        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                          KENEIL O. DENTON,
                              Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D17-618

                              [May 2, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Laura S. Johnson, Judge; L.T. Case No. 50-2016-CF-
005299-AXXX-MB.

   Carey Haughwout, Public Defender, and Stacey Kime, Assistant Public
Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina
Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for
appellee.

LEVINE, J.

   The primary issue in this case was identity. After the victim’s house
was burglarized, fingerprints and DNA samples were taken from the crime
scene. Eventually, appellant—then in custody for unrelated offenses—was
charged with the burglary. At trial, the evidence connecting appellant to
the burglary consisted of a fingerprint found at the crime scene and the
victim’s identification of appellant as someone he had seen in the
neighborhood on several occasions. Based on this evidence, appellant was
found guilty of burglary.

   Appellant appeals his conviction. He raises three issues, but we
address only one: whether the state’s untimely production of an
exculpatory or impeaching crime scene DNA report warrants reversal.
Here, the state’s production of the initial letter referencing a DNA test
conducted by a third-party lab, its untimely production of the report
containing the results of that third-party test, and the state’s actions
regarding the DNA report lulled appellant into inaction. Because this rose
to the level of a Brady violation, we reverse the conviction and remand for
a new trial.

    Roughly two weeks before trial, the state filed a supplemental witness
list identifying a Palm Beach County Sheriff’s Office (“PBSO”) forensic
scientist as a potential trial witness. Attached to this notice was a letter
from the forensic scientist explaining that a DNA analysis had been
conducted and a third-party DNA report forwarded to PBSO for review and
entry into its database.

   After receiving this notice and the attached letter, defense counsel
emailed the prosecutor to ask whether there was any DNA tested in the
case linking appellant to the robbery. The prosecutor responded that she
did not know whether any testing had been done. Defense counsel did not
receive the DNA report referenced in the letter at this time.

   The issue of DNA reports arose again at trial. There, the state reiterated
that it had “no report as to any DNA whatsoever.” The state did not
introduce any DNA reports into evidence, nor did it call the PBSO forensic
scientist to testify. Instead, it relied primarily on fingerprint evidence and
the victim’s testimony to establish appellant as the burglar. The jury
returned a guilty verdict on the burglary charge.

   Alleging a Brady violation, defense counsel moved for a new trial. At
the hearing on appellant’s motion for new trial, the PBSO forensic scientist
testified regarding the report referenced in her letter. She explained that
the report did not contain allele matches consistent with appellant’s DNA.
Rather, the genetic profile from the scene returned a “major profile”
consistent with the victim and a second, “minor profile” that did not
contain alleles matching appellant’s profile.

   Maintaining that no discovery violation had occurred, the trial court
denied appellant’s motion and adjudicated him guilty on the burglary
charge. This appeal follows.

   We conduct independent appellate review of whether a Brady violation
has occurred. Geralds v. State, 111 So. 3d 778, 787 (Fla. 2010). In doing
so, we defer to the trial court on questions of fact, review de novo the
application of the law to those facts, and independently review the
cumulative effect of any evidence that was suppressed. Id.

   The seminal case of Brady v. Maryland, 373 U.S. 83 (1963), requires
the state to disclose material information within its possession or control
that is favorable to the defense. A Brady violation occurs when the

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defendant can show that the state suppressed evidence and “(1) the
evidence was either exculpatory or impeaching; (2) the evidence was
willfully or inadvertently suppressed by the State; and (3) because the
evidence was material, the defendant was prejudiced.” Davis v. State, 136
So. 3d 1169, 1184 (Fla. 2014).

    The forensic scientist’s testimony at the post-trial hearing establishes
the DNA report as exculpatory or impeaching Brady evidence. The report
contained two genetic profiles, neither of which was consistent with
appellant’s profile. In this regard, it was “favorable” to appellant and
therefore had exculpatory or impeaching value, as it cast doubt on the
evidence presented as well as the strength of the state’s case. See Way v.
State, 760 So. 2d 903, 910 (Fla. 2000) (stating that evidence meets the first
prong of Brady “merely if it is ‘favorable to the accused, either because it
is exculpatory, or because it is impeaching’”) (quoting Strickler v. Greene,
527 U.S. 263, 280 (1999)).

    In this case, the burglar’s identity was at issue and the sole identifying
evidence was a contested fingerprint and the victim’s testimony that
appellant was his neighbor’s friend and often in the area. Under these
circumstances, the DNA report casting doubt upon appellant’s presence
at the crime scene constituted exculpatory or impeaching Brady evidence.

    The second prong of Brady is the state’s willful or inadvertent
suppression of evidence. Davis, 136 So. 3d at 1184. Generally, there is
no Brady violation “where the information is equally accessible to the
defense and the prosecution, or where the defense either had the
information or could have obtained it through the exercise of reasonable
diligence.” Provenzano v. State, 616 So. 2d 428, 430 (Fla. 1993).

   Here, however, there was no such equal access and the state’s
responses to defense counsel’s requests for information amounted to
suppression in that the responses lulled the defense into believing that
there were no DNA results. While the state did provide a letter referencing
the DNA report, the prosecutor subsequently and repeatedly misinformed
defense counsel by asserting that no DNA testing had been done in this
case. In reliance on the state’s declarations that no DNA report existed,
defense counsel apparently did not attempt to locate or subpoena the
report referenced in the forensic scientist’s letter.

   Since appellant was told that the crime scene DNA was not tested, he
could not have known or had access to the potentially exculpatory or
impeaching DNA report that was available to the state. Thus, any “notice”
provided by the forensic scientist’s letter was rendered ineffective by the

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state’s repeated incorrect assertion that it had not received a DNA report
and the report was effectively suppressed. See id.

   Finally, the suppressed DNA report here satisfies Brady’s materiality
prong. See Davis, 136 So. 3d at 1184. Evidence is material for Brady
purposes if there is a reasonable probability that, had the evidence been
disclosed, the result of the proceeding would have been different. Allen v.
State, 854 So. 2d 1255, 1260 (Fla. 2003). Here, there is a reasonable
probability that, had the defense received the DNA report, it would have
called the forensic scientist to testify and cast doubt on the state’s case.

    As demonstrated by the scientist’s testimony at the hearing on a motion
for new trial, she would have testified that the DNA report’s “minor profile”
alleles were not the same as the alleles in appellant’s DNA profile. Given
that identity was the main issue at trial, this sort of testimony could have
reasonably affected the outcome of the proceeding, so the suppressed
report was material. See id.

    In this case, a number of factors uniquely converged so as to give rise
to a Brady violation. The state, after producing a letter acknowledging the
existence of a DNA report in PBSO’s possession, repeatedly told defense
counsel that it had no such report and that no DNA testing had occurred.
In fact, the state had in its constructive possession a report containing the
results of DNA tests run by a third-party lab. As PBSO’s forensic scientist
noted at a post-trial hearing, the suppressed DNA report contained two
genetic profiles from the crime scene sample, but neither was consistent
with appellant’s profile. Because such evidence could have reasonably
changed the outcome of this forensically driven case, we reverse
appellant’s burglary conviction and remand the case for a new trial.

   Reversed and remanded.

WARNER and GROSS, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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