       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                       JAMIE DEANDRE BROWN,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D13-2937

                              [May 20, 2015]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Charles E. Burton, Judge; L.T. Case No. 50-2012-CF-
012801-AXXX-MB.

   Carey Haughwout, Public Defender, and Ian Seldin, 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.

STEVENSON, J.

    Defendant challenges his convictions for sale of cocaine and two counts
of sale of a schedule I drug, arguing that a discovery violation by the State
and the trial court’s resulting failure to conduct an adequate Richardson
hearing compel reversal. We agree.

    Defendant’s convictions arose from the sale of drugs to the same
undercover officer on November 14, 2012, and again on November 20,
2012, at the same location, a Burger King. According to the undercover
officer, the first sale took place in the parking lot and the second in the
bathroom. At trial, the undercover officer identified defendant as the man
who sold him the drugs, testifying that, at the time, defendant had a very
distinctive hair style—two long dreads pulled off to the side of his head.
The undercover officer had recorded the two drug buys and the videos were
introduced into evidence. Neither video, however, clearly depicts the seller
and the date stamps on the videos did not match the dates of the drug
buys. According to the officer, this discrepancy was due to the fact that,
at the time, he did not know how to change the camera’s setting.
   At the outset of the trial, the State advised the court that, following
defendant’s December 2012 arrest, defendant gave a video-recorded
statement to the same undercover officer to whom defendant was alleged
to have sold the drugs. During the interview, defendant admitted he had
twice met the officer at Burger King, nodding when the officer indicated
the first time had been in the parking lot and the second in the bathroom.
The State wanted to introduce the recorded interview.

   Defense counsel objected. He acknowledged the State had provided
him a copy of this video statement as part of the discovery submissions in
other pending cases and that he reviewed the video, but asserted he had
no idea the State had intended to introduce the video at this trial. Defense
counsel asserted that his defense was that defendant had been
misidentified, noting the recordings of the two drug buys did not clearly
show the seller’s face. Without conducting an inquiry into the reasons for
the State’s failure to provide defendant’s video statement as part of the
discovery in this case, the trial court ruled the tape was admissible.

   Thereafter, the undercover officer testified he had interviewed
defendant following his arrest, and defendant acknowledged having
previously met the officer in Burger King’s parking lot and bathroom.
When the State sought to play the video for the jury, defense counsel again
objected, arguing the State had committed a discovery violation and
insisting the defense was prejudiced as the video undermined the
misidentification defense. The trial court ruled there was no discovery
violation as the video had been provided to defense counsel in connection
with other cases. It is this ruling that forms the basis for defendant’s
appeal.

    “‘A Richardson hearing is required when there is a possible discovery
violation in order to flesh out whether there has indeed been a discovery
violation.’” Thomas v. State, 63 So. 3d 55, 59 (Fla. 4th DCA 2011) (quoting
Landry v. State, 931 So. 2d 1063, 1065 (Fla. 4th DCA 2006)). To conduct
a Richardson hearing, “‘the trial court must inquire 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.
(quoting State v. Evans, 770 So. 2d 1174, 1183 (Fla. 2000)). 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. See Kipp v. State, 128 So. 3d 879, 881 (Fla. 4th DCA 2013); see
also Barrett v. State, 649 So. 2d 219, 222 (Fla. 1994).

   The trial court’s failure to conduct a required Richardson hearing is not

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reversible error per se. See, e.g., M.H. v. State, 151 So. 3d 32, 37 (Fla. 3d
DCA 2014). But, where there has been an inadequate Richardson hearing,
the discovery violation can be found harmless “‘[o]nly if the appellate court
can say, beyond a reasonable doubt, that the defense was not procedurally
prejudiced by the discovery violation . . . .’” Id. (quoting Acosta v. State,
856 So. 2d 1143, 1145 (Fla. 4th DCA 2003)). “[I]t is the State’s burden to
show that the error was harmless, the State must show in the record that
the defendant was not prejudiced by the discovery violation.” Casica v.
State, 24 So. 3d 1236, 1241 (Fla. 4th DCA 2009). “The state’s burden to
show a discovery violation to be harmless is ‘extraordinarily high.’” Kipp,
128 So. 3d at 883 (quoting Hicks v. State, 45 So. 3d 518, 524 (Fla. 4th
DCA 2010) (quoting Cox v. State, 819 So. 2d 705, 712 (Fla. 2002))).

    In the instant case, the State committed a discovery violation when it
failed to list defendant’s video statement to police in its discovery
submissions in this case. Florida Rule of Criminal Procedure 3.220
requires the State to provide names of witnesses present when recorded or
unrecorded statement are taken from or made by defendant and to provide
any written or recorded statements made by defendant, together with the
names of witnesses to the statements. See Fla. R. Crim. P. 3.220(b)(1)(A)(i),
(C). “[A] defendant is entitled to rely on the accuracy of the information
disclosed by the prosecution pursuant to a discovery request under rule
3.200.” McArthur v. State, 671 So. 2d 867, 870 (Fla. 4th DCA 1996). The
“[f]ailure to give all of the required information is a discovery violation.”
Kucher v. State, 758 So. 2d 1165, 1166 (Fla. 2d DCA 2000). Moreover,
“[t]he fact that the existence of the statement was previously revealed to
the defendant does not mean that the state complied with the discovery
rules.” D.R. v. State, 588 So. 2d 327, 328 (Fla. 4th DCA 1991) (finding
error in trial court’s refusal to hold a Richardson hearing and rejecting
State’s argument that there was no discovery violation because statement
had been disclosed a month earlier during a hearing).

    In the face of the commission of a discovery violation, the trial court
was required to conduct a Richardson hearing and required to inquire (1)
whether the violation was willful or inadvertent; (2) whether the violation
was trivial or substantial; and (3) whether the violation had a prejudicial
effect on the defendant’s trial preparation. State v. Evans, 770 So. 2d
1174, 1183 (Fla. 2000). Here, having found there was no discovery
violation, the trial court failed to make any inquiry regarding the first two
factors, rendering the hearing inadequate. Further, rather than put the
burden on the State to demonstrate the lack of procedural prejudice to the
defense, the trial court inquired only of the defense. See Cliff Berry, Inc. v.
State, 116 So. 3d 394, 418 (Fla. 3d DCA 2012) (recognizing Richardson
inquiry is inadequate where trial court did not require State to

                                      3
demonstrate lack of procedural prejudice, but, instead, shifted burden to
defendant), review denied sub nom. State v. Smith, 133 So. 3d 528 (Fla.
2014); Thomas, 63 So. 3d at 59 (noting that trial court’s “imposing the
burden on the defendant to demonstrate prejudice instead of determining
the circumstances of the discovery violation and requiring the State to
demonstrate lack of prejudice to the defendant, does not satisfy the
procedure contemplated by Richardson”). Having reviewed the record, we
conclude the State cannot meet its burden of establishing that the absence
of an adequate Richardson hearing was harmless and that, beyond a
reasonable doubt, defendant suffered no procedural prejudice.

   A defendant 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. Trial preparation or strategy
      should be considered materially different if it reasonably could
      have benefited the defendant.”

Thomas, 63 So. 2d at 59 (quoting State v. Schopp, 653 So. 2d 1016, 1020
(Fla. 1995)). Stated another way, “[a]n 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.’” Durrance v. State, 44 So. 3d 217, 221 (Fla. 4th DCA 2010)
(quoting Scipio v. State, 928 So. 2d 1138, 1149 (Fla. 2006)).

    The video of defendant’s statement to police did more than just give the
jury the opportunity to look at defendant’s face and distinctive hair as he
appeared nearer in time to the charged offenses. In the video, the
defendant admitted to having met the undercover officer twice at Burger
King, once in the parking lot and once in the bathroom. These statements
wholly undermined any possibility of a defense resting on the premise that
the undercover officer misidentified the defendant as the perpetrator and
confirmed the officer’s testimony regarding the details of the transactions.
Had defense counsel known of the State’s intent to introduce the
statement to the undercover officer, he would certainly have abandoned a
mistaken identity defense, which was assured of failing, and prepared
differently for trial. In closing argument, defense counsel reminded the
jury that the dates on the recordings of the drug buys did not match the
dates of the drug sales testified to by the undercover officer. He also
pointed out that the defendant’s “statement” admitting to meeting the
undercover officer in the parking lot and bathroom was nothing more than
a head nod, suggesting the nod was the result of defendant’s fear. These

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theories could have been more fully developed had defense counsel been
made aware prior to trial of the State’s intention to introduce defendant’s
statement to the undercover officer. The State thus cannot meet its
burden of demonstrating that the failure to conduct an adequate
Richardson hearing was harmless. See Thomas, 63 So. 3d at 59 (“[T]he
harmless error standard for a State discovery violation does not focus on
the discovery violation’s effect on the verdict; instead, the inquiry is
whether there is a reasonable possibility that the discovery violation
materially hindered the defendant’s trial preparation or strategy.” (citing
Scipio, 928 So. 2d at 1149–50)).

   Accordingly, defendant’s convictions are reversed, and the matter is
remanded for a new trial.

   Reversed and Remanded.

CIKLIN and KLINGENSMITH, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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