The opinion
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LYNESHA DELORES ETIENNE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D21-2599
[February 8, 2023]
Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; Jill Levy, Judge; L.T. Case No. 20-005939MM10A.
Joseph Zager of Zagerlaw, P.A., Fort Lauderdale, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Luke R. Napodano,
Senior Assistant Attorney General, West Palm Beach, for appellee.
ON MOTION FOR REHEARING AND CLARIFICATION
LEVINE, J.
We grant appellant’s motion for clarification, deny the motion for
rehearing, withdraw our prior opinion, and substitute the following in its
place.
Appellant, Lynesha Etienne, appeals her conviction and sentence for
battery, alleging the trial court erred in failing to hold a Richardson
hearing. The victim testified that he gave allegedly threatening messages
he had received from appellant to a prior prosecutor, but those messages
were not provided to appellant in discovery. Although the trial court erred
in failing to hold a Richardson hearing in light of a possible discovery
violation, we nevertheless affirm because the error was harmless. We write
to reiterate the need to hold a Richardson hearing when a potential
discovery violation occurs. Further, whether the discovery violation is
“intentional” or “harmful” to appellant is one of the purposes of conducting
a Richardson hearing, and a trial court’s belief that a discovery violation is
unintentional or harmless cannot act as a substitute for holding a
Richardson hearing when required.
Appellant was charged with battery following an altercation between
her and the victim. The victim was appellant’s previous coworker with
whom appellant had been in a relationship. The victim alleged that
appellant had been constantly calling and sending the victim messages as
well as making false accusations about the victim to his employer. The
victim testified that he and his father went to appellant’s house to speak
with appellant and her mother to discuss things before they went to the
police.
The father approached appellant’s house while the victim stayed back
and video recorded the interaction with his cell phone. The victim stated
that appellant walked out of the house towards the victim. Appellant then
struck and kicked the victim, spit on his vehicle, and knocked the victim’s
phone out of his hands that the victim was using to film the interaction.
During the victim’s testimony, defense counsel asked him about the
“threatening” messages appellant had sent the victim. The victim stated
he had printed the messages to try and get a restraining order against
appellant. Defense counsel asked the victim if he had given those
messages to the state. The victim testified that he had sent the messages
to the initial prosecutor and that a subsequent prosecutor acknowledged
receipt of the messages. The prosecutor who acknowledged receipt was
not the prosecutor present at trial, who was unaware of the messages.
Thereafter, a bench conference was held. Defense counsel stated he
did not have any of the referenced messages. The prosecutor at trial was
also not aware of the messages. The prosecutor double checked the
prosecution’s file but did not find the messages. Defense counsel argued
that this was a “huge Richardson violation” because the state did not
provide appellant with these messages. The state argued that this was not
a “Richardson hearing” situation because it was not intentional conduct
by the state. The trial court asked defense counsel how the omitted
discovery was favorable to appellant. The court suggested that defense
counsel question the victim about the messages and stated, “If they came
from [appellant,] [appellant] has them and she’s lying.”
The court did not conduct a Richardson hearing. Appellant asked for a
mistrial, and the trial court denied the motion.
On cross-examination, the victim was shown a screenshot of messages
between him and appellant. The screenshot allegedly showed the victim
apologizing to appellant for threatening her. The victim stated that the
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screenshot was missing messages “in between” and that he was not
apologizing for threatening appellant.
Appellant testified and denied ever threatening the victim and further
stated that the alleged messages did not exist. Appellant stated that the
victim had previously hit and threatened her, which made her feel unsafe
and caused her to act the way she did during the incident in question.
Appellant entered into evidence the messages which she alleged showed
the victim apologizing for threatening her. Appellant said that the
messages were an accurate depiction, and the victim was, in fact,
apologizing for threatening her.
Appellant also admitted in cross-examination to striking the victim,
although she claimed it was in self-defense:
Q I’m asking you about in the video and that day you made
threatening comments about hitting him, correct? You?
A I believe so, yes, me.
Q And you then hit him, correct?
A After he struck me first, yes.
Q Okay, but you hit him, correct?
A Yes.
The jury found appellant guilty of battery. This appeal follows.
We review a trial court’s decision whether to hold a Richardson hearing
for abuse of discretion. Teets v. State, 321 So. 3d 841, 845 (Fla. 4th DCA
2021).
“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.” Guy v. State, 287 So. 3d 620, 625 (Fla. 4th DCA 2019) (citation
omitted). Here, it is clear there was a possible discovery violation
necessitating a Richardson hearing when the victim announced that he
had previously provided discoverable material to the state which was not
given to appellant.
This court’s decision in Ferrari v. State, 260 So. 3d 295 (Fla. 4th DCA
2018), is instructive. In Ferrari, a witness admitted to wearing a wire
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during a conversation with a co-defendant. Id. at 307. Both parties were
surprised by this revelation. Id. After further investigation, the state
found that multiple tapes existed which were not provided in discovery.
Id. This court found that the trial court erred in concluding that no
discovery violation had occurred. Id. at 311.
Like in Ferrari, the fact that the trial prosecutor here was unaware of
the existence of the evidence was not dispositive. As soon as the victim
testified that he had given the messages to the state, a “possible discovery
violation” had occurred, which required further inquiry by the trial court.
Guy, 287 So. 3d at 625. It is irrelevant that the victim gave the messages
to a prior prosecutor and the trial prosecutor did not have them, since the
state is charged with constructive knowledge or possession of the text
messages:
The fact that the assistant state attorney who tried the case
was unaware of the violation is not a defense. The state is
charged with constructive knowledge of information in the
hands of law enforcement officers. Likewise, an assistant
state attorney is charged with knowledge of information held
by other lawyers and agents working in the state attorney’s
office.
Curry v. State, 1 So. 3d 394, 399 (Fla. 1st DCA 2009) (citation omitted).
The state also argued that because the violation was not intentional, no
Richardson hearing was required. This is incorrect. Rather, whether the
violation was intentional is a factor to be determined by the trial court
when conducting a Richardson hearing. A Richardson hearing includes
the following: “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.” Brown v. State, 165 So. 3d 726, 728-29 (Fla.
4th DCA 2015) (citation omitted). Thus, while the trial court could have
considered the fact that the state did not intentionally deprive appellant of
evidence during the Richardson hearing, the trial court was still required
to conduct a Richardson hearing and examine all factors in full.
Further, the evidence does not have to be favorable to a defendant to
necessitate a Richardson hearing, as suggested by the trial court.
Evidence which is harmful to a defendant can serve as the basis of a
discovery violation when it affects the way a defendant would have
prepared for trial. For example, in Brown, we found the state committed
a discovery violation by failing to list the defendant’s video admission that
he had met with undercover officers at the scene of the crime in a
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prosecution for sale of drugs to an undercover officer, where the defendant
argued at trial that he had been mistakenly identified. 165 So. 3d at 728-
29. Even though this evidence obviously did not benefit the defendant,
the defendant was still deprived of information to which he was entitled.
Id. at 729. Thus, it constituted a discovery violation which necessitated a
Richardson hearing. Id. This court also found that the trial court’s error
in failing to conduct a Richardson hearing was not harmless because it
“procedurally prejudiced” the defendant’s trial preparation by “wholly
undermin[ing]” the defendant’s defense of mistaken identity. Id. at 730.
In this case, even though the trial court erred by failing to conduct a
Richardson hearing, we nevertheless find that the error does not require
reversal as it was harmless. “The trial court’s failure to conduct a required
Richardson hearing is not reversible error per se.” Brown, 165 So. 3d at
729. Harmless error analysis applies to a trial court’s failure to conduct a
Richardson hearing following a possible discovery violation. “[T]he failure
to conduct an adequate Richardson hearing can be harmless, but ‘[o]nly if
the appellate court can say, beyond a reasonable doubt, that the defense
was not procedurally prejudiced by the discovery violation.’” Flores v.
State, 872 So. 2d 441, 443 (Fla. 4th DCA 2004) (citation omitted). “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.’” Brown, 165 So. 3d at 730 (emphasis
added) (citation omitted). “An 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.” Scipio v. State, 928 So. 2d 1138, 1149 (Fla. 2006). The state’s
burden in proving that the error was harmless is “extraordinarily high.”
Hicks v. State, 45 So. 3d 518, 524 (Fla. 4th DCA 2010) (citation omitted).
The trial court’s error in failing to hold a Richardson hearing in this
case was clearly harmless. The state’s evidence included a video of the
incident, which corroborated the victim’s version of events, and showed
appellant hitting the victim. Appellant also admitted to battering the
victim. The state’s evidence without the alleged messages was sufficient
to convict appellant of battery. Additionally, appellant’s trial preparation
was not procedurally prejudiced without the alleged messages. Appellant’s
sole theory at trial was that she acted in self-defense. Appellant does not
argue on appeal how she would have pursued a different defense or trial
strategy if she had possession of the alleged messages. See Pender v. State,
700 So. 2d 664, 667 (Fla. 1997) (finding error in failing to conduct a
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Richardson hearing harmless where the forgone evidence “did not contain
anything that could have supported a defense other than that taken by the
defendants”). Appellant was able to present exculpatory evidence of the
victim allegedly apologizing for threatening her, while the state was not
able to produce or corroborate any of the inculpatory evidence of threats
by appellant. In fact, the state’s failure to introduce the alleged messages
benefitted appellant because she was able to argue that the messages did
not exist. Unlike Brown, appellant’s argument that she acted in self-
defense was not “wholly undermined” by the state’s failure to provide the
threatening messages appellant sent to the victim. Brown, 165 So. 3d at
730. For these reasons, we find that the error was harmless.
In sum, we find that the trial court erred in failing to conduct a
Richardson hearing; however, we also find that the error was harmless.
Thus, we affirm.
Affirmed.
CIKLIN and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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