       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT
                               July Term 2014

                         JOSHUA C. WILLIAMS,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D12-4069

                             [August 6, 2014]

   Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Robert Pegg, Judge; L.T. Case No.
312011CF000398A.

  Carey Haughwout, Public Defender, and Anthony Calvello, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L.
Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

GERBER, J.

   The defendant appeals his conviction for battery upon a jail detainee.
He argues that the trial court erred in excluding an exculpatory defense
witness at trial without considering any other alternative to exclusion. We
agree with the defendant’s argument and reverse.

   The investigating officer’s probable cause affidavit stated the following.
The victim reported that, while in the jail recreation yard, another inmate
named Whitehead hit him in the face with a basketball and started to
punch him. The victim said that he tried to defend himself when the
defendant (another inmate), ran up and punched him in the face. The
victim fell to the ground and both Whitehead and the defendant punched
him multiple times. The victim suffered a bloody nose and mouth, a
broken jaw, and several cuts to his face. The investigating officer also
spoke to two other inmates who saw the incident. They said that
Whitehead started to fight the victim, then the defendant ran up and
punched the victim, and when the victim went to the ground, Whitehead
and the defendant continued to punch him. The investigating officer also
spoke to the correctional deputy who was in the jail recreation yard. The
deputy said that when he turned around, he observed Whitehead and the
defendant on top of the victim, punching him. The investigating officer
also interviewed Whitehead and the defendant after reading them their
Miranda rights. Whitehead said that he was hit by the victim and the
defendant did not hit anyone. The defendant denied hitting the victim and
said he was trying to break up the fight.

  Based on the foregoing allegations, the state charged the defendant and
Whitehead each with one count of aggravated battery upon a jail detainee.

   The state’s discovery exhibit in the defendant’s case did not list
Whitehead as a person “known to the prosecutor to have information that
may be relevant to [the] offense charged or any defense thereto[.]” See Fla.
R. Crim. P. 3.220(b)(1)(A). The only mention of Whitehead in the state’s
discovery exhibit was in response to the category of “any written or
recorded statements and the substance of any oral statements made by a
codefendant”: “Whitehead told [the investigating officer] that [the victim]
hit him and that [the defendant] did not hit anyone.” See Fla. R. Crim. P.
3.220(b)(1)(D).

    Within the state’s discovery exhibit, the state demanded the defendant,
within fifteen days, to furnish to the prosecutor a written list of the names
and addresses of all witnesses whom the defendant expected to call at the
trial. See Fla. R. Crim. P. 3.220(d)(1)(A). However, the defendant never
furnished the prosecutor with any witness list.

    The case proceeded to jury selection on a Monday. At the outset of jury
selection, when the trial court asked the prosecutor to announce to the
jury pool the names of any witnesses she expected to call to testify, the
prosecutor announced several names, but did not announce Whitehead’s
name. When the court asked defense counsel if he had any additional
names to announce, defense counsel announced: “[W]e may call any and
all State witnesses as well as Devante Whitehead.” The state did not object
or request a Richardson hearing at that time. The jury was selected and
sworn at the end of that Monday and told to return on Friday for trial.

   That Friday morning, before opening statements, the following
exchange occurred between the prosecutor and the court regarding the
need for a Richardson hearing:

      PROSECUTOR: During jury selection[,] [defense counsel]
      mentioned the name of a potential witness that he may call,

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      which is the former codefendant, Devante Whitehead.
      [Defense counsel] has never filed any type of witness list. So
      the State is going to ask for a Richardson hearing.

      COURT: No problem. As soon as [defense counsel], if he calls
      the witness, we’ll have a Richardson hearing right on the spot.

      PROSECUTOR: Okay.

The record does not indicate why the court did not immediately conduct
the Richardson hearing or why the state and the defense did not object to
the delay in conducting the Richardson hearing until the defense called
Whitehead as a witness.

   When the court called upon the prosecutor to make an opening
statement, the prosecutor asked for a bench conference. At the bench, the
prosecutor said that she just noticed Whitehead, whom she referred to as
“the potential codefendant witness,” sitting in the hallway with the state
witnesses. The prosecutor notified the court of her concern in that regard.
However, the prosecutor did not follow up on her request for a Richardson
hearing regarding Whitehead as a potential defense witness.

   The state, during its case-in-chief, called seven witnesses:           the
investigating officer, the two inmates who witnessed the fight, the victim,
two corrections deputies who were involved in investigating the fight, and
the doctor who treated the victim for his injuries. All testified consistently
with the probable cause affidavit.

   Immediately after the court excused the jury for their lunch break, the
court announced that it would conduct the Richardson hearing at that
point. Because of the hearing’s significance, we recite the hearing’s
transcript in detail:

      COURT: Let me ask [defense counsel], do you intend to call
      Devante Whitehead?

      DEFENSE: Yes, your Honor.

      COURT: And why would you not list him as a witness?

      DEFENSE: I was not instructed until jury selection my client
      was directing me to list him.



                                      3
COURT: . . . Well, under the Richardson test the violation was
not willful from [defense counsel’s] part, but . . . [Whitehead
has] been known to everybody since [the date of the incident].
The discovery rules are there for a reason. I understand . . .
the defendant may want [Whitehead] to testify, but that’s not
the way the system operates. You want to list him as a
witness, you have every right to do so. You have not listed
[Whitehead] as a witness yet and [he] will not be permitted to
testify in this case.

DEFENSE: . . . [R]espectfully, Judge . . . [T]hat’s the most
extreme remedy.

COURT: Yeah, it’s extreme, that’s why it is extreme in this
case because we’re talking about people who were listed late.
This witness wasn’t listed late, this witness is not listed. The
jury’s been sworn and still not listed. That’s my final ruling.
This witness is not testifying in this case. That’s that . . . .

....

DEFENSE: . . . Judge, I don’t see how the State’s prejudiced.
They knew . . . all this . . . .

COURT: . . . [S]o did you. You knew he is a witness in this
case since day one. You could have listed him as a witness.
You chose not to do so. You made that decision and we’re not
going to change it now to take advantage of it.

PROSECUTOR: Judge . . . because the case law is very clear
. . . excluding the witness is the most severe sanction[,] I would
like to put a couple things on the record in case this is
reviewed by . . . [an] appellate court, that this witness . . . has
still not been listed. It was just orally announced during jury
selection. . . . [T]he state would be prejudiced by his testimony
because I would have prepared this case somewhat differently
had I known Mr. Whitehead was going to testify. . . . Mr.
Whitehead has been out of custody for some time. I would
have ordered jail calls with the defendant to see if the two had
been talking [a]bout the case. . . . I would have . . . gotten an
investigator to hunt him down. . . . I think that’s kind of moot
at this point because he showed up though . . . I don’t know
how . . . he showed up.


                                4
....

    And, Judge, the State asked, because I was willing to try to
depose him . . . I asked [defense counsel] . . . yesterday
morning, are you going to call him, if you are, can you make
him available for me to depose him[?] . . . [Defense counsel]
still has not responded and I still have not been able to take
his deposition. So my argument is that it is a willful violation,
not only on the part of the defendant for telling his attorney
that, but if [defense counsel] really wanted to remedy the
situation and I was doing my part to try to help that, he would
have made him available for me to take his deposition.

....

DEFENSE: Judge, I was not able to get him under subpoena
until late yesterday. . . . He’s here today. . . . She can depose
him now.

COURT: . . . We’re going to be back here in an hour and ten
minutes from now [to resume the trial].

DEFENSE: . . . [The prosecutor] can depose him. She could
have called him. She did neither. He’s on probation. She can
make the probation officer have him come here. She knows
that because she put him on probation.

PROSECUTOR: . . . Judge, I do have a case too that I’ll cite
for the record. It’s Wolski v. State, 515 So. 2d 433 [(Fla. 4th
DCA 1987)] . . . where it was a codefendant very similar to this
situation . . . . [I]t upheld an exclusion of the codefendant as
a witness because the court did conduct a proper and
adequate Richardson hearing . . . .

COURT: And this kind of thing is just . . . unacceptable in this
kind of case . . . not listing witnesses on purpose. Whether it’s
the defendant’s fault or counsel that chose not to do it, I don’t
know, but the witness never was listed in this case and . . . it
was willful and it’s a clear violation and the final decision is
Mr. Whitehead will not testify . . . .

DEFENSE: Judge, just one thing.            With regards to
willfulness, I wasn’t instructed by my client until . . . jury


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      selection that day when I announced it. . . . I haven’t been
      sitting on this witness.

      COURT: . . . I understand. I’m not accusing you of . . . any
      misconduct, I’m just . . . telling you that . . . this witness could
      have been listed a long time ago under the normal discovery
      process . . . . But . . . we’re going to conduct the case like this
      . . . and that’s my final word on it . . . .

      ....

      DEFENSE: Your Honor . . . . I’m sorry to rehash something
      . . . . The case that [the prosecutor] provided, that witness
      was . . . introduced after the judgment of acquittal. So the
      procedural prejudice in that case was more apparent.

      ....

      COURT: [Whitehead] is not testifying. That’s the way that’s
      going to be. We’re not going to do all this dancing around at
      the end of a trial when . . . your client knew about . . .
      [Whitehead’s] existence from [the date of the incident] . . .
      [then] decides he wants to call [Whitehead] . . . during jury
      selection. I don’t think so. That’s just a willful [violation to]
      try to create error in the record.

(emphasis added).

   Defense counsel later proffered testimony from Whitehead outside the
jury’s presence. Whitehead testified that he hit the victim first, and the
only time he saw the defendant was when the defendant pulled him off the
victim. He said he did not see the defendant do anything else in the fight.

   After the jury returned, the defendant testified that he saw Whitehead
and the victim exchange punches. He said that his role was just trying to
break up the fight by grabbing Whitehead because he did not want to see
Whitehead get in trouble. He denied hitting the victim.

   The jury convicted the defendant of the lesser-included offense of
battery of a prison detainee.

    This appeal followed. The defendant argues that the trial court erred
in excluding Whitehead as an exculpatory witness without considering any
other alternative to exclusion. We review the court’s decision for an abuse

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of discretion. See Delhall v. State, 95 So. 3d 134, 160 (Fla. 2012) (“A trial
court’s decision on a Richardson hearing is subject to reversal only upon
a showing of abuse of discretion.”) (citation and quotation marks omitted).

   We agree with the defendant’s argument. We conclude that the trial
court erred in excluding Whitehead as an exculpatory witness without
considering any other alternative to exclusion.

    The emphasized portion of the Richardson hearing makes clear that the
trial court decided to exclude Whitehead as a witness without conducting
an adequate Richardson hearing and without considering any other
alternative to exclusion. As our supreme court most recently stated in
Delhall:

          Where a discovery violation occurs, we held in Richardson
      v. State, 246 So. 2d 771 (Fla. 1971), that the trial court must
      conduct an inquiry as to whether the violation: (1) was willful
      or inadvertent; (2) was substantial or trivial; and (3) had a
      prejudicial effect on the aggrieved party’s trial preparation. Id.
      at 774–75. This Court will review the record to determine if
      the inquiry was properly made and if the trial court’s actions
      pursuant to the inquiry were proper. . . . Often, a Richardson
      violation involves a discovery violation by the State. The same
      rules apply, however, regardless of which party is at fault. The
      following questions will be examined in turn: Whether the
      trial court conducted an adequate Richardson inquiry;
      whether the trial court erred in excluding the [evidence]; and
      whether any error was harmless beyond a reasonable doubt.

95 So. 3d at 160-61.

   Here, the trial court did not conduct an adequate Richardson inquiry
before deciding to exclude Whitehead as a witness. The court addressed
only whether the violation was willful, and initially stated the violation was
not willful from defense counsel’s part. The court did not address whether
the violation was substantial or trivial or had a prejudicial effect on the
state’s trial preparation before announcing its decision to exclude
Whitehead as a witness. Thus, we are compelled to conclude from this
record that the court excluded Whitehead as a witness because of the
defendant’s failure to comply with the discovery rules, standing alone.
This was error. See Delhall, 95 So. 3d at 162 (“[T]he failure of either the
State or a defendant to comply with a discovery deadline, standing alone,
is not dispositive for purposes of determining whether the sanction of
exclusion of a witness or other evidence is appropriate and the inquiry

                                      7
must involve a determination of whether the violation resulted in
substantial prejudice to the opposing party.”) (citation and internal
quotation marks omitted).

    The prosecutor clearly attempted to protect the court from its error by
informing the court how the state was prejudiced by the defendant’s
untimely decision to call Whitehead as a witness, and by informing the
court that she sought to depose Whitehead between jury selection and
opening statements. However, we cannot ignore the plain fact that the
circuit court decided to exclude Whitehead as a witness without
considering that information and without considering any other
alternative to exclusion. Moreover, although the court ultimately stated
its finding that the defendant’s violation was willful, the court never made
any findings for our review as to whether the violation was substantial or
trivial or had a prejudicial effect on the state’s trial preparation.

  The trial court also erred in excluding Whitehead without considering
any other alternative to exclusion. As our supreme court stated in Delhall:

         It is well-settled that when a discovery violation is
      committed by the State, exclusion of the evidence is viewed as
      an extreme sanction to be employed only as a last resort and
      only after the court determines no other reasonable
      alternative exists to overcome the prejudice and allow the
      witness to testify. . . . [T]his rule applies with equal or greater
      force when a defense witness or evidence is sought to be
      excluded for a defense discovery violation, because there are
      few rights more fundamental than the right of an accused to
      present evidence or witnesses in his [or her] own defense. The
      extreme sanction of excluding defense evidence should be
      used only as a last resort and it is incumbent upon the trial
      court to determine whether any other reasonable alternatives
      can be employed to overcome possible prejudice. Here,
      exclusion of the evidence was actually the first resort, not the
      last.

95 So. 3d at 162-63 (internal quotation marks, citations, brackets, and
footnote omitted). Here, as in Delhall, it also appears that exclusion of the
evidence was the first resort, not the last. Accordingly, we conclude that
the trial court erred when it failed to conduct an adequate Richardson
inquiry and excluded the testimony of the defense witness without
considering less extreme alternatives. See McDuffie v. State, 970 So. 2d
312, 322 (Fla. 2007) (same holding under similar circumstances).


                                      8
    The court’s error was not harmless beyond a reasonable doubt. Our
supreme court has defined the harmless error test as placing “the burden
on the state, as the beneficiary of the error, to prove beyond a reasonable
doubt that the error complained of did not contribute to the verdict or,
alternatively stated, that there is no reasonable possibility that the error
contributed to the conviction.” DiGuilio v. State, 491 So. 2d 1129, 1135
(Fla. 1986). Here, a reasonable possibility exists that the error contributed
to the conviction. Besides the defendant himself, Whitehead was the
defendant’s only potentially exculpatory witness. Although the state
presented other witnesses who appeared to provide overwhelming evidence
of the defendant’s guilt, the harmless error test “is not a sufficiency-of-the-
evidence, a correct result, a not clearly wrong, a substantial evidence, a
more probable than not, a clear and convincing, or even an overwhelming
evidence test. . . . The question is whether there is a reasonable possibility
that the error affected the verdict.” Id. at 1139. Here, if the jury were to
have believed Whitehead’s testimony over the other witnesses’ testimony,
then a reasonable possibility exists that the error in excluding his
testimony without considering any other alternative affected the verdict.

   This case is distinguishable from Wolski v. State, 515 So. 2d 433 (Fla.
4th DCA 1987), upon which the state relied in the trial court. In Wolski,
at the close of the state’s case, the trial court granted the co-defendant's
motion for a judgment of acquittal. The defendant then announced his
intention to call the co-defendant as a witness. The state objected and
argued that the defendant’s failure to list the co-defendant as a witness
constituted a discovery violation. The trial court agreed and found that
the state would suffer prejudice if it allowed the co-defendant to testify.
Upon his conviction, the defendant sought a new trial based on the trial
court’s exclusion of the co-defendant's testimony at trial.

   We found no error in the trial court’s exclusion of this testimony. Id.
at 433. In a brief opinion, we concluded that the trial court conducted an
adequate hearing as required by Richardson, and that the record
supported the exclusion of the witness based on prejudice to the state. Id.
We also noted that the defendant admitted he could, and in fact did,
present the same testimony with two other witnesses. Id.

   Unlike the trial court in Wolski, the trial court here did not conduct an
adequate hearing as required by Richardson and never made a finding of
prejudice to the state. We also question whether the record supported the
exclusion of the witness based on prejudice to the state, when the
prosecutor knew of Whitehead and of the substance of his testimony from
the probable cause affidavit, as confirmed by the state’s discovery exhibit.
See Patterson v. State, 419 So. 2d 1120, 1123 (Fla. 4th DCA 1982)

                                      9
(exclusion was too severe a sanction where the prosecutor “knew of the
excluded witness and of the substance of the witness’s testimony before
the trial commenced,” and “[a]lthough the prosecutor claimed that he was
surprised, he did not indicate . . . that the prejudicial surprise, if any,
could not be cured by a less severe remedy”). Also, unlike the defendant
in Wolski, the defendant here could not present the same testimony as
Whitehead with another witness other than himself.

    Before completing this opinion, we wish to convey the additional point
that the defendant and the state also should bear responsibility for the
trial court’s error.

   The trial court correctly observed that the defendant knew that
Whitehead was “a witness in this case from day one,” “could have listed
him as a witness,” and “chose not to do so.” The trial court also was
appropriately frustrated that it should not have had to “do all this dancing
around at the end of a trial” when the defendant knew about Whitehead’s
existence from the date of the incident, and then decided that he wanted
to call Whitehead during jury selection. Clearly, the defendant’s failure to
serve a witness list ultimately led to the court’s error.

   The state also contributed to the court’s error by failing to object or
request a Richardson hearing when, at the outset of jury selection on a
Monday, defense counsel announced that he may call Whitehead as a
witness. Without the state speaking up, the court had no reason to know
that an issue existed. If the state had done so, then the court, without a
continuance, could have allowed the state to depose Whitehead, obtain
certified copies of his criminal record for impeachment, discover any other
impeachment information, and plan a rebuttal case. The record also
contains no information that a brief continuance, if necessary to
accomplish these reasonable remedies, would have prejudiced either the
state, the defense, or the court.

    The last contribution to the error occurred when, on the morning of
trial, the state finally requested a Richardson hearing, and the court made
the unprompted decision to delay the Richardson hearing from before
opening statements until the defense called Whitehead as a witness. The
record does not indicate why the court did not immediately conduct the
Richardson hearing or why the state and the defense did not object to the
delay in conducting the Richardson hearing until the defense called
Whitehead as a witness. While we appreciate that the court and counsel
may not have foreseen a problem with the delay, perhaps this appeal could
have been avoided if the Richardson hearing occurred at that moment.
While we know of no rule or supreme court case requiring that a court

                                    10
conduct a Richardson hearing immediately upon request or soon
thereafter, the more prudent course in the future may be for the court and
the parties to consider conducting the Richardson hearing sooner rather
than later when remedies other than exclusion of a witness are more
readily available. But see Sears v. State, 656 So. 2d 595, 596 (Fla. 1st DCA
1995) (“Once the asserted discovery violation was brought to the court’s
attention, the trial judge was required to conduct an inquiry, rule on
whether a violation occurred, and determine whether the evidence was
admissible.”) (citations omitted).

   In sum, because the trial court decided to exclude Whitehead as a
witness without conducting an adequate Richardson hearing and without
considering any other alternative to exclusion, the court erred. The error
was not harmless. Based on the foregoing, we are compelled to reverse
the defendant’s conviction and remand for a new trial.

   Reversed and remanded for new trial.

GROSS and CONNER, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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