      Third District Court of Appeal
                               State of Florida

                           Opinion filed April 13, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D14-1540
                          Lower Tribunal No. 12-9493
                             ________________


                         Sandor Eduardo Guillen,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



     An Appeal from the Circuit Court for Miami-Dade County, Ellen Sue
Venzer, Judge.

      Law Offices of Matthew Troccoli, P.A., and Matthew J. Troccoli, for
appellant.

      Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant
Attorney General, for appellee.


Before ROTHENBERG, LAGOA, and SALTER, JJ.

     ROTHENBERG, J.
      Sandor Eduardo Guillen (“the defendant”) appeals his criminal convictions

on the grounds that the trial court abused its discretion by: (1) denying his motion

for a continuance; (2) denying his motion to preclude the State from calling

William Wright (“Wright”) as an expert witness; and (3) permitting the State to

introduce photographs of the deceased victim’s injuries.1 Because the defendant

failed to preserve the first issue for appellate review and the trial court did not

abuse its discretion on the remaining two appellate issues, we affirm.

                                 BACKGROUND

      In 2012, the defendant was speeding on a busway in his Land Rover while

intoxicated when his vehicle slammed into a minivan carrying Kaely Camacho

(“the victim”) and her father and sister. After the collision, rather than rendering

aid, the defendant fled the scene and was ultimately arrested. The victim later died

from her injuries.

      The defendant was ultimately charged with three first degree felonies: (1)

DUI manslaughter with failure to render aid; (2) vehicular homicide with failure to

render aid; and (3) leaving the scene of a crash involving death. The defendant

pled not guilty.




1 The defendant also appeals the trial court’s denial of his motion for new trial.
However, we find that the defendant’s arguments are without merit, and the trial
court did not abuse its discretion. We therefore affirm the denial.

                                         2
         The relevant procedural history is as follows. Approximately ten days prior

to the scheduled February 25, 2014 trial, a new prosecutor was assigned to

prosecute the case. On February 17, 2014, after reviewing the file, the newly

assigned prosecutor listed Wright as an expert witness, but indicated to defense

counsel that she would probably not call Wright at trial. Thereafter, the State

moved for a sixty-day continuance because, among other reasons, the State needed

time to meet with Wright and to prepare for trial, and defense counsel needed time

to depose Wright. On February 19, 2014, the trial court heard the State’s motion

for a continuance. At the hearing, the defendant objected to the listing of Wright as

a witness, but stated that if the trial court permitted the State to list Wright as a

witness, the defendant would then join with the State in requesting a continuance.

The trial court denied the joint motion for a continuance, stating that there was

sufficient time before trial to conduct the necessary depositions and prepare for

trial.

         The State deposed the defendant’s accident reconstruction expert witness,

Miles Moss (“Moss”), on February 21, 2014, at which time the State learned that

Moss had revised his vehicular speed calculations from what he had previously

provided in his report. As a result, the State immediately informed the defendant

that it intended to call Wright as a witness at the trial, and the defendant deposed

Wright.



                                          3
        On February 24, 2014, after deposing Wright, the defendant moved to

preclude the State from calling Wright as an expert witness based on the late

disclosure of Wright as a witness. The State responded that the late disclosure of

Wright as a witness was caused, in part, by the defendant’s failure to disclose that

the defendant’s expert, Moss, had revised his vehicular speed calculations, and that

these revisions required the opinion of a more experienced expert, like Wright, to

provide rebuttal testimony. The trial court denied the defendant’s motion to

preclude Wright from testifying as a witness.

        Prior to the start of trial on February 25, 2014, the defendant asked the trial

court to note his continuing objection to Wright being called as a witness. In

response, the trial court conducted a Richardson2 hearing to determine whether the

State had committed a discovery violation and if so whether Wright should be

excluded as a witness. The State explained that it only decided to call Wright after

deposing the defendant’s expert, Moss, and learning that although Moss had

changed his testimony several weeks earlier, no one had disclosed this fact to the

State. Although the trial court found insufficient procedural prejudice to warrant

exclusion of Wright as a witness, the trial court reset opening statements to the

following day to allow defense counsel to consult with his own expert regarding




2   Richardson v. State, 246 So. 2d 771 (Fla. 1971).

                                           4
Wright’s expected testimony, and the trial court further ordered the State to make

its experts available to defense counsel.

         The defendant also objected before and at trial to the admission of certain

photographs of the victim’s injuries, arguing that they were unfairly prejudicial.

The trial court overruled the objections, reasoning that the probative value of the

objected-to photographs was not outweighed by their prejudicial effect.

         After a four-day jury trial, the defendant was convicted on all three counts,3

and after his motion for a new trial was denied, he filed the instant appeal.

                                      ANALYSIS

I. Denial of Defendant’s Motion for a Continuance

         First, we find that the defendant failed to preserve for appellate review the

denial of his motion for a continuance. Although defense counsel renewed his

motion to exclude Wright as a witness, he did not seek a continuance after the trial

court denied his motion to exclude Wright as a witness, and, in fact, announced

that he was ready for trial.

         The record reflects that after the trial court denied the defendant’s motion to

exclude Wright, the trial court specifically asked the defendant if he was ready for

trial.



3 Pending this appeal, the trial court vacated all but the DUI manslaughter
conviction.

                                            5
              [The State]: It doesn’t sound as if [defense counsel] is asking
       for additional time. I don’t know if he is or not.
              [Defense counsel]: I have - other than not waiving the objection
       to the expert’s [sic] post Perez, I’ve made the best of the Court’s order
       in taking the deposition and done my best to get ready.
              The Court: Are you prepared to go to trial, sir?
              [Defense counsel]: Yes.

       Because the defendant failed to renew his motion for a continuance at the

start of the trial and defense counsel actually stated that he was prepared to go to

trial, the defendant failed to preserve for appellate review the trial court’s denial of

his motion for a continuance. See McCray v. State, 369 So. 2d 111, 112 (Fla. 1st

DCA 1979) (“[A]ppellant has not properly preserved for appellate review his

pretrial motion for continuance since it was not renewed at the time of the trial;

moreover, appellant's counsel indicated at trial that he was in fact ready for trial.”);

Riggins v. State, 283 So. 2d 878, 879-80 (Fla. 1st DCA 1973) (holding that the

defendant waived his motion for a continuance when he failed to object at the time

of trial).

       However, even if the defendant had preserved for appellate review the

denial of his motion for a continuance, we would still affirm because no prejudice

has been demonstrated. A reviewing court will not reverse a trial court’s denial of

a motion for a continuance unless the trial court abused its discretion. Bouie v.

State, 559 So. 2d 1113, 1114 (Fla. 1990). “An abuse of discretion is generally not




                                           6
found unless the court’s ruling on a continuance results in undue prejudice to the

defendant.” Randolph v. State, 853 So. 2d 1051, 1062 (Fla. 2003).

      A trial court does not abuse its discretion by denying a motion for a

continuance if the defendant will not suffer undue prejudice. See Randolph, 853

So. 2d at 1062. The defendant claims that he suffered prejudice because he did not

have sufficient time to fully understand the “drag factor” Wright used to calculate

the speed of the two vehicles involved in the crash. For the following reasons, we

disagree.

      A defendant will generally suffer no prejudice if he was aware of the

substance of the witness’s testimony and was able to depose the witness prior to

trial. See Diaz v. State, 132 So. 3d 93, 118 (Fla. 2013) (finding no abuse of

discretion where the trial court denied the defendant’s motion for a continuance to

prepare a rebuttal to the State’s expert’s testimony because the defendant was

previously aware of the substance of the testimony of the witness); Cooper v.

State, 336 So. 2d 1133, 1139 (Fla. 1976) (holding that the trial court did not abuse

its discretion by denying a motion for a continuance where an expert was added as

a witness on the third day of trial, but the defendant was given an opportunity to

depose the witness before the witness testified at the trial).

      In the instant case, the defendant was not surprised by Wright’s testimony

regarding the “drag factor” he relied on in calculating the speed of the vehicles at



                                           7
the time of the crash. All of the accident reconstruction witnesses, including the

State’s previously listed witnesses, Det. Perez and Sgt. Greenwell, and the

defendant’s own expert witness, Moss, relied on the “drag factor” to calculate the

speed of the vehicles. Sgt. Greenwell’s and Det. Perez’s drag factor calculations

differed substantially from Moss’s calculations. Thus, the defendant should have

known that the drag factor calculations were in dispute well before the State added

Wright as a witness. Additionally, the defendant deposed Wright on February 24,

2014, and had three days to evaluate Wright’s calculations before Wright took the

stand on February 27, 2014.

      We are also unpersuaded by the defendant’s argument that it created an

undue burden upon defense counsel to prepare for Wright’s testimony in the days

leading up to the trial. As the Florida Supreme Court stated, “[o]ur rules were not

designed to eliminate the onerous burdens of trial practice.” Cooper, 336 So. 2d at

1138. The fact that defense counsel had only a few days prior to trial to consider

Wright’s largely cumulative testimony does not establish undue prejudice. See,

e.g., Gause v. State, 270 So. 2d 383, 384 (Fla. 3d DCA 1972) (affirming the trial

court’s denial of a motion for a continuance and rejecting the defendant’s argument

that his new defense counsel, who was substituted only five days before trial, had

insufficient time to prepare).




                                        8
      We reject the defendant’s claim that the trial court abused its discretion by

denying the defendant’s motion for a continuance because the defendant was

aware that there was a dispute over the “drag factor” long before trial, permitted to

depose Wright prior to trial, given time to consult with his own expert regarding

Wright’s testimony prior to trial, and provided with the transcript of Wright’s

deposition testimony before Wright testified.

II. Denial of Defendant’s Motion to Exclude Wright as a Witness

      After the defendant asked for a continuing objection to Wright testifying at

trial, the trial court timely conducted a Richardson hearing to determine whether

the late addition of Wright warranted excluding Wright as a witness. When a trial

court conducts a Richardson hearing, an appellate court “review[s] the record to

determine if the [Richardson] inquiry was properly made and if the trial court’s

actions pursuant to the inquiry were proper.” Delhall v. State, 95 So. 3d 134, 160

(Fla. 2012). Because the defendant does not dispute that the trial court followed the

proper procedure required by Richardson, our review is limited to a determination

of whether the trial court abused its discretion in refusing to exclude Wright

pursuant to its Richardson inquiry. Id. at 160.

      Pursuant to Richardson, the trial court must first determine whether a

discovery violation has occurred, and if so, the trial court must “inquire as to

whether the violation (1) was willful or inadvertent; (2) was substantial or trivial;



                                          9
and (3) had a prejudicial effect on the aggrieved party’s trial preparation.” State v.

Evans, 770 So. 2d 1174, 1183 (Fla. 2000). The focus of the inquiry is whether and

to what degree the discovery violation would cause procedural prejudice to the

defendant. Joubert v. State, 847 So. 2d 1056, 1058 (Fla. 3d DCA 2003) (“[T]he

defense is procedurally prejudiced if there is a reasonable possibility that the

defendant's trial preparation or strategy would have been materially different had

the violation not occurred.”) (quoting State v. Schopp, 653 So. 2d 1016, 1020 (Fla.

1995)); Jones v. State, 360 So. 2d 1293, 1296 (Fla. 3d DCA 1978) (“The key

question in a situation in which a discovery violation is alleged is whether or not

the defendant was significantly prejudiced by the state’s failure to produce the

requested evidence.”).

      At the outset, we note that the record is unclear as to whether the late

addition of Wright as an expert witness was actually a discovery violation. Rule

3.220(b)(1) of the Florida Rules of Criminal Procedure, sets forth the State’s

discovery obligations. Rule 3.220(b)(1)(A) specifies that within fifteen days after a

defendant serves a Notice of Discovery, the State must serve a written discovery

exhibit, which among other things, lists all persons known to the prosecutor to

have information relevant to the offenses charged or any defenses thereto. Rule

3.220(b)(1)(A) also specifies that the prosecutor must designate the category of




                                         10
each witness. Expert witnesses whom the prosecutor intends to call and who have

not provided a report are listed as Category A witnesses in rule 3.220(b)(1)(A)(i).

      If the State had intended to call Wright as an expert witness at the time it

responded to the defendant’s Notice of Discovery, it committed a discovery

violation by failing to include Wright’s name and address in the discovery

response. Additionally, even if Wright had not initially been listed because he had

no involvement with the case, and the State had no intention of calling him as a

witness, under rule 3.220(j) the State had a continuing obligation to disclose and

produce Wright once it determined that he might be called by the State to testify at

the defendant’s trial.

      (j) Continuing Duty to Disclose. If, subsequent to compliance with
      the rules, a party discovers additional witnesses or material that the
      party would have been under a duty to disclose or produce at the time
      of the previous compliance, the party shall promptly disclose or
      produce the witnesses or material in the same manner as required
      under these rules for initial discovery.

Fla. R. Crim. P. 3.220(j).

      The record, however, reflects that when a new prosecutor was assigned to

prosecute this case ten days prior to trial, the new prosecutor decided to list Wright

as a potential expert witness after discovering that the defendant had listed a

defense expert witness, Moss. The listing of Wright appears to have been a

precautionary action because Moss had not yet been deposed and, based upon

Moss’s report, the State indicated that it probably would not call Wright as a


                                         11
witness. After listing Wright, the State moved for a continuance to allow Wright to

evaluate the evidence, the State to consult with Wright, and the defendant to

depose Wright. However, after the State deposed Moss and learned that after

writing his report he had changed his testimony, the State decided to call Wright as

a witness. If the State listed Wright as soon as Wright was consulted and the State

decided to add him as a potential witness, then there was no discovery violation,

see Burkes v. State, 946 So. 2d 34, 37 (Fla. 5th DCA 2006) (“[Rule 3.220(j)] is

violated when the State or the defense withholds ‘additional witnesses or material’

that, if discovered earlier, would have been subject to mandatory disclosure”)

(emphasis added), and the inquiry as to whether he should be excluded as a witness

at trial rests on any prejudice the defendant may suffer as a result of the late listing.

See Bryant v. State, 41 Fla. L. Weekly D364 (Fla. 4th DCA Feb. 10, 2016)

(finding that the late disclosure of DNA evidence was not a discovery violation,

but that the trial court properly considered whether the late disclosure caused the

defendant to suffer procedural prejudice and cured the prejudice by granting a

continuance rather than excluding the DNA evidence).

      Although it appears that there was no discovery violation, because the

record is unclear and because the trial court conducted a Richardson hearing, we

will briefly address the Richardson factors.

      A. Whether the alleged discovery violation was willful or inadvertent



                                           12
      For the reasons previously discussed in this opinion, the record supports the

finding that the alleged discovery violation was not willful. The defendant’s

expert, Moss, prepared a report detailing his opinions and conclusions. Based on

Moss’s conclusions, the State did not believe it needed to list and call an expert to

refute Moss’s testimony. However, when the State deposed Moss and learned that

he had changed his calculations and conclusions and that these changes were

relevant and material to the issue of causation, the State decided to call Wright as

an expert. Specifically, Moss changed his calculations and conclusions as to the

speed each of the vehicles were traveling at the time of the crash and the drag

coefficient.

      B. Whether the alleged discovery violation was substantial

      The alleged discovery violation was not substantial. Wright’s testimony did

not materially differ from previously listed State witnesses. His testimony with

regard to the drag factor was consistent with the testimony of Sgt. Greenwell.

Wright set the drag factor at .42, while Sgt. Greenwell set the drag factor at .40,

.48, and .50. These numbers differed substantially from the .26 drag factor

calculation relied on by Moss. In addition, Wright’s speed calculations were more

favorable to the defendant than Det. Perez’s calculations. Det. Perez claimed that

the defendant was driving at ninety miles per hour, while Wright claimed the

defendant was driving at eighty-three miles per hour.



                                         13
      But more importantly, the speed of the vehicles was not a significant issue at

trial. All of the witnesses, including the defendant’s own expert, testified that the

defendant was driving far in excess of the speed limit, in the busway, while highly

intoxicated, and that the car the victim was a passenger in was traveling slower

than the posted speed limit. The posted speed limit was forty miles per hour.

Although the State’s witnesses calculated the defendant’s speed of travel at

between eighty-three and ninety miles per hour, even the defendant’s expert

concluded that the defendant was driving far in excess of the forty miles per hour

speed limit, opining that the defendant was traveling at a speed of seventy-two

miles per hour upon impact and further concluding that the vehicle the victim was

in was only traveling at a speed of between twenty-eight and thirty-eight miles per

hour. The defendant’s defense was not that he was not speeding or that the driver

of the vehicle the victim was in was traveling too fast. His defense was that when

he entered the intersection the light was green and thus he had the right-of-way and

he did not cause the accident. Therefore, Wright’s testimony regarding the rate of

speed of the vehicles and his use of a .42 drag coefficient to determine the speed

was not a material issue at trial.

      C. Whether the State’s alleged discovery violation was prejudicial

      The defendant makes the same “prejudice” arguments in both his appeal of

the trial court’s denial of his motion for a continuance and his appeal of the trial



                                         14
court’s denial of his motion to exclude Wright as a witness. He contends that the

late addition of Wright prejudiced his ability to prepare a defense because defense

counsel had insufficient time to understand the science behind Wright’s testimony,

and in particular, Wright’s use of a .42 drag factor. The defendant suggests that it

was therefore error to deny his motion to preclude Wright from testifying. We find

that for the same reasons discussed above, the defendant was not procedurally

prejudiced by the State’s alleged discovery violation.

      Even assuming prejudice, excluding Wright as a sanction would have been

an improper remedy. While a trial court has broad discretion to impose the

sanctions it deems appropriate in order to resolve the prejudice caused by a

discovery violation, see Fla. R. Crim. P. 3.220(n)(1), the decision to exclude a

witness should only be made where no other sanction or remedy would suffice.

State v. Rodriguez, 907 So. 2d 564, 565 (Fla. 3d DCA 2005). Thus, even if the

defendant was able to demonstrate some prejudice, the trial court did not abuse its

discretion when it denied the defendant’s motion to preclude Wright because the

prejudice that resulted from the State’s late disclosure was cured when the

defendant was able to depose Wright and evaluate Wright’s testimony days before

Wright took the stand at trial. As we previously noted,

      [I]t is manifest that whatever prejudice to a defendant’s ability to
      defend against the charges may be said to arise from a delay in
      providing him with discovery is cured when he is provided with such



                                         15
      discovery, and there is no other impediment to his utilizing it in the
      preparation of his defense.

State v. Del Gaudio, 445 So. 2d 605, 610 (Fla. 3d DCA 1984). Because defense

counsel had sufficient time to consider and prepare for Wright’s testimony, any

prejudice caused by the State’s late disclosure was cured.

III. Admissibility of the Objected-to Photographs

      [T]rial courts have broad discretion in admitting photographic
      evidence and the test for the admission of such evidence is not
      whether the evidence is necessary. Rather, the evidence is subject to
      the balancing test: whether the evidence is relevant and, if so, whether
      the probative value outweighs the danger of prejudice.

Armstrong v. State, 73 So. 3d 155, 168 (Fla. 2011)

      Only three of the photographs that the defendant objected to were potentially

graphic because they depicted the victim’s head with an open wound and blood.

However, “[t]he mere fact that photographs may be gruesome does not necessarily

mean they are inadmissible.” Harris v. State, 843 So. 2d 856, 864 (Fla. 2003).

These photographs were relevant to demonstrate the extent of the damage caused

by the crash and to corroborate the defendant’s speed of travel upon impact. We

find that the probative value of these photographs was not outweighed by their

potential to unduly prejudice the defendant, and therefore, the trial court did not

abuse its discretion by admitting these photographs at trial.

                                  CONCLUSION




                                         16
      We affirm based on the following. First, the defendant did not preserve for

appellate review the denial of his motion for a continuance because, at the time of

trial, he admitted to the trial court that he was ready to proceed to trial. We also

find that even if the issue had been properly preserved, the trial court did not abuse

its discretion by denying the defendant’s motion for a continuance because the

defendant did not demonstrate undue prejudice. Second, we find that the trial court

did not abuse its discretion by denying the defendant’s motion to preclude the State

from calling Wright as a witness because the State’s alleged discovery violation

was not willful, substantial, or procedurally prejudicial, and because any prejudice

was cured when the defendant deposed Wright several days before Wright took the

stand, the defendant was able to consult with his own expert witness regarding

Wright’s testimony prior to trial, and the defendant had a transcribed copy of

Wright’s deposition testimony prior to Wright testifying at trial. Lastly, we find no

abuse of discretion by allowing the State to introduce the objected-to photographs

of the victim’s body because the photographs were relevant and not unfairly

prejudicial.

      Affirmed.




                                         17
