                                       IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA

NICOLE CHERI PARKER,                   NOT FINAL UNTIL TIME EXPIRES TO
                                       FILE MOTION FOR REHEARING AND
      Appellant,                       DISPOSITION THEREOF IF FILED

v.                                     CASE NO. 1D16-1855

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed September 13, 2017.

An appeal from the Circuit Court for Okaloosa County.
Michael Flowers, Judge.

Bert Moore, The Moore Law Office, Crestview, for Appellant.

Pamela Jo Bondi, Attorney General, and Tayo Popoola, Assistant Attorney General,
Tallahassee, for Appellee.


PER CURIAM

      Nicole Cheri Parker appeals, on multiple grounds, her conviction for

aggravated battery with great bodily harm and with a weapon. Of her claims, we

write to address only the assertion that the trial court committed reversible error in

failing to conduct an adequate Richardson hearing. See Richardson v. State, 246 So.

2d 771 (Fla. 1971). On this point, we agree with Nicole Parker, and reverse and

remand for a new trial.
      Nicole Parker’s conviction is related to an incident that took place at the

residence of Candice Day. Nicole Parker was convicted of cutting the throat of

Wade Parker (her estranged husband) during an altercation between Wade Parker

and another acquaintance, Donald Jesperson. Testimony from eyewitnesses

established that while Wade Parker was in a fighting hold with Jesperson, Nicole

Parker jumped on Wade Parker’s back. Subsequently, Wade Parker’s throat was cut

with a knife. Conflicting testimony was presented at trial as to who committed the

offense.

      Candice Day testified at trial, that during the fight, Nicole Parker came

running into her bedroom, grabbed a knife, and ran out. She also testified that Nicole

Parker came back in the room shortly after and said, “Candice, I swear to God I

didn’t cut [Wade].” Day’s trial testimony was significantly different from the

statement she gave to police immediately following the incident. During cross-

examination, defense counsel established that Day’s sworn statement to the police

did not include any mention of Nicole Parker grabbing a knife from the bedroom,

nor did it include the statement upon re-entering the bedroom. Day confirmed that

her prior sworn statement did not allege these facts. She emphasized the State

became aware of the additional facts during a pre-trial meeting. She testified:

      I know what it says. And I talked to Ms. Torres (prosecutor) about it. I
      was under the impression that I was going to be questioned by
      investigators, like they did everybody else. And at that point I was

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      scared because she had not been found. And it’s better for me to tell my
      statement than write it.

The State did not notify defense counsel prior to trial of the expected changes to

Day’s testimony.

      Following cross-examination of Day, defense counsel timely objected and

argued the State committed a discovery violation by not advising of the change in

Day’s testimony prior to trial. In response, the trial court focused on whether Day

had recanted anything in her original statement or had merely added to it at trial.

Finding Day merely supplemented her earlier testimony, the trial court denied

defense counsel’s objection without further explanation or inquiry.

                                Richardson Hearing

      Once on notice of a potential discovery violation, the trial court initiates

the Richardson inquiry as follows: 1) the court must determine whether a discovery

rule has been violated; and 2) if the court finds a violation, it must assess whether

the violation was inadvertent or willful, trivial or substantial, and whether it has

prejudiced the opposing party’s ability to prepare for trial. Johnson v. State, 25 So.

3d 662, 665 (Fla. 1st DCA 2010); Richardson, 246 So. 2d at 775.

      In the present case, defense counsel placed the trial court on notice that a

possible discovery violation had occurred, which triggered a Richardson inquiry.

Following a brief discussion, the trial court denied defense counsel’s objection to

Day’s testimony. The trial court did not address step two of the Richardson analysis;
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thus, presumptively finding that the State did not commit a discovery violation.

“Where a trial court rules that no discovery violation occurred, the reviewing court

must first determine whether the trial court abused its discretion.” Pender v. State,

700 So. 2d 664, 667 (Fla. 1997).

      In State v. Evans, the Florida Supreme Court held that the State’s failure to

inform the defendant of an anticipated change in a witness’s testimony from initial

statement to testimony at trial was tantamount to failing to disclose a witness, and

thus, the State committed a discovery violation. 770 So. 2d at 1179. In Evans, a

witness told police she essentially knew nothing about an alleged shooting. Id. at

1176. However, at trial, the witness testified she had a discussion with the defendant

the night before the shooting, in which the defendant laid out his plan to shoot the

victim. Id. The witness also testified that she told police about the conversation

approximately one month before trial. Id. The State had knowledge of the changed

testimony, but did not disclose the change to the defense. Id. The court determined

this failure to disclose resulted in a discovery violation. Id.

      The factual scenario in the present case is nearly identical to that of Evans.

The State concedes that it was aware Day’s testimony at trial was going to be

different from her previous statement to police and that the defense was not informed

of the change. Accordingly, we find the State committed a discovery violation by

failing to provide Nicole Parker with the substance of the changed testimony prior

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to trial, and the trial court abused its discretion in finding otherwise. Because we

determine that a discovery violation occurred, we also must conclude that the scope

of the Richardson inquiry was inadequate, as the trial court did not inquire into the

factors of whether the violation was inadvertent or willful, trivial or substantial, and

if prejudicial to the opposing party’s trial preparation.

                                   Harmless Error

      A Richardson violation is subject to harmless error analysis. C.D.B. v. State,

662 So. 2d 738, 741 (Fla. 1st DCA 1995) (quoting State v. Schopp, 653 So. 2d 1016,

1020 (Fla.1995)); Pender v. State, 700 So. 2d 664, 666 (Fla. 1997).

      In determining whether a Richardson violation is harmless, the
      appellate court must consider whether there is a reasonable possibility
      that the discovery violation procedurally prejudiced the defense. As
      used in this context, the 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...
      In other words, only if the appellate court can say beyond a reasonable
      doubt that the defense was not procedurally prejudiced by the discovery
      violation can the error be considered harmless.

Schopp, 652 So. 2d at 1021. In Scipio v. State, 928 So. 2d 1138, 1148 (Fla. 2006),

the Florida Supreme Court also said of its decision in Schopp, “[t]he decision further

noted that ‘the vast majority of cases’ will not have a record sufficient to support a

finding of harmless error and that there is a ‘high probability’ that any given error

will be found harmful.”




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      Applying the Schopp standard to the present case, we cannot conclude beyond

a reasonable doubt that, “neither the discovery violation nor the trial court’s failure

to inquire into whether corrective sanctions were warranted materially hindered the

defendant’s trial preparation or strategy.” Schopp, 652 So. 2d at 1020; Kiser v. State,

921 So. 2d 28, 30 (Fla. 1st DCA 2006). In this case, there was no testimony, other

than Day’s, that specifically addressed the origin of the knife used to cut Wade

Parker. Though two witnesses linked Nicole Parker with the knife after she jumped

on Wade Parker’s back, no witness other than Candice Day placed the knife in her

hand before the incident. Jesperson testified he saw a knife in Nicole Parker’s hand

after she jumped on Wade Parker’s back and cut his throat. Similarly, Troy Day

testified that the knife was dropped after Nicole Parker made contact with Wade

Parker. However, with the exception of Candice Day, no witness testified that

Nicole Parker had a knife in her hand before she made contact with Wade Parker.

And until Candice Day testified at trial, defense counsel was not aware that a witness

could place Nicole Parker with a knife immediately before the incident.

Additionally, in contrast to her sworn statement to the policy, Candice Day testified

at trial that Nicole Parker said “Candice, I swear to God I didn’t cut [Wade].”

According to Candice Day, that statement was made after Wade Parker was cut, but

before anyone had accused Nicole Parker of committing the act. It cannot be said

that there was no reasonable possibility that Nicole Parker’s trial preparation would

                                          6
have been different if the discovery violation had not occurred. The failure to hold

an adequate Richardson hearing, under these facts, does not constitute harmless

error.

         Accordingly, based on the above, we reverse and remand for a new trial. We

affirm the two remaining issues raised without further comment, as we find that the

trial court did not commit fundamental error in admitting the video of Nicole

Parker’s custodial interrogation, nor did it err in denying her motion for judgment of

acquittal.

         REVERSED and REMANDED for a new trial consistent with this opinion.


ROWE, RAY, and M.K. THOMAS, JJ., CONCUR.




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