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Scott v. State

Florida Court of Appeals, Fifth District

November 17, 2017

DANIEL SCOTT, Appellant,
v.
STATE OF FLORIDA, Appellee.

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

         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.

          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 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 defense[1] 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 Richardson[2] 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 ...


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