BENTON, C.J.
Hector Luis Sanchez-Andujar appeals his convictions for attempted first-degree murder of Orlando Cartagena-Torres and attempted second-degree murder of Abiezer Torres. The trial court excluded a key defense witness, albeit after conducting a Richardson hearing, unjustifiably rejecting less restrictive measures to cure any prejudice late disclosure of the witness may have occasioned. We reverse and remand for a new trial.
When a "discovery violation is committed by the defense, special importance attaches to the trial court's inquiry into alternative sanctions because exclusion of exculpatory evidence implicates the defendant's constitutional right to defend himself or herself." McDuffie v. State, 970 So.2d 312, 322 (Fla.2007). See Comer v. State, 730 So.2d 769, 775 (Fla. 1st DCA 1999) ("`In a criminal case, the exclusion of a defense witness for a discovery violation implicates a defendant's sixth amendment right to present witnesses as well as the fundamental right to due process.' M.N. v. State, 724 So.2d 122[, 124 (Fla. 4th DCA 1998)]; Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988).").
On November 30, 2009, jury selection took place for a trial scheduled to begin on December 1, 2009.1 Before jury selection, defense counsel filed a motion for continuance on grounds that one of the victims, Mr. Cartagena-Torres, had never been deposed, because he was still in federal custody, and that the state had listed an additional witness (Special Agent Dan McCaffrey whom defense counsel had not had the opportunity to depose) in a supplemental discovery exhibit filed only a week before, on November 23, 2009. The trial court denied the motion to continue the trial.2
Defense counsel also presented ore tenus an additional ground for the motion to continue the trial: Mr. Sanchez-Andujar had informed him earlier on November 30, 2009, that his son, Christian Sanchez, who had been living in Puerto Rico, was returning for the trial and could testify in support of his alibi. The trial judge directed defense counsel and the prosecutor to talk to Christian Sanchez, saying she would decide after that whether Christian would be allowed to testify.
On the following day, December 1, 2009, before the jury was sworn, defense counsel advised the trial court that Christian Sanchez had arrived from Puerto Rico the evening before, and that he should be at the courthouse, but that counsel had not yet spoken to him. Defense counsel also reported that he had "noticed the alibi to the State." After this colloquy, the trial court instructed defense counsel to make no mention of Christian Sanchez during his opening statement to the jury, and the trial began.
At trial, the state put on evidence that Mr. Cartagena-Torres and Ms. Torres arrived (with friends) between 10:30 p.m. and 11:00 p.m. on July 24, 2008, at a night club where Mr. Sanchez-Andujar was already present. Carlos Santiago, a state's witness, was in the club that night, and saw Mr. Sanchez-Andujar and Mr. Cartagena-Torres arguing. Later, according to Mr. Santiago, when he saw Mr. Sanchez-Andujar in the bathroom talking on his cell phone, he suggested that Mr. Sanchez-Andujar leave the club, and Mr. Sanchez-Andujar responded that he was leaving, and was asking someone to pick him up because he did not have a car. Mr. Santiago testified he did not see Mr. Sanchez-Andujar again that night.
Mr. Cartagena-Torres and Ms. Torres remained until the club closed at 2:00 a.m. Later, outside the club, a car with lights off sped towards them, getting within arm's reach, before swerving and coming almost to a full stop. The driver's side was closest to Mr. Cartagena-Torres and, he testified, the car windows were down. Ms. Torres testified that she heard a shot, looked and saw Mr. Sanchez-Andujar inside the car, turned and tried to run, and was shot in the back. Mr. Cartagena-Torres testified that he saw Mr. Sanchez-Andujar in the driver's seat of the car with a gun, and that he tried to grab the gun, after Ms. Torres was shot, but that additional shots were fired and that one of the bullets struck him.
After the prosecution rested, defense counsel proffered the testimony of Christian Sanchez. Christian testified on proffer that he received a phone call from his father on the night of the shooting. Mr. Sanchez-Andujar told him he had had a run-in with somebody, left the site of the confrontation to avoid further problems, took a taxi but ran out of money, and asked Christian to pick him up and take him home. Christian testified that he picked Mr. Sanchez-Andujar up around 1:00 a.m. on July 25, 2008, and drove him home, and that Mr. Sanchez-Andujar did not leave again that night.
The trial court then asked if the prosecutor wanted to inquire of Christian. The prosecutor refused, arguing that Christian was an alibi witness who should have been disclosed to the prosecutor ten days before trial. The prosecutor maintained that Christian should not be allowed to testify because the state had not had an opportunity to obtain telephone records, or to depose the witness before trial. The trial court then ruled Christian would not be permitted to testify because the case was a year and a half old,3 because the witness was related to Mr. Sanchez-Andujar, because the witness had been in Puerto Rico, unavailable to any party until the last minute, and because he was an alibi witness disclosed to the prosecution only 48 hours earlier. With Christian's exclusion, Officer Valentine of the Jacksonville Sheriff's Office and Mr. Sanchez-Andujar himself became the only witnesses to testify for the defense.4
At the outset, we point out that the trial court had no authority to exclude witnesses under the alibi provisions of Florida Rule of Criminal Procedure 3.2005 because the state did not trigger any defense obligation by filing a written demand for notice of intention to claim an alibi.6 See Martin v. State, 41 So.3d 1100, 1102 (Fla. 4th DCA 2010) ("[R]ule 3.200 is for the benefit of the State, and thus, the State cannot take advantage of the requirements of rule 3.200 to the defendant's detriment when it has failed to comply with the rule's initial mandate by failing to file a written demand for a notice of alibi. Therefore, the trial court abused its discretion in excluding Martin's alibi witnesses because it was not authorized to exclude the witnesses under rule 3.200.").
Nor is this a case where defense counsel failed to provide the trial court with enough information to necessitate a comprehensive Richardson hearing.7 Contrast Johnson v. State, 25 So.3d 662, 665-66 (Fla. 1st DCA), review denied, 43 So.3d 44 (Fla.2010) (concluding defense counsel did not provide the trial court with the information necessary to conduct a comprehensive Richardson hearing when defense counsel first revealed its intent to call a witness not included on the defense witness list after the close of the state's evidence and denial of a motion for judgment of acquittal, neither proffered the testimony of the proposed witness nor explained in any meaningful detail the content of that expected evidence, and only offered a cursory preview of the proposed testimony just before jury charge which was "largely devoid of substantive content" and "provided no basis for the court to assess what effect, if any, the defense's discovery violation had upon the State's ability to properly prepare for trial").
The opinion in Richardson v. State, 246 So.2d 771, 775 (Fla.1971) sets out a three-part test that a trial court must apply before sanctioning any party for a discovery violation. The "trial court's discretion can be properly exercised only after an adequate inquiry is made into three areas: (1) whether the discovery violation was willful or inadvertent; (2) whether it was trivial or substantial; and (3) whether it had a prejudicial effect on the opposing party's trial preparation." McDuffie, 970 So.2d at 321 (citing Richardson, 246 So.2d at 775). Under Richardson the appeals court reviews the record to determine if "this full inquiry was made and if the trial court's actions pursuant to the inquiry were proper." Id.
In the present case, defense counsel told the trial judge that he notified the prosecutor as soon as he learned that Christian Sanchez was expected to arrive in the country in time to testify at his father's trial. The record indicates that defense counsel, who took over the case several months before trial, was aware of Mr. Sanchez-Andujar's son before learning of his imminent arrival, but did not list him as a defense witness earlier because the witness was then in Puerto Rico, and the defense investigator had not succeeded in contacting him. The trial court made no finding that this belated disclosure was willful.8
After the proffer of Christian Sanchez's direct testimony, the prosecutor declined an opportunity to cross-examine, claiming that the state had not had an opportunity to obtain phone records9 or to depose the witness before trial.10 The trial court made limited inquiry into whether the violation prejudicially affected the state's ability to prepare for trial and did not clearly make a finding of prejudice to the state.11
Instead, the trial judge stated that both defense counsel and the state "just got this information," noted that Christian and Mr. Sanchez-Andujar were related, observed that Christian had been in Puerto Rico unavailable to either party, and ruled that there were "no indicia of reliability." The trial court did not explore the possibility that Mr. Santiago's testimony about Mr. Sanchez-Andujar's telephone calling should have been enough to alert the state to the desirability of obtaining telephone records well before trial. "[W]ithout supporting factual findings in accordance with Richardson requirements, exclusion of witness previously undisclosed on defense's witness list was too severe a sanction." Comer, 730 So.2d at 775 (citing L.W. v. State, 618 So.2d 349 (Fla. 2d DCA 1993)). See also Dawson v. State, 20 So.3d 1016, 1020 n. 3 (Fla. 4th DCA 2009) (noting "that a trial court must address all three prongs of the Richardson inquiry; otherwise, the court's analysis is not adequate").
More fundamentally, "[r]elevant evidence should not be excluded from the jury unless no other remedy suffices, and it is incumbent upon the trial court to conduct an adequate inquiry to determine whether other reasonable alternatives can be employed to overcome or mitigate any possible prejudice." Wilkerson v. State, 461 So.2d 1376, 1379 (Fla. 1st DCA 1985) (citing Austin v. State, 461 So.2d 1380 (Fla. 1st DCA 1984); Fedd v. State, 461 So.2d 1384 (Fla. 1st DCA 1984); Johnson v. State, 461 So.2d 1385 (Fla. 1st DCA 1984); Jones v. State, 360 So.2d 1293, 1297 (Fla. 3d DCA 1978)). As we have said before:
In a system in which the search for truth is the principal goal, the severe sanction of witness exclusion for failure to timely comply with the rules of procedure should be a last resort and reserved for extreme or aggravated circumstances, particularly when the excluded testimony relates to critical issues or facts and the testimony is not cumulative.
Austin, 461 So.2d at 1381. See, e.g., Roopnarine v. State, 18 So.3d 1192, 1194 (Fla. 4th DCA 2009) (holding the trial court erred in excluding testimony of the defendant's brother, although the brother was not listed in discovery and his name was only provided to the state as a witness on the day of trial, where defense counsel was surprised by the brother's decision to be a witness, and the brother could testify to exculpatory facts, ruling that the trial court "should have considered another remedy" because the state's alleged procedural prejudice could have been cured by a continuance or, after the jury was sworn, a mistrial). See also State v. Baldwin, 978 So.2d 807, 808 (Fla. 1st DCA 2008); Comer, 730 So.2d at 775; Donaldson v. State, 656 So.2d 580, 580-81 (Fla. 1st DCA 1995). Cf. Taylor v. Illinois, 484 U.S. 400, 415, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) (holding that if the failure to disclose a defense witness was "willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence, it would be entirely consistent with the purposes of the Compulsory Process Clause simply to exclude the witness' testimony").
No effort was made to determine whether reasonable means could have been employed to overcome any prejudice to the state without resorting to the total exclusion of the witness. All indications are that a brief continuance would have cured any possible prejudice. As the court stated in Mattear v. State, 657 So.2d 46, 47 (Fla. 4th DCA 1995) (quoting Woody v. State, 423 So.2d 971, 971 (Fla. 4th DCA 1982)):
[A] trial court's decision to exclude testimony for a discovery violation should balance "the propositions that the reciprocal rules of discovery should be followed so long as the defendant is not denied his fundamental right to defend himself." Since the testimony sought to be introduced by the witnesses in the instant case was exculpatory in nature, exclusion of the testimony would deny appellant his fundamental right to defend himself in violation of the Sixth Amendment. . . .
We are not suggesting by this opinion that the trial court, after determining under Richardson v. State, 246 So.2d 771 (Fla.1971), that the state would suffer substantial prejudice, should have allowed the witnesses to testify in the trial presently underway. When exculpatory evidence is sought to be introduced in violation of the discovery rules, and remedies which would allow the trial to proceed are insufficient, the proper course of action is to declare a mistrial. A mistrial is an appropriate discovery sanction under rule 3.220(n)(1), Florida Rules of Criminal Procedure.
Excluding Christian's testimony was not justified on grounds no other adequate remedy was available. See McDuffie, 970 So.2d at 322; Dawson, 20 So.3d at 1021; Casseus v. State, 902 So.2d 294, 295-96 (Fla. 4th DCA 2005); Fabregas v. State, 829 So.2d 238, 241 (Fla. 3d DCA 2002). A mistrial would not have been necessary. The trial had not begun when it became clear that Christian would be available as a trial witness.
With the exclusion of Christian Sanchez's testimony, Mr. Sanchez-Andujar's ability to present his defense was seriously compromised. While the "erroneous exclusion of exculpatory defense evidence following a Richardson hearing is subject to harmless error analysis," Dawson, 20 So.3d at 1021; see also C.D.B. v. State, 662 So.2d 738, 741 (Fla. 1st DCA 1995), such "[e]rror is harmless only where it can be said, beyond a reasonable doubt, that the error could not have affected the verdict." Comer, 730 So.2d at 775 (citing Czubak v. State, 570 So.2d 925, 928 (Fla. 1990)).
Excluding the testimony proffered in the present case was not harmless error because it cannot be said on this record beyond a reasonable doubt that the testimony of Christian Sanchez could not have produced a reasonable doubt in the minds of the jurors sufficient to tip the scales in favor of acquittal. Mr. Sanchez-Andujar, who testified at trial that he did not shoot the victims, denied that he was present when the shooting occurred. Christian's proffered testimony, which would have been highly relevant, indeed central, to this defense, would have corroborated Mr. Sanchez-Andujar's version of events.
Reversed and remanded for a new trial.
WETHERELL and ROWE, JJ., concur.
