          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FOURTH DISTRICT

                             STATE OF FLORIDA,
                                 Appellant,

                                        v.

                            MADCENE SERFRERE,
                                 Appellee.

                                 No. 4D17-1374

                               [January 9, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward    County;   David    Haimes,     Judge;   L.T.  Case     No.
062015CF015451A88810.

  Ashley Brooke Moody, Attorney General, Tallahassee, and Jeanine
Germanowicz, Assistant Attorney General, West Palm Beach, for
appellant.

  Carey Haughwout, Public Defender, and Jessica A. De Vera, Assistant
Public Defender, West Palm Beach, for appellee.

KUNTZ, J.

   A jury found Defendant Madcene Serfrere guilty of trafficking in cocaine
and possession of cocaine. After sentencing, the court granted Serfrere’s
motion for new trial based on an alleged Brady 1 issue. The State argues
that the evidence at issue was not material, precluding Serfrere from
establishing prejudice. Because we agree with the State that the evidence
at issue was neither material nor prejudicial to Serfrere, we reverse the
court’s order granting a new trial and remand with instructions to
reinstate the jury’s verdict.

                                  Background

   The issue in this appeal relates to a detective, Detective D.J., under
investigation while this case was pending. Detective D.J. and his partner,
Detective J.R., worked together during the investigation of Serfrere. The

1   Brady v. Maryland, 373 U.S. 83 (1963).
State listed Detective D.J. on a discovery witness list, but the State did not
identify him as a potential witness during voir dire.

   While the jury was deliberating, Serfrere’s counsel brought to the
court’s attention that the State had not called Detective D.J. during trial.
Counsel informed the court that he contacted the clerk of court during a
recess and learned that Detective D.J. was the subject of a Brady notice
and “[was] under investigation by the State Attorney’s Office and the SPU
Unit for Grand Theft.”

   Serfrere’s counsel acknowledged that Detective D.J. was on the State’s
discovery list, but told the court that the State did not advise him of any
Brady information. He also told the court that he found no information
on the docket related to the Brady notice, and he did not receive the Brady
notice.

   The State responded that the Brady notice was filed by the prior
prosecutor and scanned with a bar code. But the trial prosecutor admitted
she had not verified that the notice was docketed.

   Serfrere’s counsel maintained that Detective D.J. and his partner,
Detective J.R., were the only people who could confirm whether a
purported confidential informant was documented with the police
department, an issue relevant to Serfrere’s objective entrapment defense.
He also brought attention to Serfrere’s missing cell phone, which was in
Serfrere’s possession at the time of the arrest but was lost and never logged
as evidence.

   After discussions with counsel about the confidential informant, the
court stated: “I mean you are moving for a mistrial, [and] the jury is back
there deliberating.”   In response, Serfrere’s counsel stated:        “Well,
depending on what the jury does, Judge, then – I am being candid with
the court, depending on what the jury does I might ask for a mistrial.”

    The next day, Serfrere’s counsel informed the court that he “looked
into” Detective D.J. and found “some theft allegations about him stealing
stuff from Defendants, . . . and it goes right to this case of where my client
cell phone is missing.” But he also stated: “Judge, I don’t think this Court
can grant me a mistrial. If they come back guilty I am going to ask for a
mistrial.”

   The jury returned from deliberations and found Serfrere guilty of
possessing a trafficking amount of cocaine and guilty of the lesser-
included offense of possession with intent. After discharging the jury, the

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court asked counsel: “Where do we -- well, it wouldn’t be for a mistrial we
already have a verdict. You didn’t want to do a mistrial during trial. At
this point we have a verdict so the question is now where do we go from
here?”

   In response, Serfrere’s counsel moved for a new trial and argued that,
had he known about the investigation into Detective D.J., his defense
strategy would have changed: he would have cross-examined Detective
J.R. about Detective D.J., which would have been relevant to Detective
J.R.’s credibility. Defense counsel asserted that knowing about the
investigation into Detective D.J. “would have changed our defense in
reference to how I would have attacked that particular witness which was
his partner.”

   He also argued that Serfrere’s missing cell phone never went into
evidence, which may have related to whether Detective D.J., who was
under investigation for theft, took the phone.

   After argument, the court denied the motion for new trial. But Serfrere
moved for reconsideration, focusing on the missing cell phone. He argued
he “would have subpoenaed [Detective D.J.] to question him on the
whereabouts of the missing cell phone. The cell phone is key evidence in
this case, because it would have proved who the Defendant was texting on
the date of the incident; the police officer or the confidential informant.”

    At the hearing, the court reasoned the allegation that the confidential
informant was working with Detective D.J. “would have been established
if they had the cell phone records or had the cell phone to show the text
from the cell phone.” The court concluded “[defense counsel] has
established that he would have done something different had [Detective
D.J.] been called to come in, the evidence would have come in that he was
under investigation, because it would have been for impeachment.” The
State argued that the investigation would not be admissible to impeach
Detective D.J. because it was not a conviction, and the court clarified that
it would be relevant to impeachment for bias.

  The court granted Serfrere’s motion for reconsideration and motion for
new trial based on the purported Brady violation.

                                 Analysis

    We review an order granting a new trial for abuse of discretion. State
v. Dunnaway, 778 So. 2d 378, 378 (Fla. 4th DCA 2001) (citation omitted).


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    “In order to demonstrate a Brady violation, the defendant has the
burden to show (1) that favorable evidence, either exculpatory or
impeaching, (2) was willfully or inadvertently suppressed by the State, and
(3) because the evidence was material, the defendant was prejudiced.”
Hayward v. State, 183 So. 3d 286, 311 (Fla. 2015) (citations omitted).

   The focus of our inquiry here, and the only prong in dispute, is whether
the evidence was material. Materiality requires the defendant to establish
“a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.” Id.
(quoting Youngblood v. West Virginia, 547 U.S. 867, 870 (2006)). If the
evidence was not material, Serfrere will be unable to establish prejudice.
We find that the evidence was not material and that, as a result, Serfrere
cannot establish prejudice.

   Detective D.J. was being investigated for an incident that allegedly
occurred in Atlanta, Georgia. Our supreme court has explained that “[i]f
a state witness is merely under investigation . . . the ability to cross-
examine on such investigation is not absolute. Instead, any criminal
investigation must not be too remote in time and must be related to the
case at hand to be relevant.” Breedlove v. State, 580 So. 2d 605, 608 (Fla.
1991); see also Reed v. State, 875 So. 2d 415, 431 (Fla. 2004) (applying
Breedlove prongs); Ferguson v. Sec’y for Dep’t of Corr., 580 F.3d 1183,
1206–07 (11th Cir. 2009) (discussing materiality of evidence that
detectives were under investigation). There is nothing in the record
connecting the investigation into Detective D.J. to Serfrere’s missing cell
phone. 2 So Breedlove precluded Serfrere from impeaching the detective
with evidence of the pending investigation.

   Serfrere correctly points out that by creating a Brady notice of the
investigation into Detective D.J., the State acknowledged that the evidence
could have been material and prejudicial under Brady. But, since voir
dire, Serfrere was on notice that the State did not intend to call Detective
D.J. as a witness. As such, this is not a case of an undisclosed material
witness. Instead, it involves a witness the State disclosed and later stated
would not be called to testify.

   Beyond that, generally, a defendant cannot call a witness mainly to
impeach him. See Morton v. State, 689 So. 2d 259, 264 (Fla. 1997),
receded from on other grounds, Rodriguez v. State, 753 So. 2d 29 (Fla.
2000) (“Generally, however, if a party knowingly calls a witness for the

2 Serfrere questioned Detective J.R. about the location of the cell phone and the
text messages sent from the phone.

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primary purpose of introducing a prior statement which otherwise would
be inadmissible, impeachment should ordinarily be excluded. On the
other hand, a party may always impeach its witness if the witness gives
affirmatively harmful testimony.”). Because the State did not intend to call
Detective D.J. as a witness, there could have never been an opportunity
for Serfrere to impeach him.

    Serfrere failed to establish he was prejudiced by the State’s inadvertent
failure to provide a proper Brady notice. As a result, the court erred in
granting the motion for new trial.

                                Conclusion

   We reverse the court’s order granting Serfrere’s motion for new trial and
remand with instructions to reinstate Serfrere’s convictions and
sentences.

   Reversed and remanded.

TAYLOR and CONNER, JJ., concur.

                            *         *        *

   Not final until disposition of timely filed motion for rehearing.




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