       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                             JAMES CLARK,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D11-4357

                              [March 2, 2016]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach  County;    John     Kastrenakes,     Judge;   L.T.    Case    No.
2011CF000175AXX.

  Benjamin S. Waxman of Robbins, Tunkey, Ross, Amsel, Raben &
Waxman, P.A., Miami, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

   In appealing his conviction for DUI manslaughter, appellant raises
multiple issues, mainly dealing with the use of a police officer as an expert
in accident reconstruction, as well as the trial court’s failure to grant a
challenge for cause to a juror and improper closing argument by the State.
These errors were not properly preserved before the trial court and do not
constitute fundamental error, thereby requiring affirmance of the
conviction and sentence.

   The accident giving rise to the charges occurred one evening on Yamato
Road in Palm Beach County, a four-lane divided road. The elderly victim
was attempting to make a u-turn from the eastbound u-turn lane. She
inched out into oncoming traffic and was struck by appellant, who was
driving westbound. The victim died in the accident. Appellant’s blood
alcohol level was between 0.135 and 0.145 milligrams per hundred
milliliters of blood, exceeding the legal limit of 0.08.
   At trial, the State presented two traffic homicide investigators. The first
investigator, who had been on the scene, described the damage to the
vehicles, as well as the tire tracks and location of the vehicles at rest.
Based upon his observations, he thought speed was a contributing factor
to the accident. He had also encountered appellant and smelled alcohol
on his breath. The second traffic investigator performed an accident
reconstruction to determine the speed of the vehicles. He testified that in
his opinion, appellant was travelling eighty-two miles per hour at impact.
He opined that had appellant been driving at the forty-five miles per hour
speed limit, the accident would not have happened.

   To counter that testimony, the defense presented an accident
reconstruction expert to testify that, based upon the crush of the vehicles,
appellant could not have been travelling at eighty-two miles per hour. He
testified that the collision was unavoidable.

    In rebuttal, the State recalled the first traffic investigator to rebut the
defense expert’s testimony with respect to the crush analysis. The defense
claimed surprise, as this witness had not been listed as an expert witness.
Counsel asked for a Richardson1 hearing, which the court conducted. The
State admitted that nothing in the first investigator’s testimony concerned
the method and manner of crush damage. The court asked if there was
any information provided by any other expert that would have put the
defendant on notice that the State disputed how the defense expert
conducted his crush analysis and speed calculation. The State noted that
it had offered its own accident reconstruction expert, and the defense had
deposed him.

   The court found that there had been a discovery violation and that the
use of a different witness (the first investigator for the accident
reconstruction expert) was intentional. Regarding procedural prejudice,
defense counsel maintained that he was prejudiced because he didn’t
know what the first investigator would say in rebuttal. But the State
countered that it had always intended to use the accident
reconstructionist who had offered opinions on crush factors. The court
then suggested that an adjournment for the day would allow the defense
to have an opportunity to speak to the first investigator. Defense counsel
rejected that remedy, saying he needed only five or ten minutes to talk
with the investigator. The judge then recessed the court. When court
reconvened, the court asked defense counsel whether he was prepared to
proceed, and counsel responded affirmatively. The trial continued, leading

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


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to a guilty verdict. From the conviction and sentence, appellant brings
this appeal.

   Appellant first claims that the court erred in failing to conduct an
adequate Richardson hearing. See Richardson, 246 So. 2d at 775-76. We
find this to be without merit, as the trial court agreed that there had been
a Richardson violation and provided appellant with a remedy. The defense
counsel declined an adjournment, opting for a short recess to talk to the
expert. After speaking to the expert, defense counsel pronounced himself
ready to proceed. No further objection was made.

      The factors that a court needs to consider when conducting a
      Richardson hearing to determine if a discovery violation has
      occurred are: 1) whether the violation was inadvertent or
      willful; 2) whether it was trivial or substantial, and most
      importantly; 3) whether it has prejudiced the opposition’s
      ability to prepare for trial.

Irish v. State, 889 So. 2d 979, 981 (Fla. 4th DCA 2004). Where a violation
has occurred, exclusion of evidence or a witness may be a remedy but
“should only be imposed where there is no other adequate remedy.”
McDuffie v. State, 970 So. 2d 312, 321 (Fla. 2007).

   A Richardson violation is subject to a harmless error analysis. M.N. v.
State, 724 So. 2d 122, 124 (Fla. 4th DCA 1998). State v. Schopp, 653 So.
2d 1016 (Fla. 1995), instructs on the evaluation of harmless error on
appeal:

         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. Trial preparation or strategy should be considered
      materially different if it reasonably could have benefited the
      defendant. In making this determination every conceivable
      course of action must be considered. If the reviewing court
      finds that there is a reasonable possibility that the discovery
      violation prejudiced the defense or if the record is insufficient
      to determine that the defense was not materially affected, the
      error must be considered harmful. In other words, only if the
      appellate court can say beyond a reasonable doubt that the

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      defense was not procedurally prejudiced by the discovery
      violation can the error be considered harmless.

Id. at 1020–21.

   Here, the trial court determined that there was a discovery violation
and gave defense counsel the remedy he requested—to talk with the State’s
investigator. After availing himself of this opportunity, defense counsel
pronounced himself ready to proceed. If defense counsel needed more time
or determined that the remedy was inadequate, it was incumbent on
counsel to notify the court of any inadequacies. Because counsel was
ready to proceed, we can clearly state that any Richardson violation was
harmless beyond a reasonable doubt under the standard of State v.
DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).

   In addition, appellant claims that the trial court committed
fundamental error in allowing the first investigator to testify as an expert
in crush analysis and speed when the qualifications of the officer to so
testify were not placed in evidence. The defense never argued below that
the investigator was not qualified to render an opinion on crush or speed
change, and instead argued a discovery violation. The issue therefore was
not preserved. See Anderson v. State, 863 So. 2d 169, 181 (Fla. 2003)
(holding that a claim was not preserved for review where the defense failed
to object on the specific grounds advanced on appeal). Moreover, not only
was the investigator’s testimony not objected to, he had already testified
to his extensive qualifications in accident reconstruction and speed
analysis in the State’s case, even though he was not tendered as an expert.
Therefore, it appears from the record that he was qualified to testify.

    Nor would any omission of his qualifications amount to fundamental
error, as there is no claim that it “reach[ed] down into the validity of the
trial itself to the extent that a verdict of guilty could not have been obtained
without the assistance of the alleged error.” State v. Delva, 575 So. 2d
643, 644 (Fla. 1991) (quoting Brown v. State, 124 So. 2d 481, 484 (Fla.
1960)); see also Daniels v. State, 121 So. 3d 409, 417 (Fla. 2013). This is
unlike Wright v. State, 348 So. 2d 26 (Fla. 1st DCA 1977), relied on by
appellant, which concluded that it was fundamental error to allow a
medical examiner to testify regarding premeditation in a murder case, for
which he was unqualified to give an opinion. Id. at 31. As this was the
only evidence of premeditation in Wright, the error satisfied the definition
of fundamental error, in that the verdict could not have been obtained
without the medical examiner’s testimony. Id. In this case, in contrast,
there was substantial other evidence from which the jury could have
reached its verdict.

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   Also unpreserved is appellant’s contention that the trial court erred in
denying his challenge for cause to a juror. In order to preserve such issues
for appeal, a defendant must object to the juror, exhaust all peremptory
challenges, request an additional challenge, and identify a specific juror
that he or she would have excused if given an additional challenge. See
Matarranz v. State, 133 So. 3d 473, 482 (Fla. 2013). Here, although
defense counsel requested a challenge for cause as to a juror, exhausted
his peremptory challenges, and asked for an additional one, he did not
identify a specific juror upon whom he would have exercised a challenge if
available. Therefore, we do not address this issue on the merits.

    Likewise, appellant’s claims of prosecutorial misconduct in closing
argument were not preserved by contemporaneous objection and were not
fundamental error. The one objection made to the State’s use of a
photograph of the victim, which had been taken five months before the
collision, was not error. The defense objected as “facts not in evidence” to
the prosecutor’s representation that the photograph was taken five
months before the accident. During the trial, the photograph had been
admitted without objection, and the court had announced to the jury at
the time of its admission that it reflected the victim “as she appeared in
life.” Even if the exact date of the photograph was not strictly in evidence,
we conclude that no reversible error occurred.

   Appellant did preserve his objection to the court’s prohibition of a lay
witness in offering her opinion as to whether the victim’s turn into traffic
was unusual. However, it appears in the record that defense counsel
rephrased the question and the witness was able to testify what was
unusual about the victim’s turn. Therefore, no reversible error occurred.

   Finally, appellant’s challenge to the court’s failure to give a defense
instruction on his theory of defense was not preserved and was, in fact,
waived when the defense withdrew the instruction. We also reject
appellant’s claim that the jury instruction on causation was incomplete
and inaccurate.

   For the foregoing reasons, we affirm the conviction and sentence.

STEVENSON and FORST, JJ., concur.

                            *         *        *

   Not final until disposition of timely filed motion for rehearing.



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