to written statements or
contemporaneously recorded oral statements.” Watson, 651 So. 2d at 1163–64. Later,
in State v. McFadden, 50 So. 3d 1131 (Fla. 2010), the court held that rule 3.220(b)(1)(B)
did not require the State to disclose to a defendant an oral, unrecorded witness statement
because “[o]n its face, the rule does not include unrecorded oral statements.” 50 So. 3d
at 1133. Our court has also explained that the State is under no obligation to disclose
information that it receives from a witness that is not a statement as defined by rule
3.220(b)(1)(B), provided that information is not “Brady”3 material or is not a material
3 Brady v. Maryland, 373 U.S. 83 (1963) (holding that the State must disclose
material information within the State’s possession or control that tends to negate the guilt
of the defendant). Palacio’s findings that Register’s fingerprints did not match the twenty
latent prints did not tend to negate Scott’s guilt.
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alteration to an existing written or recorded statement previously provided by the State to
the defendant.4 Burkes v. State, 946 So. 2d 34, 36–37 (Fla. 5th DCA 2006) (citing Scipio
v. State, 928 So. 2d 1138, 1143 (Fla. 2006)). Neither exception is applicable in this case.
Thus, under McFadden and Watson, the prosecutor’s failure to disclose Palacio’s oral
statement that there was no match between Register’s prints and the twenty latent prints
was not a discovery violation.
We further conclude that even if the State’s nondisclosure was a discovery
violation, the trial court did not abuse its discretion in finding that Scott was not prejudiced.
A trial court’s decision on whether a discovery violation was willful or inadvertent, trivial
or substantial, and whether it resulted in prejudice or harm to the defendant is reviewed
under the abuse of discretion standard. Cox v. State, 819 So. 2d 705, 712 (Fla. 2002)
(citing State v. Tascarella, 580 So. 2d 154, 157 (Fla. 1991)). The prejudice inquiry that
the trial court must resolve at a Richardson hearing is “whether there is a reasonable
possibility that the discovery violation ‘materially hindered the defendant’s trial preparation
or strategy.’” Scipio, 928 So. 2d at 1150 (quoting State v. Schopp, 653 So. 2d 1016, 1020
(Fla. 1995)). However, a discovery violation may be considered harmless if an appellate
court can determine, beyond a reasonable doubt, that the defense was not procedurally
prejudiced by the violation. Casica v. State, 24 So. 3d 1236, 1240 (Fla. 4th DCA 2009)
4 In State v. Evans, 770 So. 2d 1174, 1180 (Fla. 2000), the Florida Supreme Court
recognized a limited exception to this rule, holding that disclosure is required when “the
oral statement materially alters a prior written or recorded statement previously provided
by the State to the defendant.” This exception is not applicable here because Palacio’s
oral statement that Register’s prints did not match the twenty latent prints re-examined
just before trial did not alter Palacio’s earlier written statement regarding Scott and
Bryant’s fingerprints.
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(citing Scipio, 928 So. 2d at 1150). “The burden is on the State to demonstrate the lack
of procedural prejudice to the [defendant].” Goldsmith v. State, 182 So. 3d 824, 828 (Fla.
4th DCA 2016) (citing Brown v. State, 165 So. 3d 726, 729–30 (Fla. 4th DCA 2015)).
Scott’s trial strategy was to argue that a third person, Register, committed the
robbery with Bryant. Palacio’s testimony in rebuttal that he did not find Register’s prints
contained in the twenty latent prints that he examined did not affect Scott’s strategy or
trial preparation. First, Bryant and, for that matter, the two AT&T employees, testified that
both assailants wore gloves during the robbery, with Bryant specifically testifying that the
reason for wearing the gloves was to not leave fingerprints. Palacio’s rebuttal testimony
that Register’s fingerprints were not matched to the twenty latent prints that he examined
just before trial was not inconsistent with Bryant’s testimony, nor did it affect Scott’s “third
person” defense. Second, Bryant’s testimony was necessary to explain that Scott’s
fingerprints on the sunglasses and garbage bags found in the getaway car were
innocently placed there by Scott at Bryant’s apartment well before the robbery. Third,
even after Palacio’s examination of the twenty latent prints, there still remained a
substantial number of unmatched and otherwise unidentified latent prints to allow Scott’s
third-party theory defense to be asserted. See Consalvo v. State, 697 So. 2d 805, 813
(Fla. 1996) (holding that even if the State committed a discovery violation by disclosing
to defense counsel during trial the additional results of the fingerprint expert’s analysis
performed one day before trial, the trial court did not err in concluding that the defense
was not prejudiced as there still remained a substantial number of unidentified prints even
after the analysis so that the third-party theory could still be asserted).
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Accordingly, because we conclude that no discovery violation was committed by
the State, but that even if there was a discovery violation, it was harmless,5 we affirm
Scott’s convictions.
AFFIRMED.
COHEN, C.J., and ORFINGER, J., concur.
5 The State also argues on appeal that while the prosecutor did not immediately
disclose to defense counsel the results of Palacio’s comparison of Register’s fingerprints
to the unidentified latent prints, she advised the court during the Richardson hearing that
she had disclosed the results to defense counsel during Scott’s presentation of his
defense and specifically did so prior to Scott deciding whether to exercise his right to
testify. Thus, the State essentially contends that Scott waived his argument that a
discovery violation occurred by not timely raising it. During the hearing, Scott’s trial
counsel advised the trial court that he had been told by the prosecutor “that [Palacio] was
going to be talking about comparison of Lester Register, that’s it. That’s not disclosure.”
The trial court expressed some skepticism with counsel’s position but made no distinct
factual finding as to whether Scott’s counsel was aware of Palacio’s findings regarding
the lack of Register’s fingerprints prior to Palacio being called as a rebuttal witness. If
defense counsel had been aware of the substance of Palacio’s rebuttal testimony, then
counsel should have raised the alleged discovery violation prior to Palacio’s testimony
and secured a ruling from the court on whether to preclude Palacio from testifying in
rebuttal. A discovery violation can be waived if not timely raised. See Guzman v. State,
42 So. 3d 941, 944 (Fla. 4th DCA 2010). However, in light of our decision today, we find
it unnecessary to address the merits of this argument.
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