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Legal Pleadings:

Motion to Strike State’s Witness

DEFENDANT’S MOTION FOR RICHARDSON HEARING
AND
MOTION TO STRIKE STATE’S WITNESS

COMES NOW the Defendant, by and through his undersigned counsel, and respectfully moves the Court to strike the State’s Category A witness, S. or S. D., and in support thereof, states as follows:
1. The Defendant, by and through counsel, demanded a speedy trial, pursuant to the Florida Rules of Criminal Procedure, on August 13.
2. The Defendant’s case is currently set for a pre-trial hearing on September 10, with a trial date of September 14.
3. In an e-mail sent at 10:14 a.m. on September 7, the assigned Assistant State Attorney, addressing unrelated trial logistics, stated, “On a different note, Mr. S. (sic) D. – the owner of the check cashing store – was arrested a couple of weeks ago for operating an illegal gambling operation.”
4. Counsel for the Defendant requested, today, via e-mail, records regarding the arrest and prosecution of this witness.
5. The assigned Assistant State Attorney stated he would be able to provide the documents on September 10, the day of the last pre-trial and the same week as the trial.
6. Counsel for the Defendant urged the assigned Assistant State Attorney to provide the documents by the end of business today, September 7, as such a late disclosure was in violation of both the State’s discovery obligations, and the dictates of Brady v. Maryland, 373 U.S. 83 (1963).
7. The assigned Assistant State Attorney replied that “[t]he arrest has nothing to do with this case.”
8. At approximately 3:30 p.m., undersigned counsel was provided material pertaining to the case from a different Assistant State Attorney.
9. On May 31, Mr. D. was arrested for (1) keeping a gambling house and (2) manufacture, own, store, or possessing slot machines, in Duval County Case No: 16-2018-CF-005506.
10. Contrary to the State’s assertion that the arrest was “a couple of weeks ago,” the witness was arrested more than fourteen weeks ago (that is, prior to a number of pretrial hearings held in this case).
11. According to the Affidavit for Arrest Warrant, a copy of which is attached as Exhibit A, the witness has been under criminal investigation for more than nine months.
12. The failure to disclose this information must have been intentional, given the assigned Assistant State Attorney’s relationship with the witness’s case.
13. First, as a matter of course, all witnesses, officers, co-defendants, and defendants are entered into a computerized database, utilized by many State Attorney and Public Defender’s offices, known as STAC. The State Attorney’s Office for the Fourth Judicial Circuit utilizes this program.
14. All discovery exhibits by the State are generated utilizing this software, after the witnesses information is entered into the system.
15. Whenever an individual is arrested who is associated with a case, an e-mail is automatically generated by STAC and sent to the assigned Assistant State Attorney. Such an e-mail was surely sent in this case.
16. Additionally, the arrest warrant in the witness’s case was approved and signed by the Assistant State Attorney assigned to the Defendant’s case. The arrest warrant contains both his printed name, as well as the signature of that attorney under the extradition code section. A copy of the Arrest Warrant is attached as Exhibit B.
17. A bond recommendation form in the witness’s case, dated May 29, bears the name and phone number of the Assistant State Attorney assigned to the Defendant’s case. The bond recommendation form is attached as Exhibit C.
18. An Information, charging the witness with two counts, was signed by that same Assistant State Attorney, on July 16. A copy of the Information is attached as Exhibit D.
19. As is clear from a review of said documents, not only is the assigned Assistant State Attorney aware of the case against the witness, but he is actively involved in its prosecution. Additionally, he is the direct supervisor of the Assistant State Attorney who is assigned to the witness’s case.
20. Counsel for the Defendant could not have discovered this information on its own, as the Office of the State Attorney listed the witnesses name as “S. D.” A search of CORE reveals no results for “S. D.” The witnesses name, according to CORE and the arrest and booking report, is “S. D.” The misspelling of the name (either in the discovery exhibit or the arrest report) precluded the defense from discovering the information on its own.
21. “The constitutional right to confront one’s accuser is meaningless if a person charged with wrongdoing is not afforded the opportunity to make a record from which he could argue to the jury that the evidence against him comes from witnesses whose credibility is suspect because they themselves may be subjected to criminal charges if they fail to ‘cooperate’ with the authorities.” Breedlove v. State, 580 So. 2d 605, 608 (Fla. 1991), quoting Morrell v. State, 297 So. 2d 579, 580 (Fla. 1st DCA 1974).
22. “To establish a Brady violation, a defendant must demonstrate: ‘(1) the State possessed evidence favorable to the accused because it was either exculpatory or impeaching; (2) the State willfully or inadvertently suppressed the evidence; and (3) the defendant was prejudiced.’” Mordenti v. State, 894 So. 2d 161, 169 (Fla. 2004), quoting Allen v. State, 854 So. 2d 1255, 1259 (Fla.2003).
23. The evidence of the witnesses pending charges is clearly admissible, impeaching, and its disclosure is required.
24. “When a prosecution witness is under criminal charges at the time he testifies, the defense is entitled to bring this fact out.” Fulton v. State, 335 So. 2d 280, 283 (Fla. 1976).
25. “It is clear that if a witness for the State were presently or recently under actual or threatened criminal charges or investigation leading to such criminal charges, a person against whom such witness testifies in a criminal case has an absolute right to bring those circumstances out on cross-examination.” Morrell v. State, 297 So. 2d 579, 580 (Fla. 2d DCA 1974).
26. In this case, according to the Affidavit for Arrest Warrant, not only has the witness been under investigation since December 4, but was arrested more than three months ago.
27. Indeed, it is anathema to suggest that such motivation to alter testimony would not be even stronger where the witness is being examined by the Assistant State Attorney who approved his arrest warrant and is supervising his current prosecutor, in addition to having signed the formal charging document.
28. “The trial court’s failure to conduct a Richardson hearing is reversible error unless a reviewing court can say beyond a reasonable doubt that the defense was not procedurally prejudiced.” Moorer v. State, 133 So. 3d 1242, 1242 (Fla. 4th DCA 2014).
29. The three prongs of a Richardson hearing are: “(1) whether the discovery violation was inadvertent or willful; (2) whether it was trivial or substantial; and (3) whether noncompliance with the discovery requirements prejudiced the defense’s ability to prepare for trial. Thomas v. State, 63 So. 3d 55, 59 (Fla. 4th DCA 2011) (citing State v. Evans, 770 So. 2d 1174, 1182 (Fla. 2000)).
30. The discovery violation, in this case, is clearly willful.
31. Furthermore, the violation is substantial, as the witness is the only witness, outside of law enforcement, alleged to have personally interacted with the Defendant. Furthermore, his testimony is crucial to the State’s case, and the Defendant has been deprived of a meaningful and substantial opportunity to research these charges and fully impeach the witness.
32. Willful non-compliance has prejudiced the defense’s ability to prepare for trial.
33. “[T]he defense is procedurally prejudiced if there is a reasonable possibility that the defendant’s trial preparation or strategy would have been materially differed had the violation not occurred.” State v. Schopp, 653 So. 2d 1016, 1020 (Fla.1995).
34. Florida Rule of Criminal Procedure 3.220(n)(1) provides that, “[i]f, at any time during the course of the proceedings, it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant to an applicable discovery rule, the court may … prohibit the party from calling a witness not disclosed or introducing in evidence the material not disclosed.”
35. “Willful violation by counsel or a party not represented by counsel of an applicable discovery rule, or an order issued pursuant thereto, shall subject counsel or the unrepresented party to appropriate sanctions by the court.” Fla. R. Crim. P. 3.220(n)(2).
36. The State has clearly committed a Brady violation and made little effort to ameliorate the violation. The information was surely known personally to the assigned Assistant State Attorney. As noted, due to misspelling the witnesses name, counsel for the Defendant was unable to obtain the information independently.
37. The Defendant has been prejudiced by being forced to spend time, in the lead up to trial, investigating the witness more fully, obtaining and searching for further information and Brady material, by not having the opportunity to investigate other potential witnesses at the convenience store, and making the decision not to depose the witness in advance of trial.
38. The Defendant, due to the State’s malfeasance, absent exclusion of the witness, must now decide whether to give his attorneys a meaningful opportunity to investigate the matter and depose the witness and request a continuance, which will result in him continuing to languish in jail for a crime he did not commit, or proceeding absent such an investigation.
39. For all of these reasons, the Defendant has been prejudiced by the blatant and willful disregard by the State of its responsibilities and obligations under the discovery rules and the Constitution. Principles of fairness and justice, as well as the Florida Rules of Criminal Procedure, dictate that exclusion of the witness is the only appropriate remedy, as there is no other remedy that will not subject the Defendant into choosing between a fully investigated case, and his continued detention for a crime he did not commit.
WHEREFORE, it is respectfully requested that this Motion be granted, and the Court strike S. D. or S. D. as a State Category A witness and grant any other relief this Honorable Court deems necessary and proper in light of the State’s discovery violation.