SC04-647 - Stephen Scipio v. State Of Florida

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State: Florida

Docket No: SC04-647

Case Date: 02/16/2006

Preview:Supreme Court of Florida
____________ No. SC04-647 ____________

STEPHEN SCIPIO, Petitioner, vs. STATE OF FLORIDA, Respondent. [February 16, 2006]

ANSTEAD, J. Stephen J. Scipio seeks review of the Fifth District Court of Appeal's decision in Scipio v. State, 867 So. 2d 427 (Fla. 5th DCA 2004), on the basis of conflict with numerous prior decisions of other district courts and this Court, including the decisions in Pender v. State, 700 So. 2d 664 (Fla. 1997); Williams v. State, 863 So. 2d 1189 (Fla. 2003); and State v. Schopp, 653 So. 2d 1016 (Fla. 1995). This Court has jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution. Because we find the State has not demonstrated the harmlessness of a discovery violation, we quash the decision of the Fifth District

and remand with instructions that a new trial be conducted. We also clarify our holding in Schopp. PROCEEDINGS TO DATE Scipio was convicted of first-degree murder and sentenced to life in prison without the possibility of parole.1 On appeal, he claimed a substantial State discovery violation tainted his conviction. Scipio v. State, 867 So. 2d 427, 429-30 (Fla. 5th DCA 2004). The Fifth District described the proceedings and the facts presented at trial in its opinion: At Scipio's trial, four witnesses identified him as Smith's assailant, but there was no physical evidence connecting Scipio to the crime. Smith was shot four times, and two projectiles were recovered from his body. They were possibly fired from the same pistol, most likely a revolver, but the gun was never recovered. The testimony adduced at trial was that immediately prior to his death, Smith was shooting pool with Miles Garey in the pool room of the Southside Inn, a Daytona Beach nightclub, which is located in a high crime area. Garey testified that he and Smith had been at the Southside Inn only a short while, and that he was bending over shooting pool, when he heard Smith say "Oh, s--t, he's got a gun." Garey felt a bullet whiz by his ear and he ran outside the bar. Garey could not identify the shooter. When police arrived, Smith was lying in the parking lot and bystanders were trying to help him. Smith was pronounced dead at the scene. Although police questioned potential witnesses at that time, no one claimed to have seen what happened. Scipio was not questioned by police because he was not in the area. However, three people (Harper, White and Gaines) subsequently gave police information about the crime, and testified at Scipio's trial that they 1. At the outset, it is important to note that this case concerns the most serious crime and the most severe penalty, short of death, provided for under Florida's criminal laws. -2-

saw him shoot Smith. A fourth witness testified that Scipio admitted shooting Smith to him. The state's theory of the case was that Smith's murder was in retaliation for his testimony against an individual named Robert Allen. Smith had been the victim of a robbery perpetrated by Allen about a year earlier. Allen had been convicted of the robbery and sentenced to fifteen years imprisonment, based in part on Smith's testimony. .... Scipio's defense was that another person had committed the crime. The defense intended to rely, in part, on the testimony of Robert Burch, an investigator for the Medical Examiner's Office. During Burch's deposition, defense showed him a photograph of the crime scene outside the Inn, in the parking lot. Based upon this photograph, Burch said there had been a semi-automatic pistol under Smith's body, and that he had turned it over to law enforcement. Defense believed that this evidence could have created doubt in the mind of the jury as to whether Scipio was the assailant. Defense counsel met with Burch on the morning of the trial and asked him to review his deposition testimony. Burch did so and said he agreed with it. However, Burch was subsequently approached by the prosecutor and asked about the weapon. Burch told the prosecutor he thought there was a photograph of a weapon. The prosecutor brought Burch to the State Attorney's Office to review the photographs. Defense asked to accompany them but the prosecutor refused. The prosecutor produced the crime scene photos. When Burch reviewed them, he decided the FDLE photo showed the object he had believed to be a weapon, was in fact a pager. Burch realized that he had been mistaken in his deposition testimony, but this information was not given to defense prior to the commencement of the trial. When Burch testified at trial that he had not seen a gun at the scene, but rather he had seen only a pager, the defense was completely surprised. Defense counsel made a motion for a mistrial based on Burch's changed testimony, but it was denied. The defense was permitted to impeach Burch, but Burch stuck to his story, explaining that he had made a mistake. Scipio, 867 So. 2d at 428-30. As noted, Scipio was convicted and sentenced to life without the possibility of parole. -3-

On appeal, the Fifth District Court of Appeal rejected all issues raised except for Scipio's claim that a harmful discovery violation had occurred during trial by reason of the State's failure to disclose Burch's changed testimony to the defense. The district court held that a "failure to disclose a significant change in a witness's testimony is as much a discovery violation as a complete failure to disclose a witness." Id. at 430 (citing State v. Evans, 770 So. 2d 1174, 1182 (Fla. 2000)). The court concluded that the State had "actively procured the defense witness's recantation" while "knowing that defense counsel intended to rely on [the witness's earlier] deposition." Id. The court declared that this "type of `dirty pool' " is "exactly the type of conduct the discovery rules were designed to prevent." Id. The Fifth District nevertheless held that the discovery violation was not sufficiently harmful to require reversal. Id. at 431. Scipio now seeks review, claiming that the Fifth District misapplied the harmless error standard enunciated by this Court in Schopp. DISCOVERY VIOLATION The State first asserts that the Fifth District erred in finding any misconduct by the State, let alone a discovery violation, thereby making any harmless error assessment moot. However, we conclude that the Fifth District was correct in its determination that the State's discovery violation was a flagrant case of "dirty

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pool" that is "exactly the type of conduct the discovery rules were designed to prevent." Scipio, 867 So. 2d at 430. Not surprisingly, Scipio agrees with the Fifth District's assessment. Further, he asserts that the prosecutor's actions constituted a violation of the spirit and purpose of the discovery rules, as well as a violation of the prosecutor's ethical and professional responsibilities. He claims that the prosecutor's action constituted the "trial by ambush" that this Court has consistently condemned. The Fifth District relied upon case law concerning discovery issues from this Court and the district courts, as well as an analysis of Florida's criminal discovery rules, to demonstrate the prosecution's discovery violation for failing to disclose the substantial change in testimony by the medical examiner's investigator. The criminal rules that codify the prosecutor's obligation to provide discovery include Florida Rule of Criminal Procedure 3.220(b) (prosecutor's discovery obligation) and 3.220(j) (continuing duty to disclose). These rules of criminal procedure provide: (b) Prosecutor's Discovery Obligation. (1) Within 15 days after service of the Notice of Discovery, the prosecutor shall serve a written Discovery Exhibit which shall disclose to the Defendant and permit the defendant to inspect, copy, test, and photograph the following information and material within the state's possession and control: .... (B) The statement of any person whose name is furnished in compliance with the preceding subdivision. The term "statement" as used herein includes a written statement made by the person and -5-

signed or otherwise adopted or approved by the person and also includes any statement of any kind or manner made by the person and written or recorded or summarized in any writing or recording . . . . .... (j) Continuing Duty to Disclose. If, subsequent to compliance with the rules, a party discovers additional witnesses or material that the party would have been under a duty to disclose or produce at the time of the previous compliance, the party shall promptly disclose or produce the witnesses or material in the same manner as required under these rules for initial discovery. Fla. R. Crim. P. 3.220(b)(1)(B), (j). The "preceding subdivision" referred to in rule 3.220(b)(1)(B) requires the State to provide the defense "a list of names and addresses of all persons known to the prosecutor to have information that may be relevant to any offense charged or any defense thereto." Fla. R. Crim. P. 3.220(b)(1)(A). Under these rules, it is apparent that the medical examiner's investigator, who examined the crime scene and the body of the victim, was a person whom the State had an obligation to disclose as having information relevant to the case. That obligation is not in dispute here, and is comparable to the State's obligation to disclose the identity of an investigating police officer who has gathered evidence of the crime. Further, since the medical examiner's investigator actually gave a statement by deposition that he possessed relevant information of the crime scene, the State also had an obligation to disclose any material change in that statement. See Fla. R. Crim. P. 3.220(j). The form in which the statement was provided, i.e., a recorded deposition versus a written statement, does not affect that obligation. -6-

Of course, we now know by hindsight that the investigator first gave a statement helpful to the defense, and then, at trial, gave testimony contrary to the initial statement and harmful to the defense while helpful to the State. In establishing a discovery violation by the State, the Fifth District also relied upon this Court's analysis of a similar discovery issue in State v. Evans, 770 So. 2d 1174 (Fla. 2000). See Scipio, 867 So. 2d at 430. The witness in Evans provided a statement to police and a pretrial deposition, and in both statements asserted that she "didn't see anything" pertaining to the crime. Evans, 770 So. 2d at 1176. The same witness subsequently testified as a witness for the State at trial, asserting, contrary to her police deposition and statement, that she actually saw the defendant shoot the victim. Id. On cross-examination the witness disclosed that she had provided her changed statement to the State a month before trial. Id. However, the State did not notify the defendant of the change and that it would be relying on this important new evidence at trial. Id. This Court found that the State had committed a discovery violation by failing to disclose that the witness had changed her original statement "to such an extent that the witness is transformed from a witness who `didn't see anything' into an eyewitness who observed the

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material aspects of the crime charged" and that this was "tantamount to failing to name a witness at all." Id. at 1182.2 This Court concluded: Finally, we determine that the State's failure in this case to disclose both the substance of the oral statement allegedly made by Evans and the transformation of Green into an eyewitness was harmful because we cannot say beyond a reasonable doubt that the 2. In Evans, we also discussed and qualified our earlier holding in Bush v. State, 461 So. 2d 936 (Fla. 1984), finding no discovery violation by the State in a similar situation. We explained: To the extent that our determination here may be interpreted as being inconsistent with our "changed testimony" statements in Bush, we clarify that our statements in Bush do not control in situations where the State provides the defendant with a witness's "statement"

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