CONNER, J.
Anthony Bryant appeals his judgment and life sentence after he was found guilty of first degree murder. He argues the
On July 16, 2001, officers responded to the home of the Victim in reference to a report of a dead body. When officers arrived, they found the Victim had been brutally murdered. The autopsy revealed the Victim died as a result of blunt force trauma to the head.
The investigators spoke to a friend and co-worker of the Victim, who had discovered the Victim's body. The friend stated that he spoke to the Victim late on Friday, July 13, 2001, but the Victim did not arrive for work on July 14th or 15th. He also told investigators that the Victim had three house guests staying with him, two males and a female. The co-worker did not know anything about the identity of the house guests. The Victim's cousin told investigators that her nephew (Bryant), his girlfriend (Cannon), and another man (Blash), were staying with the Victim while visiting from Connecticut.
Investigators contacted a detective in Connecticut, and the detective informed them that they were investigating Bryant, Cannon, and Blash for a murder in Connecticut, and that they had been in contact with investigators in New York, where Bryant, Cannon, and Blash were also being investigated for a separate attempted murder. Investigators obtained photographs of Bryant, Cannon, and Blash. The Victim's friend identified all three as the house guests who were staying with the Victim just prior to his death. Officials in New York eventually apprehended Bryant and his co-defendants.
In October 2001, a grand jury returned an indictment charging Bryant, Cannon, and Blash, with first degree murder and conspiracy to commit first degree murder. The State gave notice it was seeking the death penalty.
The specific issue on appeal concerns the admission of DNA evidence at trial obtained from a pair of pants found in a bedroom in the Victim's home. The results of DNA testing by the State revealed that the pair of pants contained DNA from the Victim, in the form of blood spatter, and also contained the DNA of Bryant. The problem we address on appeal is that the DNA testing by the State was not completed until thirteen days after jury selection began, despite the State having custody of the pants as evidence for almost six years before the trial began. Bryant asserted a discovery violation and moved to exclude the DNA evidence. As discussed more fully below, the DNA evidence was important because both the State and Bryant argued that the "owner" of the pants was "intimately" involved in the murder.
The easiest way to understand the pertinent factual information for our appellate analysis is to employ a timeline description of events applicable to the trial court's decision to deny Bryant's motion to exclude the DNA evidence.
When the trial resumed, Noppinger testified for the State about DNA evidence. He testified that he had collected known samples from Bryant, Blash, and the Victim, and determined that the blood stains on the pants belonged to the Victim. He also testified regarding a more controversial "yellowish" stain in the area in the "inside front portion on the right side [of the pants] next to the zipper location of the pants." Although he conducted a test to determine if the stain was semen, the test came back negative. He could not identify the substance of the stain after conducting further tests. Noppinger stated that the stain yielded a partial profile, from which Bryant could not be excluded.
In order to determine the "owner"
Bryant called Keel as his DNA expert witness. Keel testified that he was originally sent two known DNA samples from Bryant and the Victim, and two pieces of the pants cut by BCSO. So, he first did a presumptive test on the yellow-stained area, and the test yielded a negative result for semen, and a small amount positive for blood. When testing the stain for DNA, he found two contributors: one, Bryant, was the major contributor, and then there was a second, unknown (not Blash) contributor. However, since Keel wanted to
Keel testified that, when he received the pants, he also tested multiple other areas on them, and found multiple areas on the pants where Bryant was a major contributor, but there were two or more unknown contributors to the sample. Keel testified to the significance of these findings, particularly the fact that there were multiple DNA-contributors found on the pants. Keel stated that "most of the time" when an attempt is made to find the "owner" of a pair of pants, there is only one contributor. Keel stated that he could not tell who was wearing the pants at the time that the Victim was murdered, based on the DNA results, and just because Bryant was found to be the major contributor of DNA on the pants, did not necessarily mean that he was the person wearing them at the time of the murder.
At the end of the trial, the jury found Bryant guilty of first-degree murder. The jury recommended a life sentence, which the trial court imposed. Bryant gave notice of his appeal.
The sole issue on appeal is whether the trial court erred in failing to exclude the DNA results after the Richardson hearing. "[A] trial court's decision on a Richardson hearing is subject to reversal only upon a showing of abuse of discretion." Rimmer v. State, 59 So.3d 763, 787 (Fla.2010) (citing Conde v. State, 860 So.2d 930, 958 (Fla.2003)).
The trial court was correct that the facts of the instant case are similar to the facts in Trummert. 647 So.2d at 967. In Trummert, the State appealed a trial court's order excluding DNA evidence that was disclosed just prior to trial. Id. After ordering the State to produce the results of a DNA analysis on two separate occasions, just before the deadline of the second order to produce, the State requested a continuance, and for samples to be taken of Trummert's blood, since it learned that the previous prosecutor on the case had not requested the DNA testing. Id. Soon after, on March 31, 1994, the State requested a two-month continuance to complete the DNA testing and to depose a defense witness. Id. The trial court granted the State's request, over the defense's objection. Id.
On April 7, 1994, Trummert filed a demand for speedy trial, and at the calendar call, the State provided Trummert with the new evidence of the DNA analysis, in addition to a new witness who would testify about the evidence. Id. Trummert moved to exclude the results of the DNA testing, as well as the witness, "argu[ing] that the state's late production put her in the position of either giving up her right to a speedy trial, or proceeding with further discovery on the evidence just handed to her." Id. The trial court granted Trummert's motion, excluding the DNA analysis and witness. Id.
On appeal, the State argued:
Id. at 968 (emphasis added). Therefore, under facts similar to the instant case, we held that the delayed production and disclosure of DNA evidence was not a discovery violation.
However, Bryant argues that Trummert is not controlling because the facts are different from the instant case. Notably, in Trummert, the evidence was disclosed to the defense prior to trial, albeit very close to the trial date, whereas in the instant case, the evidence was disclosed to Bryant during the trial. This distinction, however, does not change the analysis. Although the disclosure in the instant case of the actual results was later in the process, the same issues are present in regards to whether the late discovery was a violation. The State disclosed the DNA results to Bryant as soon as it had them, and also kept Bryant updated as to the fact that the DNA testing was being conducted and it would soon have the results. Therefore, Bryant was at least aware that the results would be forthcoming, although he may not have been aware of exactly what those results would reveal.
While the exclusion of evidence is a permissible tool in a trial court's remedial cure arsenal, the trial court correctly determined that "this sanction should only be imposed when there is no other adequate remedy." McDuffie v. State, 970 So.2d 312, 321 (Fla.2007). Although the State agreed that Bryant was procedurally prejudiced by its late disclosure of evidence, the trial court's remedy of allowing a long recess in order for Bryant to conduct testing cured this prejudice.
Bryant makes two arguments to demonstrate procedural prejudice: (1) he looked like a "liar" in his opening statement since he insinuated that there was no DNA linking him to the murder, and (2) his inability to prepare fully for the trial since the DNA evidence was not provided to him until the trial was almost half over. We reject both arguments. Since both claims of prejudice were cured by the remedy granted by the trial court, the trial court properly declined the motion to exclude the DNA test results.
Regarding Bryant's first argument that the jury would think that he was untruthful or somehow negligent in implying that there would be no DNA evidence in the case to link Bryant with the Victim's murder, the record shows that the trial court allowed both parties to give a second opening statement after the five-week long trial recess. The remedy allowed both sides to take into account the new evidence from
Regarding Bryant's second argument that he was unable to fully prepare for trial with the disclosure of new DNA evidence, not only did the trial court allow Bryant to take depositions of the State's DNA expert during the trial, but the trial court actually recessed for five weeks, to allow Bryant to conduct multiple tests on the pants. At first, the State sent Bryant's DNA experts only two pieces of the pants. However, after testing those pieces and requesting the entirety of the pants, Bryant's experts also had the opportunity to test multiple portions of the pants and to make an independent conclusion after this access to the pants. The five-week continuance, coupled with the opportunity for further testing, demonstrates the trial court adequately addressed the claims of prejudice due to insufficient time to prepare to defend against the State's new DNA evidence.
On appeal, Bryant contends that the trial court should have allowed his experts more time to conduct further testing on the pants. However, in viewing the record, and specifically the areas to which Bryant has directed us on appeal, in his brief and during oral argument, we find nothing to show such a request was made to the trial court for an additional continuance for more testing. Although there is a portion of the transcript of one of the status conferences where Blake stated that "the story that these pants have to tell cannot be fully told without that information [from additional testing]," there was never a specific request for an additional continuance made by Bryant to the trial court. Additionally, prior to the testing of the pants, Keel stated that he wanted the detective to bring the pants to his lab, drop them off, then come and pick them up once he was finished. Although the State did not agree to leave the pants at the lab, the trial court specifically stated that "if [Keel] needs to come back and convince me that that needs to happen, [then] I can order it." The trial court did not state that the "it" in this situation was more time to analyze the pants; however, from the context of the discussion ("he needs to do whatever he can with it to maximize the chances that he does not need it back"), we are satisfied that the trial court certainly left the possibility open that it may need to order that Keel be allowed more time with the pants. But, given the fact that the record is devoid of any statement by Bryant, specifically requesting that Keel be granted more time with the pants, the trial court's offer to reconsider the issue was never raised.
The trial court also offered multiple times to grant a mistrial. We are satisfied the offer was made to address any defense concerns that additional DNA testing was needed. In response, Bryant repeated multiple times that he did not want a mistrial, and that he wanted to keep the jury panel he had because he was "impressed" by the panel. The defense may have had strategic reasons for not specifically requesting any further continuance.
We conclude that the extreme sanction of exclusion of evidence was not warranted in this case. Moreover, the remedy fashioned by the trial court cured any procedural prejudice to Bryant resulting from the newly-furnished DNA results. The remedy of a recess was not only appropriate given the specific facts of the instant case, but it has also been recognized as a generally fitting remedy for situations involving late disclosure of newly-discovered evidence. See Livigni v. State, 725 So.2d 1150, 1151 (Fla. 2d DCA 1998) ("[O]ften a very brief recess, during which the parties work cooperatively to address the situation, provides sufficient preparation for the newly discovered evidence. However, where there is no willful discovery violation, the court should not consider sanctions. Here, the trial court erred by imposing the sanction of exclusion because there was no showing of a discovery violation.") (internal citation and quotation marks omitted); Hernandez v. State, 572 So.2d 969, 971 (Fla. 3d DCA 1990) ("[P]rejudice may be averted through the simple expedient of a recess to permit the questioning or deposition of witnesses.... Thus, it is an abuse of discretion for a trial judge to invok[e] the severe sanction of prohibiting the defense from calling ... witnesses instead of granting a recess and allowing the prosecutor to interview the witnesses and satisfy himself as to whether the prosecution would be prejudiced by the witnesses being allowed to testify." (internal citation and quotation marks omitted) (quoting S.G. v. State, 518 So.2d 964, 966 (Fla. 3d DCA 1988))). It was also a remedy mentioned by this court in Trummert, faced with a very similar set of facts. 647 So.2d at 968 ("Under such circumstances the state should have been granted a continuance for a reasonable time.").[
Even though we are affirming the trial court in this case, it is important to address what appears to be a recurring problem that was brought to light by this case: the repeated tardiness by the Broward County Sheriff's Office lab in producing DNA testing results to those charged with criminal offenses.
As stated above, the facts of this case are similar to the facts in Trummert. However, there is one important additional fact in the instant case that apparently was not present in Trummert: a demonstrated pattern of late disclosures of DNA test results, as testified to by other defense attorneys involved in other cases. It is important to note that in Trummert, we stated that the situation "we have is the state's negligent failure to proceed with DNA testing at an earlier time. This is not a discovery violation." Id. at 968 (emphasis added). The record in Trummert did not disclose a pattern of late disclosures.
Although the negligent failure to conduct timely DNA testing may have saved the State from a finding that there was a discovery violation in this case, similar to Trummert, the facts of the instant case come dangerously close to shifting the State's actions from negligent to willful. Although the State did not deliberately fail to get the DNA on the pants tested sooner, based on the testimony at the Richardson
The failure of the State, or its agents, to address known deficiencies regarding tardy or late DNA testing leads to recurring prejudicial results affecting a multitude of cases. Just as the State would argue that willful blindness is not a valid defense to many crimes, the same principles apply to its ignoring the obvious deficiencies with obtaining DNA test results.
Therefore, although the facts of this case do not require reversing Bryant's conviction based on the State's actions, in future cases it may be appropriate for the trial court to take the State's, or its agent's, pattern of tardy or late disclosures into consideration when determining whether there has been a discovery violation and what remedy to fashion, if in fact the trial court is satisfied, based on the evidence, that there is such a pattern of tardy or late disclosures. Because until the State is held responsible for the repercussions of its actions, the problem of tardy or late disclosure of DNA evidence will continue to the detriment of due process.
Affirmed.
WARNER and GROSS, JJ., concur.
