         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                  NOT FINAL UNTIL TIME EXPIRES TO
                                                  FILE MOTION FOR REHEARING AND
                                                  DISPOSITION THEREOF IF FILED


DANIEL SCOTT,

      Appellant,

 v.                                                      Case No. 5D16-3843

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed November 17, 2017

Appeal from the Circuit Court
for Orange County,
Thomas W. Turner, Judge.

James S. Purdy, Public Defender, and Noel
A. Pelella, Assistant Public Defender,
Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney          General,
Tallahassee,   and   Samuel        Perrone,
Assistant Attorney General,        Daytona
Beach, for Appellee.


LAMBERT, J.

      Daniel Scott appeals his convictions after trial for robbery with a firearm, fleeing or

attempting to elude a law enforcement officer at high speed or with wanton disregard, and

resisting an officer without violence. Scott raises three issues on appeal. We affirm

without further discussion the second and third issues raised by Scott concerning whether
fundamental error was committed by the trial court’s minor addition to a standard jury

instruction and his claim of cumulative error. As to Scott’s first issue, we conclude that

the trial court did not err in denying Scott’s motion for mistrial based on the State’s alleged

discovery violation in failing to disclose to the defense its fingerprint expert’s oral

statement revealed during rebuttal because, first, there was no discovery violation, and

second, even if the State’s failure to disclose was a discovery violation, the record

establishes that the violation was harmless. Accordingly, we affirm.

Background

       Two employees at an AT&T store in Orlando, Florida, observed a black Kia Forte

automobile twice come into the parking lot in front of the store and then leave. When the

car appeared a third time, two men wearing black wigs, hats, sunglasses, and gloves

exited the car and came into the store. One of the men was carrying a gun, and the two

ordered the employees into a back room of the store and forced them to lay on their

stomachs. The assailants then took cellphones, tablets, and over $2000 in cash from the

store and fled.    One of the employees immediately called 9-1-1 and described the

getaway car. Soon thereafter, law enforcement engaged in a high speed pursuit of the

vehicle before immobilizing it. The two suspects in the car fled in different directions but

were quickly apprehended.       These two men, Daniel Scott and Jajuan Bryant, were

identified shortly thereafter by the AT&T employees, who also separately identified the

vehicle, gun, wigs, and sunglasses used in the robbery. Additionally, the law enforcement

officers who chased the two men after they fled in their car identified Scott as the driver

of the getaway car and Bryant as the passenger. The items stolen from the AT&T store

were found by the officers in trash bags located in the car.




                                              2
       A total of 123 latent fingerprints were obtained from the crime scene, car, and items

found inside the car and were provided to the State’s fingerprint analyst, Marco Palacio,

to compare against Scott and Bryant’s known fingerprints. In his written report, Palacio

confirmed that Scott’s fingerprints matched five of the prints taken from the sunglasses

and the trash bags and that eleven of the other 123 latent prints matched Bryant’s known

fingerprints.    Pertinent to this appeal, seventy-seven of these latent prints were not

matched to anybody related to the investigation.

       The trial in the case began on Monday, September 12, 2016. Well before trial,

Scott’s co-defendant, Bryant, pleaded guilty to the same charges filed against Scott and

was sentenced to prison.       Scott listed Bryant as a potential trial witness, and on

September 8, four days before trial, Scott’s counsel advised the State that he anticipated

that Bryant would testify that a different person, Lester Register, and not Scott, was

Bryant’s accomplice in the robbery. As a result, the next day, the prosecutor asked her

expert, Palacio, to compare Register’s known fingerprints against the aforementioned

latent prints.

       During the State’s case-in-chief, Palacio testified that Scott’s prints were found on

the sunglasses and the trash bags found in the getaway car. Just before noon on

Wednesday, September 14, after the State had rested its case, Palacio told the

prosecutor that he had examined twenty of the previously unmatched latent prints and

that Register’s fingerprints did not match any of these twenty prints.

       That afternoon, Scott called Bryant as his first witness. Bryant testified that Scott

was his best friend and that he had been at Bryant’s apartment the morning of the robbery.

Bryant stated that while at the apartment, Scott touched one of the pair of sunglasses that




                                             3
were later worn during the robbery and that Scott also placed in Bryant’s car the trash

bags from which the items stolen from the AT&T store were later recovered by the police.

Bryant further testified that he advised Scott that he was going to commit a robbery later

that day and that Scott left the apartment not long thereafter. Bryant then testified that

Register committed the robbery with him and that they had each deliberately worn gloves

during the robbery so as not to leave fingerprints. Scott called one other witness in his

defense1 and then rested without testifying.

       On rebuttal, the State first called Register, who denied committing the robbery or

knowing Scott or Bryant. As its second and final rebuttal witness, the State recalled

Palacio, who testified that he compared the unidentified latent prints to Register’s known

prints. At this point, Scott’s counsel objected and moved for a mistrial, arguing that the

State committed a discovery violation by not previously disclosing the substance of

Palacio’s rebuttal testimony that Palacio had compared the latent prints to Register’s

prints. Outside the presence of the jury, the court addressed the alleged discovery

violation by holding what is commonly referred to as a Richardson2 hearing.             After

receiving further testimony from Palacio together with representations and argument from

counsel concerning this disclosure, the court found that the State committed a “technical”

discovery violation, but that it was not willful and did not prejudice Scott. The court denied

the motion for mistrial. Palacio thereafter testified to the jury that he was only able to

examine twenty of the seventy-seven previously unidentified latent prints and that

Register’s fingerprints did not match any of these twenty prints.



       1   The testimony from this witness is not germane to any issue raised on appeal.

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


                                               4
Analysis

       On appeal, Scott contends that the State committed a significant discovery

violation by failing to disclose Palacio’s analysis that Register’s fingerprints did not match

any of the twenty latent prints that were re-examined just before trial and thus, the trial

court erred in denying his motion for mistrial.

              When a defendant claims that the State has violated the rules
              of discovery, the trial court must first determine whether there
              was a discovery violation. If a violation has occurred, then the
              court must determine whether the violation was willful or
              inadvertent, if the violation was trivial or substantial, and
              whether it “resulted in prejudice or harm to the defendant.”

Rojas v. State, 904 So. 2d 598, 600 (Fla. 5th DCA 2005) (quoting Richardson, 246 So.

2d at 775). Therefore, our first step is to determine whether the State’s failure to timely

disclose Palacio’s oral statement was a discovery violation, which depends on whether

the State was required to disclose the oral statement to Scott.

       Florida Rule of Criminal Procedure 3.220(b)(1)(A) requires, in pertinent part, that

the State provide to a defendant a list of the names and addresses of all persons known

to the prosecutor to have information that may be relevant to any offense charged or any

defense thereto. Rule 3.220(b)(1)(B) directs that the State must also provide to the

defense the statement of any such person so named, including reports or statements of

experts. See Fla. R. Crim. P. 3.220(b)(1)(J). These disclosure rules apply to witnesses

and evidence that may be introduced during rebuttal. Lowery v. State, 610 So. 2d 657,

659 (Fla. 1st DCA 1992). Lastly, although the State did previously list Palacio as a

witness and provide Palacio’s written analysis that Scott and Bryant’s fingerprints were

found among the 123 latent prints recovered by the crime scene investigators, the State




                                              5
has a continuing obligation under this rule to promptly disclose additional discoverable

information to the defense. See Fla. R. Crim. P. 3.220(j).

       The term “statement” as used in rule 3.220 is defined as “a written statement made

by the person and signed or otherwise adopted or approved by the person and also

includes any statement of any kind or manner made by the person and written or recorded

or summarized in any writing or recording.” Fla. R. Crim. P. 3.220(b)(1)(B). Here, Palacio

did not prepare a written report as to his findings that Register’s prints did not match the

twenty latent prints that he had re-examined just prior to trial nor was his oral statement

contemporaneously recorded or summarized in any writing. In Watson v. State, 651 So.

2d 1159 (Fla. 1994), the court, in construing the predecessor to rule 3.220(b)(1)(B),

determined that the State’s withholding of an oral statement made by its expert witness

was not a discovery violation because the statement was not discoverable. The court

held that the reference in the rule to “‘statement’ is limited to written statements or

contemporaneously recorded oral statements.” Watson, 651 So. 2d at 1163–64. Later,

in State v. McFadden, 50 So. 3d 1131 (Fla. 2010), the court held that rule 3.220(b)(1)(B)

did not require the State to disclose to a defendant an oral, unrecorded witness statement

because “[o]n its face, the rule does not include unrecorded oral statements.” 50 So. 3d

at 1133. Our court has also explained that the State is under no obligation to disclose

information that it receives from a witness that is not a statement as defined by rule

3.220(b)(1)(B), provided that information is not “Brady”3 material or is not a material



       3  Brady v. Maryland, 373 U.S. 83 (1963) (holding that the State must disclose
material information within the State’s possession or control that tends to negate the guilt
of the defendant). Palacio’s findings that Register’s fingerprints did not match the twenty
latent prints did not tend to negate Scott’s guilt.



                                             6
alteration to an existing written or recorded statement previously provided by the State to

the defendant.4 Burkes v. State, 946 So. 2d 34, 36–37 (Fla. 5th DCA 2006) (citing Scipio

v. State, 928 So. 2d 1138, 1143 (Fla. 2006)). Neither exception is applicable in this case.

Thus, under McFadden and Watson, the prosecutor’s failure to disclose Palacio’s oral

statement that there was no match between Register’s prints and the twenty latent prints

was not a discovery violation.

       We further conclude that even if the State’s nondisclosure was a discovery

violation, the trial court did not abuse its discretion in finding that Scott was not prejudiced.

A trial court’s decision on whether a discovery violation was willful or inadvertent, trivial

or substantial, and whether it resulted in prejudice or harm to the defendant is reviewed

under the abuse of discretion standard. Cox v. State, 819 So. 2d 705, 712 (Fla. 2002)

(citing State v. Tascarella, 580 So. 2d 154, 157 (Fla. 1991)). The prejudice inquiry that

the trial court must resolve at a Richardson hearing is “whether there is a reasonable

possibility that the discovery violation ‘materially hindered the defendant’s trial preparation

or strategy.’” Scipio, 928 So. 2d at 1150 (quoting State v. Schopp, 653 So. 2d 1016, 1020

(Fla. 1995)). However, a discovery violation may be considered harmless if an appellate

court can determine, beyond a reasonable doubt, that the defense was not procedurally

prejudiced by the violation. Casica v. State, 24 So. 3d 1236, 1240 (Fla. 4th DCA 2009)




       4 In State v. Evans, 770 So. 2d 1174, 1180 (Fla. 2000), the Florida Supreme Court
recognized a limited exception to this rule, holding that disclosure is required when “the
oral statement materially alters a prior written or recorded statement previously provided
by the State to the defendant.” This exception is not applicable here because Palacio’s
oral statement that Register’s prints did not match the twenty latent prints re-examined
just before trial did not alter Palacio’s earlier written statement regarding Scott and
Bryant’s fingerprints.



                                               7
(citing Scipio, 928 So. 2d at 1150). “The burden is on the State to demonstrate the lack

of procedural prejudice to the [defendant].” Goldsmith v. State, 182 So. 3d 824, 828 (Fla.

4th DCA 2016) (citing Brown v. State, 165 So. 3d 726, 729–30 (Fla. 4th DCA 2015)).

       Scott’s trial strategy was to argue that a third person, Register, committed the

robbery with Bryant. Palacio’s testimony in rebuttal that he did not find Register’s prints

contained in the twenty latent prints that he examined did not affect Scott’s strategy or

trial preparation. First, Bryant and, for that matter, the two AT&T employees, testified that

both assailants wore gloves during the robbery, with Bryant specifically testifying that the

reason for wearing the gloves was to not leave fingerprints. Palacio’s rebuttal testimony

that Register’s fingerprints were not matched to the twenty latent prints that he examined

just before trial was not inconsistent with Bryant’s testimony, nor did it affect Scott’s “third

person” defense. Second, Bryant’s testimony was necessary to explain that Scott’s

fingerprints on the sunglasses and garbage bags found in the getaway car were

innocently placed there by Scott at Bryant’s apartment well before the robbery. Third,

even after Palacio’s examination of the twenty latent prints, there still remained a

substantial number of unmatched and otherwise unidentified latent prints to allow Scott’s

third-party theory defense to be asserted. See Consalvo v. State, 697 So. 2d 805, 813

(Fla. 1996) (holding that even if the State committed a discovery violation by disclosing

to defense counsel during trial the additional results of the fingerprint expert’s analysis

performed one day before trial, the trial court did not err in concluding that the defense

was not prejudiced as there still remained a substantial number of unidentified prints even

after the analysis so that the third-party theory could still be asserted).




                                               8
       Accordingly, because we conclude that no discovery violation was committed by

the State, but that even if there was a discovery violation, it was harmless,5 we affirm

Scott’s convictions.

       AFFIRMED.

COHEN, C.J., and ORFINGER, J., concur.




       5  The State also argues on appeal that while the prosecutor did not immediately
disclose to defense counsel the results of Palacio’s comparison of Register’s fingerprints
to the unidentified latent prints, she advised the court during the Richardson hearing that
she had disclosed the results to defense counsel during Scott’s presentation of his
defense and specifically did so prior to Scott deciding whether to exercise his right to
testify. Thus, the State essentially contends that Scott waived his argument that a
discovery violation occurred by not timely raising it. During the hearing, Scott’s trial
counsel advised the trial court that he had been told by the prosecutor “that [Palacio] was
going to be talking about comparison of Lester Register, that’s it. That’s not disclosure.”
The trial court expressed some skepticism with counsel’s position but made no distinct
factual finding as to whether Scott’s counsel was aware of Palacio’s findings regarding
the lack of Register’s fingerprints prior to Palacio being called as a rebuttal witness. If
defense counsel had been aware of the substance of Palacio’s rebuttal testimony, then
counsel should have raised the alleged discovery violation prior to Palacio’s testimony
and secured a ruling from the court on whether to preclude Palacio from testifying in
rebuttal. A discovery violation can be waived if not timely raised. See Guzman v. State,
42 So. 3d 941, 944 (Fla. 4th DCA 2010). However, in light of our decision today, we find
it unnecessary to address the merits of this argument.



                                            9
