       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          ROYCE GOLDSMITH,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

              Nos. 4D12-4282, 4D12-4283 and 4D12-4284

                           [ January 6, 2016 ]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Barbara McCarthy, Judge; L.T. Case Nos. 08-
3705CF10A, 09-3705CF10A and 11-17276CF10A.

   Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public
Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

    Royce Goldsmith appeals his convictions and sentences for robbery,
assault, and possession of a firearm by a convicted felon (Case Number
4D12-4282). He also appeals the revocation of his probation based on the
new law violations (Case Numbers 4D12-4283 and 4D12-4284). We affirm
appellant’s convictions for robbery and assault, and we affirm the
revocation of probation, but we reverse his conviction for possession of a
firearm by a convicted felon and the habitual felony offender sentences
imposed on the robbery and assault charges. We remand for a new trial
on the possession of a firearm charge and for a new sentencing hearing.

   Background

     While appellant was still on probation in other cases, he was charged
with the new offenses of robbery with a firearm (Count I), aggravated
assault (Count II), and possession of a firearm by a convicted felon (Count
III). The felon in possession charge (Count III) was severed from the other
counts and tried separately.
    Appellant was tried by jury on Counts I and II, with the trial court
simultaneously hearing evidence on the violation of probation cases. The
State presented evidence that appellant used a gun to rob a male victim of
two $10 bills, held the gun to the head of a female victim, and left the
scene with the male victim’s ex-girlfriend. When the police took appellant
into custody later that day, a deputy found two $10 bills in one of
appellant’s pockets. In a 911 call, the male victim, who did not testify at
trial, identified the perpetrator as “Biggy.” The female victim was the
State’s principal witness at trial.

   Appellant gave a statement to a detective in which he denied that he
went by the name “Biggy.” Appellant knew the male victim from high
school. Appellant claimed that he had gotten into a fight with the male
victim because the victim had previously beaten up his (i.e., the victim’s)
ex-girlfriend, who was acquainted with appellant. Appellant denied pulling
a gun on the victims or owning a gun.

   Following the trial on Counts I and II, the jury found appellant guilty of
the lesser included offenses of robbery and assault, but found that
appellant did not actually possess a firearm during the course of the
crimes on either count.

    The subsequent trial on the firearm possession charge took place before
a different jury. The State presented evidence that the police conducted a
traffic stop of the vehicle that left the scene of the robbery, that appellant
was a passenger in the vehicle, and that the police recovered a handgun
in the vehicle behind the seats on the floorboard. Appellant admitted to a
detective that he had seen the gun in the backseat, picked it up, and then
put it back. Appellant testified in his own defense, claiming that he
touched something in the back seat but did not think he was feeling a real
gun. The jury found appellant guilty as charged on Count III.

   Confrontation Clause Argument

    On appeal, appellant first argues that the admission of the male victim’s
statements on the 911 call violated his rights under the Confrontation
Clause. This issue was preserved in the trial on Counts I and II, but not
in the trial on Count III.

   We conclude that the statements on the 911 call dealt with an ongoing
emergency and were nontestimonial. See Davis v. Washington, 547 U.S.
813, 822, 827 (2006); see also Michigan v. Bryant, 562 U.S. 344, 370-78
(2011). Thus, the admission of the recording of the 911 call did not violate

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the Confrontation Clause. Moreover, even if the admission of the non-
testifying witness’s statements on the 911 call constituted a violation of
the Confrontation Clause, any error was harmless. See State v. DiGuilio,
491 So. 2d 1129, 1135 (Fla. 1986). The statements were merely
cumulative to the female victim’s trial testimony. And, although appellant
disputed the circumstances of the confrontation with the victims,
appellant’s own statement to the police placed him at the scene of the
crimes, so identity was not an issue. There is no reasonable possibility
that any error in admitting the statements contributed to the verdict on
Counts I and II.

    Discovery Violation

   Appellant’s next argument concerns a discovery violation that took
place during the trial on Count III. On cross-examination, appellant
denied that he went by the nickname “Biggy.”1 Then, over appellant’s
objection that the State committed a discovery violation, the prosecutor
showed appellant a printout copy of his Facebook page—which was not
previously disclosed to the defense—and stated: “So it says [A]bout Royce.
And all it says is one word in all capitals, [B]IGGY. That’s what it says on
your Facebook account.” Appellant claimed that the name was not on his
Facebook page before and that two other people had access to his
Facebook account.

   The trial court ultimately agreed to hold a Richardson hearing. The
prosecutor argued that there was no discovery violation, because
appellant’s Facebook account was a “public record.” The prosecutor went
on to argue the following: “I didn’t have access to it until two minutes
before he testified, when I Googled his name to see if anything popped up.”
The trial court found that there was no discovery violation.

   On appeal, appellant argues that the State committed a willful and
substantial discovery violation, and that the trial court’s Richardson
inquiry was inadequate.




1 The transcript in the trial on Count III uses the term “Piggy,” but it can be
inferred that the references to “Piggy” were mistakes and that the lawyers and
witnesses were really saying, “Biggy” or “Biggie.” In the trial on the first two
counts, all of the references to appellant’s alleged nickname were to the name
“Biggy”—not “Piggy.” Further, appellant testified that “Piggy” [sic] was his
“favorite rap artist.” Presumably, appellant was referring to the late rapper Biggie
Smalls, otherwise known as the Notorious B.I.G.

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    Where a discovery violation is brought to the trial court’s attention, the
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. Richardson v. State, 246 So. 2d
771, 774-75 (Fla. 1971). Even a possible discovery violation triggers the
requirement to conduct a Richardson hearing, as the inquiry is intended
“to flesh out whether there has indeed been a discovery violation.” Landry
v. State, 931 So. 2d 1063, 1065 (Fla. 4th DCA 2006). A trial court’s rulings
regarding the three prongs of Richardson “are reviewed for an abuse of
discretion, but this discretion can be exercised only following a proper
inquiry.” Brown v. State, 165 So. 3d 726, 729 (Fla. 4th DCA 2015).

    If the trial court incorrectly concludes that there was no discovery
violation and fails to address each of the three prongs of Richardson, the
Richardson hearing is inadequate. See Thomas v. State, 63 So. 3d 55, 60
(Fla. 4th DCA 2011) (holding that Richardson inquiry was inadequate
where the trial court did not determine whether the violation was willful
or inadvertent, did not determine if the violation was trivial or substantial,
and did not require the State to demonstrate the lack of procedural
prejudice).

   A trial court’s failure to conduct a proper Richardson inquiry is not per
se reversible error, but is subject to a harmless error analysis. State v.
Schopp, 653 So. 2d 1016, 1021 (Fla. 1995). “A discovery violation is
harmless only if an appellate court can determine, beyond a reasonable
doubt, that the defense was not procedurally prejudiced.” Casica v. State,
24 So. 3d 1236, 1240 (Fla. 4th DCA 2009). “[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.” Schopp, 653 So. 2d at 1020.

    A court’s analysis of procedural prejudice “considers how the defense
might have responded had it known about the undisclosed piece of
evidence and contemplates the possibility that the defense could have
acted to counter the harmful effects of the discovery violation.” Scipio v.
State, 928 So. 2d 1138, 1149 (Fla. 2006). The burden is on the State to
demonstrate the lack of procedural prejudice to the defense. Brown, 165
So. 3d at 729-30. “[W]here the State commits a discovery violation, the
standard for deeming the violation harmless is extraordinarily high.” Cox
v. State, 819 So. 2d 705, 712 (Fla. 2002).

   In this case, as the State commendably concedes in this appeal, the
prosecutor committed a discovery violation by failing to disclose
appellant’s Facebook page to the defense promptly upon discovering it.

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The State was required to disclose the Facebook page because it contained
a written statement that was made by the defendant—or at least a written
statement that a jury could reasonably conclude was made by the
defendant. See Fla. R. Crim. P. 3.220(b)(1)(C) (2012) (the prosecutor shall
disclose to the defendant “the following information and material within
the state’s possession or control,” including “any written or recorded
statements . . . made by the defendant”).

    Although the prosecutor advised that he did not learn about the page
until a few minutes before appellant testified, the prosecutor was under a
continuing duty to promptly disclose the information to the defense. See
Fla. R. Crim. P. 3.220(j) (2012). The fact that a defendant’s Facebook page
may be publicly available does not excuse the prosecutor’s duty to disclose
to the defense any statements made by the defendant on Facebook where
such material is within the State’s possession or control. Thus, the
prosecutor committed a discovery violation and the trial court erred in
concluding otherwise.

   Because the trial court incorrectly concluded that there was no
discovery violation and failed to address the three prongs of Richardson,
the trial court’s Richardson inquiry was inadequate. Moreover, we cannot
agree with the State that the error was harmless beyond a reasonable
doubt. Regardless of whether the discovery violation was willful, the
violation was not trivial. The reference to appellant’s nickname on his
Facebook page—which was not previously disclosed to the defense—served
to damage appellant’s credibility and to corroborate the male victim’s
statements on the 911 call.

   We are compelled to reverse because the State has failed to show that
the defense was not procedurally prejudiced by the prosecutor’s surprise
use of appellant’s Facebook page to impeach his testimony that he did not
go by the nickname “Biggy.” Had the Facebook printout been timely
disclosed to the defense before appellant took the stand, defense counsel
could have discussed the issue with appellant before he testified. Thus,
at a minimum, the prosecutor’s discovery violation could have affected
appellant’s decision as to whether to testify. See Portner v. State, 802 So.
2d 442, 446 (Fla. 4th DCA 2001) (“There is no impeachment exception to
the Richardson rule. . . . In most cases, the decision whether a defendant
will testify is a strategic call which can materially alter the outcome of a
case. A defendant’s ability to make an informed decision in this regard is
certainly affected by the state’s nondisclosure of impeachment material
discoverable under the rules.”) (emphasis added).

   Because we cannot say beyond a reasonable doubt that the defense was

                                     5
not procedurally prejudiced by the State’s discovery violation, we reverse
appellant’s conviction for possession of a firearm by a convicted felon and
remand for a new trial on that charge only.2

    Sentencing

    Finally, we reverse appellant’s habitual felony offender sentences and
remand for resentencing, as the State failed to enter into evidence proof
that appellant had the qualifying prior convictions. Our reversal is without
prejudice to the State attempting to prove on remand that appellant meets
the requirements for sentencing as a habitual felony offender. See State
v. Collins, 985 So. 2d 985, 994 (Fla. 2008) (“[W]e hold that when a habitual
offender sentence is reversed because of insufficient evidence, on remand
for resentencing the State may again attempt to prove that the defendant
meets the criteria for such sentencing.”).

    Affirmed in part, Reversed in part, and Remanded.

CIKLIN, C.J., and LEVINE, J., concur.

                              *         *          *

    Not final until disposition of timely filed motion for rehearing.




2 Because Counts I and II were tried separately from the firearm charge, this error
does not affect appellant’s convictions for robbery and assault that were obtained
in the first trial. Nor would this error affect the violations of probation.

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