The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.

Stephen Scipio v. State of Florida


NEXT CASE , WHICH JUSTICE QUINCE WILL PARTICIPATE . THERE SHE IS. OKAY. IS CPO VERSUS STATE OFFLORIDA. AGAIN, I ANNOUN CE THAT JUSTICE WELLS WILL B E PARTICIPATING IN THE CASES THIS MO RNING. COUNSEL READY ?

YES. THANK YOU, YOUR HONO R. MAY IT PLEASE THE COURT. I AM KNOLL PENNSYLVANIA LEGAL A FROM THE SEVE NTH -- I AM NOEL PALELLA FROM THE SEVENTH CIRCUIT PU BLIC DEFEND ERS OFFICE , REPRESENTING THE DEFENDANT STEPHEN SCIPIO. HE WAS SENTENCED TO LIF E FOR MURDER AND ON DIRECT APPEAL , THE SUPREME COURT FO UND T HAT THE STATE HAD COMMITTED A DISCOVERY VIOLATION B UTFOUND THAT THE VI OLATION WAS HARMLESS BECAUSE OF OVERWHELMING EVIDENCE.

AS A PRELI MINARY MA TTER , YOU ARE SEE KING JURISDICTION HERE, BASED ON DIRECT CONFLICT?

CONFLICT. THAT IS CORRECT.

AND YOU ARE ALLE GE ING CONFLICT WITH PE NDER AND SCHAPP?

YES.

AND SO IF WE DETERMINE THAT THE STAND ARD WAS APPLIED AS ARTICULATED IN SCHAPP, WHE THER THERE WAS --, WHERE THERE WAS A PROCED URAL PROCESS, THEN THERE WAS NO CONFLICT.

I BE LIEVE THERE IS A SITUATION SIMILAR TO THAT IN PENDER, WHERE THE COURT , THIS COURT FOUND THAT THE DISTRICT COURT HAD MISAPPLIED THE SC HAPP STANDARD, BY LOO KING AT THE EFFECT OF THE VIOLATION ON THE FACT FINDER.

MY QUESTION IS, IF WE DECIDE THAT IT DID NOT M ISS APPLY THE SCHAPP STAN DARD , THAT IT APP LIED IT AS SCHAPP PROVIDED, THEN THERE IS NO CONFLICT.

BUT I DO N'T THINK THE RECORD SHOWS THAT.

I UNDERSTAND WHAT YOUR POSITION --

I AG REE , YES , IF THEY DIDN'T APPLY IT , I WOULD AGREE , THERE WOULD BE NO CONFLICT.

LET ME ASK ABOUT THE OPINION, THE NEXT TO T HELAST PARAGRAP H OF THE OPINION, AND IT IS NOT A LONG PARAGRAPH. I WANT TO READ IT TO YOU AND SEE WHAT YOUR , WHAT THEY SAY HERE, IS HAD THE DEFENSE KNOWN ABOUT THE WITNESSES -- THE WITNESS'S CHANGE IN HIS TESTIMONY, ITS TRIAL STRATEGY COULD ONLY HAVE BEEN ONE OF TWO THINGS. ONE, IT WOULD NOT HAVE CALLED THE WITNESS. CLEARLY THE OUTCOME O F THIS CASE WOULD NOT HAVE BEEN AFFECTED, GIVEN THE M ULL 'TIL TIP HE WILL EYE -- THE MULTIPLE EYEWITNEITHER TEST MOANS --

I WITNESS TESTIMONY CONCERNING SC IPIO 'S SHOOTING . SECOND, THE DEFENSE WOULD HAVE CALLED THE WITNESS A NDSOUGHT TO IMPEACH HIM AND PRESENT THE JURY WITH HIS PRIOR TESTIM ONY. THAT IS IN EFFECT WHAT HAPPENED IN THIS CASE, WHICH IF ANYTHING, WAS MORE FAVORABLE TO SCIPIO THAN NOT HAVING CALLED THE WITNESS . NOW , IS THAT A CORRECT ANALYSIS , UNDER SCH APP?

NO, I SUB MIT IT IS N OT.

WHY NOT?

FIRST OF ALL, BECAUSE THE ANALYSIS CENTERS ON THE SUBSTANTIVE EF FECT O F MR . BURGESS'S TESTIMONY ON THETRIER OF FACT .

BUT THE FIRST SENTENCE SAYS, TALKS ABOUT WHAT THE TRIAL STRATEGY WOULD HAVE BEEN OF THE PARAGRAP H THAT JUSTICE ANST EAD JUST READ.

YES.

SO IT WAS , WHICH WOULD BE VERY DIF FERENT THAN IF YOU WERE LOOK ING AT A BR AD Y CLAIM AND THERE WAS SOME , THAT THIS IMPEACHMENT WASN'T THERE, SO THAT IN THAT PARAGRAPH, AREN'T THEY FOCUSING ON WHAT THE STRATEGY WOULD HAVE BEEN? NOW , YOU MAY DISAGREE ABOUT HOW THEY ANALYZE THE STRATEGY, BUT AREN'T THEY FOCUSING ON THE PROCED URAL ASPECTS?

YES , AND IN THAT SENSE , THE STRATEGY WOULD HAVE BEEN NOT TO CALL MR . BIFERP AS AWITNESS, AND THERE IN LIES THE PROCEDURAL PREJUD ICE.

BUT IN TERMS OF WHETHER THERE IS A CONFLICT WITH SCHAPP, ON CE THE COURT IS APPLYING THE STANDARDS , WHETHER IT ACTUA LLY HO LDS THAT THERE IS PROCEDURAL PREJUDICE OR NOT , IS IRRELEVANT FOR THE CONFLICT ISSUE. WHAT IS RE LEVANT IS WHETHERTHEY ACTUALLY APPLIED WHAT SCHAPP SAYS THEY SHOULD D O,WHICH IS ANA LYZE I F THE TRIAL STRATEGY WOULD HAVE BEEN DIFFERENT, AND IF IT WOULD HAVE BEEN, WHETHER THAT WOULD HAVE AFFECT ED THE OUTCOME OF THE CASE , AND THAT SEEMS TO ME WHAT THE COURT DID , BUT DISAGREES WITH YOU AS TO WHAT THE OUTCOME WOULD HAVE BEEN , BUT IT APPLIED THE ANAL YSIS AS SCHAPP REQU IRES, SO HOW WOULD THAT CONFLICT WITH SCHAPP?

BECAUSE IF YOU LOOK AT THE NEXT LINE OF THEIR OPI NION, I THINK IT SAYS SOMETHING ABOUT, IF WE CAUTION PROSECUTORS THAT IF A WITNESS HAD BEEN MORE MATERIAL O R THAT WE MIGHT HAVE RE VERSED.

THAT IS ALL DI CTUM ? ISN'T THAT DIC TUM ? ISN'T THAT DICT UM?

YES. IF IF MR . HENDER SON DOES NOT CALL BI RCH AS A WITNESS , THAT IS THE PROCEDURAL PREJUDICE, CALLING HI M AS A WITNESS WHEN HE DOE SN'T KNOW THERE HAS BEEN A SUBSTANTIAL CHANGE IN HIS TESTIMONY, A CATEGORY A WITNESS TO SOMETHING ELSE.

BUT YOU HAVE TO SHOW SOMETHING MORE THAN SCHAPP , DON'T YOU?

YES AND I AM GETTING TO THAT. IF HE DOESN'T CALL HIM AS A WITNESS , THEN THE PROSEC UTOR DOESN'T GET UP IN CL OSING ARGUMENT, AND I INVITE THE COURT TO LOOK AT THE CL OSING ARGUMENT, THE VE RY L AST THING THAT THE JURY HEARD BEFORE THE COURT BE GA N JURY INSTRUCTIONS. I THINK THAT IS FOUND AT --

WE HAVE THAT BEFORE US. YOU ARE TALKING ABOUT THE STATE'S CLOSING A R GUMENT . THEY POINT OUT .

THE STATE 'S CLOSING ARGUMENT.

AND ATT ACK THE DEFENSE O N THE BASIS OF WHAT HAPPENED WITH THIS WITNESS.

THAT'S CORRECT AND T HAT IS THE PROCEDURAL PREJ UDICE , AND THAT IS THE PREJUDICE THAT WE ARE SAYING ONLY A MISTRIAL COULD HAVE CURED.

SO ARE YOU SAYING UNDER THESE CIRCUMSTANCES, THAT THE PROCEDURAL PREJUDICE IS THAT THE DEFENSE COUNSEL NEVER GOT THE OPPORTUNITY T O MAKE ANY C HOICE , BECAUSE O F WHAT HAPPENED HE RE.

THAT'S CORRECT.HE WAS B LIND S IDED.

WHAT ABOUT THE STATE'S ARGUMENT THAT YOU , THAT THE DEFENSE COUNSEL WAS ON SOME KIND OF NOTICE THAT SOMETHING WAS GOING ON , WHEN THE STATE WAS TALKING TO THE WITNESS , AND TOOK THE WITNESS B A CK INTO A R OOM , I ASSUME, TO TALK WITH HIM , AND WOULD NOT LET THE DEFENSE ATTORNEY CO ME IN , AND THEREFORE THE DEFENSE ATTORNEY WAS ON SOME KIND OF NOTICE THAT SOMETHING W ASGOING ON , AND SHOULD HAVE THEN TALKED TO THE WITNESS AGAIN .

WELL , FIRST OF ALL , I THINK WE HAVE THE S WORN TESTIMONY OF MR . BIRCH. I DON'T THINK THAT DEFENSE COUNSEL , WHEN HE SEE S MR . BIRCH , BECAUSE IT IS NOT IMPROPER FOR MR . BIRC H TO TALK TO THE STATE AT TORNEY BEFORE HE TESTIFIES . BUT I DON'T THINK THAT TRIAL COUNSEL , BECAUSE HE SEES MR . BIRCH TALKING TO THE PROSECUTOR , WOULD AUTOMATICALLY AS SUME THAT , OH, WELL, THIS GU Y THAT I THOUGHT WAS A CA TEGORY A WITNESS, I S NOW NOTHING OF THE SORT.

THIS IS RIGHT AFTER BIRCH HAS ASS URED DEFENSE COUNSEL THAT HIS TESTIMONY WOULD BE THE SAME .

IT WAS ABOUT TEN MINCE AFTER , AFTER HE WAS ASSURED. DEFENSE COUNSEL SAID HERE IS YOUR DEPO SITION. TREED .

IN HIS DEP OSITION.

THAT'S CORRECT, YOUR HONOR.

WAS THERE ANY EVIDENCE THAT THE STATE WAS AWARE OF THIS ASSU RANCE BY BIRCH T O DEFENSE COUNSEL?

WELL, I THINK IT HAND O UTIN THE HALL WAY .

ANY EVIDENCE IN THE RECORD THAT THE PROSECUTOR KNEW THAT BIRCH HAD MADE THIS AFFIRMATIVE REPRESENTATION TO DEFENSE COUNSEL?

WELL , I THINK YES.

AND TIE THAT IN WITH , WAS THERE ANY OTHER BASIS FOR THE PROSECUTOR TO K NOW THAT THE DEFENDANT WAS RELY ING UPON THIS WITNESSES NE SS'S TESTIMONY , EIT HER IN THE OPENING STATEMENTS OR THE CROSS-EXAMINATION OF THESTATE WITNESSES DURING THE TRIAL .

FIRST , I THINK WHAT MR . BIRCH SAID , IN , IN HIS TESTIMONY , WAS THAT THE PROSECUTOR APPROACHED HIM AND SAID WHAT IS ALL THIS ABOUT A GUN, OR SOMETHINGLIKE THAT , AND TO ME , THAT INDICATES THAT SOMEHOW , THE PROSECUTOR KN EW , WELL , A NDAT ANY RATE, THE PROSECUTOR WAS PRESENT AT MR . BIRCH'S DEPOSITION. THE STATE HAD A CO PY OF MR . BIRCH'S DEPO SITION . AND MR. BIRCH WAS LIST ED AS A CAT EGORY A WITNESS, WHICH IS A WITNESS AMONG OTHER THINGS --

I GU ESS MY QUESTION IS, WHAT DO WE HAVE BEF ORE US THAT SHOWS THAT THE PROSECUTOR WAS AW ARE THAT THE DEFENDANT OR THE DEFENDANT'S COUNSEL WAS RELYING ON THAT TESTIMONY SPECIFICALLY ?

MR. BIRCH WAS LISTED AS A DEFENSE WITNESS AS WELL.

YOU ARE SAYING IT SPEAKS FOR ITSELF, IN TERMS OF WHAT THE DEPOSITION HAD , I N ANY EVIDENCE IN THE DEPOSITION THAT WOULD HAVE BEEN HELP FUL TO THE DEFENSE , WAS THIS EVIDENCE ABOUT THE GUN .

YES.

THAT WAS APPARE NT ON THE FACE OF THE DEPOSITION.

ON THE FACE OF THE DEPOSITION, AND IT IS APPARENT FROM THE FACT T HAT MR. BIRCH SAID THAT THE PROSECUTOR APPROACHED HIM AND SAID WHAT IS ALL OF THIS ABOUT A GUN UNDER THE BODY?

I GUESS MY POINT IS , THERE IS NOTH ING IN THE OPENING STATEMENT BY DEFENSE COUNSEL, NOTHING IN EXAMINATION OF DEFENSE COUNSEL WITH THE WITNESSES , THAT WOULD HAVE PLACED THE PROSECUTOR O N NOTICE SPECIFICALLY AND THE JURY THAT DEFENSE WAS RELYING ON , UPON THIS CREDIBILITY IS SUE AS TO THE GUN?

I B E LIEVE , IN O P ENING STATEMENTS, WHAT WAS SAID , WAS THAT THERE WAS NO G UNRECOVERED IN THIS CASE . NOW, I DON'T KNOW I F THAT MEANS, I THINK WHAT THEY WERE REFERRING TO , WAS NO MURDER WE APON IS GOING TO BE PUT BEFORE YOU.

HE NEVER CLAI MED IN OPENING THAT THERE WAS A GUN FOUND UNDER THE BO DY?

DEFENSE COUNSEL?

YES.

OR ANYONE?NO.

NO.

NOW , LET M E GO BACK TO THIS ISSUE ABOUT WHETHER THERE IS ACTUALLY CONFLICT WITH SCHAPP. AGAIN , IF YOU, YOU CERTAINLY TAKE NO ISSUE WITH THE FIRST PART OF THE FI FTH DISTRI CT'S OPINION, FINDING A DISCOVERYVIOLATION, CORRECT? AND THAT IS , YOU A GREE ?

ABSOLUTELY THERE WAS A DISCOVERY VIOLATION. A VIOLATION OF THE CONTINUING DUTY OF DISCLOS URE.

SO ON THE SE COND ISSUE , IT IS CL EA R THAT T HEY , THAT THE FIFTH DIST RICT IS APPLY ING SCHAPP. YOUR STATEMENT THAT THERE , THEY MISAPP LIED IT , NECESSARILY RESTS ON THE LAST SENTENCE OF THE OP INION ? WHERE THEY SAY THEY ARE INTENDED TO PREVENT, IN A DIFFERENT CASE, WHERE THE EVIDENCE IS LESS OVERWHELMING OR RECA NTING WITNESS MORE MATERIAL , WE WOULD BE COMP ELLED TO REVERSE FOR A NEW TRIAL?

THAT'S CORRECT.

BUT THAT IS , OTHER THAN, THAT THAT, TO YOU , INDICA TES THAT THEY DIDN'T PRO PERLY APPLY SCHAPP, BECAUSE THEY , ALTHOUGH THE PARAGR APH BEFORE TALKS ABOUT WHAT THE STRATEGY DECISI ONS WOULD HAVE BEEN DIFF ERENT , CORRECT?

YES. AND ONE OF THOSE STRATEGY DECISIONS AS I SAID, THE PRO CEDURAL PREJUDICE , IS IN THE FACT THAT DEFENSE COUNSEL WAS , IN A WAY , TRICKED INTO CALL ING MR . BIRCH AS A WITNESS , WHEN HE CERTAINLY WOULD HAVE DONE THAT, IF HE KN OWN THE - - WOULDN'T HAVE DONE THAT , IF HE HAD KNOW N THE TR UTH, B UTTHE SECOND PART OF THAT ANALYSIS IS THAT YOU CAN'T CALL A WITNESS FOR THE PURPOSE OF IMPEACHING HIM , SO THE SECOND PART OF THE DISTRICT COURT'S ANALYS IS IN THAT RESPECT , WE SUBMIT, ERRONEOUS. I THINK THE B O LAND CASE THAT WE CITED IN OUR BRI EF TALKS ABOUT THAT .

THAT WOULDN'T BE CONFLICT , IN LOOKING , THERE REALL Y WEREN'T TWO STRAT EGY DECISIONS IS WHAT YOU A RESAYING.

NO , THERE W E REN'T .

THAT THERE WAS ONLY ONE , AND BY PUTTING ON A WITNESS THAT JUST THEN TURNED AND PUT THE DE FENSE , THE DEFENSE LAWYER LOST ALL CREDIBILIT Y.

ABSOL UTELY .

LET ME ASK YOU A QUESTION AS TO THE ISSUE OF THE DISCOVERY VIOLATION.

YES.

IN THIS CASE WE ARE NOTTALKING ABOUT A WRITTENSTATEMENT OR OTHER STATEMENTPROVIDED BY THE STATE , T O THE DEFENDA NT. WE HAVE A DEFENSE DEPOSITION AFTER LISTED STATE WITNESS , CORRECT?

YES.

IS THAT IS NOT DI RECTLY PARALLEL WITH EVANS. CAN YOU SP EAK TO THE DISCOVERY VIOLATION.

YES . IN EVANS --

I MEAN , COM PARE , I G UESSWHAT I AM QUESTI ONING, LET'S SAY THAT THE DEFENDANT HAD DISCLOSED TO THE STATE , TESTIMONY, AND SOME HOW THE STATE GETS EVIDENCE THAT THE DEFENSE WITNESSES ' P RIORSTATEMENT IS GO ING TO BE DIFFERENT.IN ALL THOSE CIRCUMSTANCES , YOU ARE SAYING THAT BOTH SIDE HAVE THE OBLI GATION TO TELL THE OTHER SIDE T HAT THERE IS GOING TO BE A MATERIAL CHAN GE IN THE TESTIMONY?

YES. AND HERE IS WHY .

BECAUSE THIS WAS THE DEFENSE DISCOVERY, I MEAN THE DEFENSE DE POSITION.

YES. I DON'T THINK THAT , I T HINK WHAT THE CO URT IS AS KING, IS , DOES THE RECIPROCAL OR CONTINUING DUTY TO DISC LOSE , DOES THAT T U RN O N WHO TA KES A DEPOSITION OR WHOSE WITNESS IS IT, AND I DON'TTHINK IT DOES.I THINK, IF DISC OVERY IS A SEARCH FOR THE TRUTH, THEN BOTH PARTIES ARE ENTITLED T O KNOW THE TRUTH , THAT ONE PARTY CAN'T HIDE THE TRUTH FOR WHATEVER REA SON , THAT ASSOON AS IT BECOMES KNOWN , THEN DEFENSE COUNSEL HAS A RIGHT TO KNOW THE TR UTH.

MY QUESTION IS , WHICH SPECIFIC RULE WAS VIOLATED .

THE CONTIN UING DUTY OF DISCLOSURE, UNDER RULE 3.220 --

J?

I BE LIEVE THAT IS IT . J. YES. HERE IT IS. YES. AND I SEE THAT I AM RUNNINGINTO MY REBUTTAL T IME, B UTLET ME MAKE THIS QUICK POINT . THE COURT, IN EVANS , CI TE D THE RULE OF PROCEDUR E THAT WE ARE TALKING ABOUT. AFTER FILING THE CHARGING DOCUMENT, THE DEFENDANT MAY ELECT TO PARTICIPATE IN THE DISCOVERY PROCESS PROVIDE BY THESE RUL ES, INCLUDING T HETAKING OF DISCOVERY DEPOSITIONS . BY FILING W ITH THE COURT AND SERVING ON THE PROSECUTING ATTORNEY A NOTICE O F DISCOVERY, WHICH SHALL BIND BOTH THE PROSECUTOR AND THE DEFENDANT , TO ALL OF THE DISCOVERY PROCEDURES CONTAINED IN THESE RU LES.

OKAY.CAN YOU GO O N , THEN , WHICH DISCOVERY RULE HAS BEEN VIOLATED. YOU STILL HAVEN'T SAID WHICH DISCOVERY RULE HAS BEEN VIOLATED.

THE ONE WE JUST REFERRED TO. J.

J , SAYS A CONT INUING OBLIGATION, IF IT I S DISCOVERED THAT ADDI TIONAL WITNESSES OR MATERIAL, T HEPARTY WOULD HAVE BEEN UNDER A DUTY TO DISCL OSE OR PRODUCE AT THE TIME OF THE PREVIOUS COMPLI ANCE.

THAT'S CORRECT.

SO J ASSUMES THAT T HEREIS A PREVIOUS OB LIGATION TO DISCLOSE. THE ONLY RULE THAT I FIND AN OBLIGATION TO DISCLOSE IS THE STATEMENT OF A WITNESS, SO WE WOULD HAVE TO FIND THAT A DEPOSITION IS A STATEMENT , AND 3.220. B . 1.B DOESN'T SEEM TO DEF INE STATEMENT TO INCLUDE A DEPOSITION. A STATEMENT SEEM S TO BE WHERE SOMEBODY WROT E OUT A STATEMENT AND SI GNED A STATEMENT, DA VE IT TO THE POLICE, AND THE PO LICE TURNS IT OVER TO THE DEFENSE. WHICH IS DIFFERENT FROM A DEPOSITION, BECAUSE THE DEFENDANT IS THERE O R A COUNSEL IS THERE, PRESE NT AT THE DEPOSITION, SO THE STATE DOESN'T HAVE TO TURN THAT O VER TO THE DEFENDANT IN THE F IRST PLACE.

NO. I THINK THE CONTI NUING DUTY OF DISCLOSURE , MEANS THAT THE DEFENSE OR EXCUSE ME, THE STATE INITIALLY , LISTED MR . BIRCH AS A CATEGORY A WITNESS, WHICH INCL UDES , AMONG OTHER THINGS, THAT HE IS EITH ER AN EYEWITNESS OR THAT HE MAY HAVE SOME EVIDENCE THAT COU LD TEND T O BE EXCULPATORY . IF THAT CHA NGES , THEN THE PROSECUTION AT THE VERY LEAST , HAS AN OBL IGATION T O INFORM THE DEFENSE , , NOT THE SUBSTANCE OF THE CHAN GED TESTIMONY , BUT , UNDER EVIDENCE I WOULD SAY THAT IS ARGUABLE, BUT AT THE VERY LEAST , TO SAY, LOOK, THIS WITNESS WAS ABOUT TO TESTIFY. YOU TALK T O HIM TEN MINU TES AGO AND HE WAS A CAT EGORY A WITNESS, WELL , HE IS NOT ANYMORE.

WAS THAT THE ARGUME NT THAT WAS MADE AT TRIAL , THAT THE STATE DID NOT INFORM T HEDEFENSE THAT THIS WITNESS WAS NOT GOING TO TES TIFY? IS THAT THE ARGUMENT THAT THE TRIAL COUNSEL MA DE?

THAT THE STATE NCHLD Z --

THE -- THAT THE STATE INFORMED --

THAT DEFENSE COUNSEL BIRCH WAS NOT GOING FOR TESTIFY.

NO. NO. NO. NO.

SO THAT IS NOT THE ISSUE HERE, WHE THER OR NOT HE WAS A CATE GORY A WITNESS ANYMORE.

NO. I AM SAYING THAT IS T HEVIOLATION OF DUTY OF DISCLOSURE THAT WE A RETALKING ABOUT.

THAT HE WAS NOT A CATEGORY A WITNESS?

THAT AT THE VERY MINIMUM , THAT WAS THE OBLI GATION IMPOSED BY PARAGRAPH J .

BUT THAT IS NOT ARGU ME NTTHE TRIAL COUNSEL MAD E TO THE COURT.

TRIAL COUNSEL SAID, YOUR HONOR , I HAVE BEEN SURPRISED. THIS WITNESS HAS TOTA LLY CHANGED HIS TESTIMONY FR OM WHAT HE SAID IN HISDEPOSIT ION.

RIGHT, NOT THAT THE STATE SAID HE WAS GOING TO CALL HIM AS WITNESS AND NO W HE IS NOT GOING TO CALL HIM. THAT IS THE VIOLATION. THAT IS NOT THE ARGUMENT THAT WAS MADE. THE ARGUMENT THAT YOU ARE ARGUING IS THAT HE CHANGED HIS TESTIMONY FROM WHAT HE SAID AT THE DEPOSITION .

NO. THAT HIS CATEGORY AS A WITNESS CHANGED.THAT WAS THE STATE'S INI TIAL DISCOVERY OBLIGATION , T O PROVIDE WHAT CATEGO RY OF A WITNESS HE WAS. THAT CHANGED.

I DON'T SEE ANY STATEMENT BY TRIAL COUNSEL THAT, REGARDING CATEGORY OF THE WITNESS. I DON'T REMEMBER SEEING ANY OF THAT.

NO, BUT --

IN HIS TESTIMONY.

BUT I DON'T THINK THAT COUNSEL IS REQUIRED TO U TTER MAGIC WORDS.

YOU ARE SAYING THAT THIS IS JUST LIKE IF THEY HAD TAKEN THE DEPOSITION OF THE INVESTIGATING POLICE OFF ICER , WHO HAD G O NE TO THE SC ENE AND INTERVIEWED WITNESSES O R WHATEVER, AND HAD TOLD THE DEFENSE COUNSEL WHAT THE RESULT OF ALL OF THAT WAS , BUT THEN L ATER , CHANGED HIS VIEW, AND HE WAS GOING TO BE A WITNESS , THAT THE THAN K, THAT THE STATE WOULD HAVE A A -- THAT THE THING, THAT THE STATE WOULD HAVE A GOBBLEGATION, IF THE POLICE OFFICER NOW SAID, OH, I MA DE A MI STAKE , AND THIS WITNESS OR THIS EVIDENCE WAS DIFFERENT , THAT THE STATE, WITH REFERENCE TO THE DISCOVERY OF THE INVESTIGATION OF THE CRIME AND ALL OF THAT, WOULD HAVE AN OBLIGA TION TO LET THE DEFENSE KNOW IF THERE WAS A SIGNIFICANT CHANGE IN THAT.

I THINK THAT IS THE ESSENCE OF EVANS , AND I T IS THE ESSENCE OF THE CONTINUING DUTY TO DISCLOSURE. THERE IS NO REA SON TO HIDE THE TRUTH, ONCE YOU KN OW IT .

THE DIFFERENCE BETWEEN THIS CASE AND EVANS , KNOW , IS -- EVANS, THOU GH, IS EVANS ACTUALLY WAS A STATEMENT, CORRECT? IT WAS A STATEMENT THAT W ASGIVEN TO THE POLICE AND THAT THE POLICE TURNED OV ER TO THE DEFENSE.

I BELIEVE THAT'S CORRECT. I WILL RESE RVE THE REST OF MY TIME.

CHIEF JUSTICE: WE WILL HEAR YOU ON REB UTTAL .

MAY IT PLEASE THE COURT. COUNSEL. GOOD MORNING. MY NAME IS K ELLIE NIELAN , AND I AM HERE ON BEHA LF OF THE STATE OF FLORIDA.

MS. NI ELAN , LET M E G IVE YOU MY PERCEPTION , AND YOU HELP ME UNDERSTAND THIS . IT SEEMS TO ME THAT WE HAVE A WITNESS WHO IS PRE PARED T O STEP ON THE STAND AND TESTIFY , AND THE STATE HAS , EITHER, HAS INTERV ENED , HAS MANUFACTURED, HAS PARTICIPATED IN, WHAT EVER THE WORD IS , IN A TOTAL SHIFT OF THAT WITNESS'S TESTIMONY, AND WE CAN SIT HERE ALL DAY AND WE CAN CA LL A PIG A THOROUGH BRED OR WHAT HAVE YOU, WITH RE GARD T O WHETHER IT WAS A PROCEDURAL DEFECT, BUT AS WE GET DOW N AND LOOK AT WHAT ACTUALLY HAPPENED AS TO WHAT THE FIFTH DISTRICT SAID, IS THAT THERE IS JUST SO M UCH EVIDENCE AGAI NST THIS GUYTHAT THIS DOESN'T MAKE ANY DIFFERENCE, ANYWAY. ISN'T THAT REALLY WHATHAPPENED IN THIS CASE, AND ARE WE GOING TO OPERATE IN THIS STATE , WHERE REPRESENTATIVES OF THE STATE INTERCEPT WITNESSES AFTER THEY NOT ONLY AFTER A DEPOSITION BUT AFTER THEY HAVE CONFIRMED WHEN THEY APPEAR FOR TRIAL , THAT THEY ARE GOING TO TESTIFY, YES , ACCORDING TO MY DEPOSITION , AND THEN WE SUCKER THEM WERE PUTING THAT WITNESS ON T HESTAND.WHAT KIND OF SY STEM DO WE HAVE?

YOUR HONOR, I THINK THAT, WHEN A DEFENSE ATTORNEY IS GOING TO CALL A WITNESS, HE HAS SOME OBLIGATION, JUST A S A PROSECUTOR DOES , AND T HEPROSECUTOR TURNED OVER T HEDISCOVERY IN THIS CASE. THERE WAS NO ME NTION OF A FIREARM ANYWHERE IN THE DISCOVERY.THERE WAS --

WAS IT IN THE STATEMENT? LET ME SAY OBLIGATION , WAS THERE TESTIMONY THAT, IN A DEPOSITION?

YES , THERE WAS.

AND DID HE, LET ME AS K YOU A QUESTION. DID HE , ON THAT MOR NING , SAY , YOU KNOW, HERE IS THE DEPOSITION. IS THIS YOUR TESTIMONY, AND THAT WITNESS SAID , YES, SIR, IT IS?

YES. THAT IS WHAT IS REFLECTED IN THE RECORD.

WHAT DO YOU EXPE CT A DEFENSE LAWYER TO DO?

I WOULD EXPECT A DEFENSE ATTORNEY, IF THEY ARE GOING TO CRY DISCOVERY VIOLATION , TO CRY IT AT THE TIME THAT THIS WITNESS TESTIFIE S IN A DEPOSITION THAT I S A W A GUN AT THE SCE NE AND IT WAS TURNED OVER TO LAW ENFORCEMENT.THIS IS THE EVIDENCE THAT IS TOTALLY CONTRA RY TO EVERYTHING THAT THE STATE HAS TURNED OVER IN DISCOVERY. DISCOVERY IS WHERE YOU LET THE DEFENSE KNOW EXACT LY WHAT YOU ARE GOING TO PRESENT IN YOUR CASE. THE STATE PRESENTED --

JUSTICE Q UINCE .

I THINK YOU ARE MISSING THE ES SENCE OF WHAT I S BEING SAID HERE. IS THAT THE DEFENSE HAD A WITNESS PREP ARED TO SAY THAT I SAW A GUN UNDE R THE B ODY. CORRECT?

CORRECT.

THAT IS WHAT MR . BIRCHSAID IN HIS DEPOSITION.

CORRECT.

THE STATE WAS THERE WHEN THE DEPOSITION WAS TAKEN , CORRECT? AND HOW F AR IN ADVANCE WAS THAT BEFORE TRIAL?

EIGHT MONT H.

EI GHT MONTHS BEF ORE T RIAL. THEN THE STATE, ON THE MORNING OF TRIAL , G ETS T O THIS WITNESS , AND IN SOME MANNER , GETS THE WITNESS T O,THEN, CHANGE THE TESTIMONY. THAT IS EXACTLY WHAT HAPPENED, ISN'T IT?

WELL , WHAT THE RECORD SHOWS WHAT HAPPENED, IS DEFENSE COUNSEL SAID, DID YOU REVI EW YOUR DEPOSITION. IS THAT HOW YOU ARE GOING TO TESTIFY? YES.THE PROSECUTOR --

AND THERE AFTER --

ASKED ABOUT THE GUN. SPECIFICALLY ASKED ABOUT THEGUN.

AND BRINGS THE WITNESS INTO SOMEPLACE WHERE THE DEFENSE ATTORNEY ISN'T.

CORRECT.

AND TALKS ABOUT THIS GUN .

CORRECT.

AND YOU KNOW WHA T REALLY BOTHERS ME, AL SO, ABOUT, THIS IS ISN'T THERE S OME INDICATION THAT THISPROSECUTOR HAD DONE THIS BEFORE?

NO.

I THO UGHT I READ SOMEPLACE THAT THIS PROSECUTOR HAD BEEN ADMONISHED FOR DE ALING WITH A WITNESS IN BAS ICALLY THE SAME MANNER.

NOT THAT I AM AWARE O F,YOUR HO NOR.

WELL, I HO PE WE ARE NOT HERE THIS MORNING, AND WE, WITH JUSTICE LE WIS 'S INITIALQUESTIONS , WE HAVEN'T GIVEN YOU TIME TO GIVE THE STATE'S POSITION, BUT I SURE HOPE THE STATE IS NOT HERE THIS MORNING , CON DONING WHAT THIS PROSECUTOR DID.

YOUR HONOR , I AM NOT CONDONING IT, BUT I AM NOT , I AM , ALSO, SAY ING WHAT THE PROSECUTOR DID IN THIS CASE, IS NOT AGA INST A DISCOVERY RULES , AND IT IS NOT AG AINST ANY RULES THAT ARE SET FORTH.

LET ME JUST ASK YOU THIS QUESTION, BECAUSE WE WERE HERE YESTERDAY ON WHETHER PROSECUTORS SHOULD BE SUBJECT TO THE CONT INUING , THE INIT IAL PRACT ICING WITH PROFESSIONALISM, AND MR . JACOBS, THE LOBBY IST AND COUNSEL FOR THE PROSECUTOR, SAID, NO, THEY ARE , PROSECUTORS ARE DIFFEREN T. THEY HAVE EX TRA D U TIES , AND WE ENFORCE THAT IN EVERY SINGLE SEMINAR , AND T HIS IS UNDERSTOOD. ARE YOU, LET'S JUST SAY, F ORTHE SAKE OF ARGUMENT , THAT MAYBE THERE IS NOT A TECHNICAL VIOL ATION OF A SPECIFIC RULE. ARE YOU SAYI NG THAT , AFTER THIS CASE OR EVEN WITH THIS CASE, THAT YOU WOULD , FROM A PROFESSIONAL AND ETHICALPOINT OF VIEW , SAY THAT A PROSECUTOR, COULD PROC UR E A RECANTATION, WHICH MAY HAVE BEEN, NOT SAYING THAT THEY , SUPPORT PERJURY JUST THAT THEY PROCURED A RECANTATION , KNOWING THAT THAT DEFENSE LAWYER WAS GOING TO PUT HIM ON THE STAND, AND NOT A S A JUST MATTER OF PROFESSIONAL ETHIC , TELL THE DEF ENSELAWYER, YOU MAY NOT WANT , YOU BETTER NOT PUT THIS GUY ON THE STAND BECAUS E HE IS N OT GOING TO SAY WHAT YOU THINK HE IS GOING TO SAY?

I DON'T THINK IT IS THE PROSECUTOR'S RESPONSIBILITY TO LET THE DEFENSE COUNSELKNOW WHAT HIS O WN WITNESS I S GOING TO SAY, WHEN IT IS APPARENT TO THE DEFENSE ATTORNEY THAT THAT --

ISN'T IT MISCONDUCT O N THE PART OF THE PROSECUTOR HERE , AS JUSTICE LEWIS HAS LAID OUT , THE DEFENSE COUNSEL HAS DONE EVE RYTHING TO BE REASSURED ABOUT WHAT THE TESTIMONY OF THIS WITNESS WOULD BE , JUST A FEW MINUTES BEFORE HE IS GOING TO CALL HIM AS A WITNESS. YOUAL ALLUDED EARLIER, AND I THINK -- YOU ALL UDED EARLIER , AND I THINK YOU ARE ABSOLUTELY RIGHT, TO THEFACT THAT THERE ARE ALL KIND OF OTHER EVIDENCE THAT THERE WASN'T A FUN THERE, SO WHEN DEFENSE COUNSEL DECIDES T O PUT THIS WITNESS ON WHO HAS SAID THAT THERE WAS A GUN THERE , AND APPARE NTLY A HIGHLY CRED IBLE WITNESS, BECAUSE THIS IS SOMEBO DY THAT WORKED FOR THE STATE, IS THAT CORRECT?

CORRECT.

AT THAT TI ME, THE DEFENSE COUNSEL KNEW THAT HE WAS GOING TO BE FA CING REBUTTAL BY THE STATE, YOU KNOW , T HAT MIGHT BE OVERWHELMING , I N TERMS OF THERE NOT BEING A GUN THERE , AND T HEPHOTOGRAPHS OF THE SCENE AND ALL OF THAT, BUT THAT IS A CHOICE HE MAKE S, YOU KNOW , KNOWINGLY , BECAUSE THAT IS ALL ABOVE BOARD , AND ON THE TABLE, WHEN COUNSEL MAKES A DECISION, BUT IN THIS CASE , ALL RIGHT , HE TALK S TO THE WITNESS. THE WITNESS REASSURES HIM , AND NOW HE PU TS HIM ON , AND THE VERY PUR POSE , AND AM I CORRECT THIS IS THE ONLY WITNESS THAT THE DEFENSE PUT ON?

NO. THE DEFENSE PUT ON AN OTHER WITNESS.

OKAY. HOW MANY OTHER WITNESSES?

ONE OTHER WITNESS.

WHAT WAS THE OTHER WITNESS?

IT WAS THE PERSON WHO , WHEN THE VI CTIM WAS SHOT , CAME OUT OF THE BAR , CRAWLED UNDERNEATH THE CA R, AND IT WAS THE PERSON WHO PU LLED HIM OUT FROM UNDERN EATH THE CAR AND TRI ED TO RE NDER FIRST AID , UN TIL THE PARAMEDICS ARRI VE.

SO HE PUTS THIS WITNESS ON AND THERE IS A T R AP DO OR, BECAUSE THE WITNESS NOW, THE VERY PURPOSE FOR HAVING P UTHIM ON AS FAR AS HAVING SEEN THAT GUN, THE WITNESS NOW SAYS I MADE A MISTAKE. I DIDN'T SEE A GUN. YOU KNOW, IT WAS A PA GER OR WHATEVER, AND THEN , IN F INAL ARGUMENT, THE STATE ARGUES TO THE JURY , YOU KNOW , THE RE IS NO DEFENSE IN THIS CASE , AND WHAT EVER DEFENSE THERE IS , IS LUDICR OUS , AND T HEBEST WAY TO DEMONSTRATE THAT IS BY THE ABSURDITY OF THE DEFENSE LAWYE R , PUTTI NG ON THIS WITNESS HERE, WHO DIDN'T SEE A GUN. YOU KNOW, THERE WAS NO GUN. AND HOW MORE LUDI CROUS COULD THERE BE A DEFENSE , THAN WHAT HA PPENED WITH REFERENCETO THIS WITNESS AND THE DEFENSE TR YING T O MAKE SOMETHING OUT OF THAT?I AM REALLY CONCE RNED AND DISTRESSED, THAT THE ST ATE WOULD STAND HERE AND I AM GETTING THE IMPR ESSION FROM YOUR APPEARANCE , THAT YOU ARE NOT ONLY SAYING THERE WAS NOTHING W RONG WITH , THIS BUT YOU ARE SAYING THAT THIS IS GOOD ADVOCA CY ON BEHALF OF THE STATE , THAT HAS THIS EXTRA OBLIGATION TO SEE THAT JUSTICE IS DONE , AND AM I MISREADING WHAT YOU ARE SAYING?

NO , YOUR HO NOR. I AM SAYING IF WE ARE GOING TO TALK ABOUT PROFESSIONAL ETHICS HERE, I THINK WE N EE D TO LOOK AT THE COND UCT OF THE DEFENSE ATTORNEY , WHO KEEPS GOING --

LET'S STOP RIGHT NOW. THE CONDUCT O F DEFENSE COUNSEL IS NOT , REALLY WHAT THE SUBJECT IS BEFORE US. LET'S GET THRO UGH WITH THE CONDUCT OF THE STATE, NOT BY SHIFTING THE F O CUS OVER T O SOMEBODY ELSE, YOU KNOW , LIKE THE FACT THAT A VIC TIM IN A CR IME MAY HAVE HAD SOME OTHER PROBLEMS OR SOMETHING LIKE THAT . LET'S JUST STOP RIG HT HERE. IS IT YOUR PO SITION, AND THE STATE IS REPRESEN TING TO US , THAT THIS IS PERFECTLY ACCEPTABLE CONDUCT , ON BEHALF OF A PROSECUTOR. NOW, JUST ANSWER THAT QUESTION ALON E. IS THAT YOUR POS ITION T O THIS COURT?

MY POSITION IS --

JUST ANSWER MY QUESTION. IS IT YOUR POSIT ION THAT THIS IS PERF ECTLY ACCEPTABLE CONDUCT, BY A PROSECUTOR IN THE STATE OF FLORIDA?

IT DID NOT VIOLATE ANY OF THE RULE S OF TRIAL.

YES OR NO?

IN THIS CASE, YES, IT WAS ACCEPTABLE.

ALL RIGHT. THANK YOU. YES .

CHIEF JUSTICE: JUSTICE BELL, DID YOU HAVE AQUESTION?

JUSTICE PARI ENTEMENTIONED YOUR REPRESENTATIVE YESTERDAY IN A RULES CASE, AND WHAT HE SAID IS THE REASON THEY DON'T NEED TO PARTICIPATE IN THE PROFESSION ISM COURSE OFFERED BY THE BAR IS BECAUSE WE ARE MINI STERS OF JUSTICE, AND IF YOU L OOK IN THE DICTIONARY , JUSTICE SAYS WE ARE SEEKERS OF TRU TH. IF THIS PROCESS A TRUTH-SEEKING PROS HE , HOW CAN YOU SIT -- PROCESS , HOW CAN YOU SIT HERE BEFORE T HIS COURT AND DEFEND THAT THIS PROSECUTOR'S ACTIONS IN THIS CASE, FURT HERED THAT GOAL OF SEEKING THE TRUTH? WE HAVE A STATE INVESTIG ATOR THAT HE KNOWS IS GOING TO SAY, I MAD E A MIS TAKE. THAT IS EXACTLY WHY THAT PROSECUTOR TO OK HIM BACK TO THE ROOM, PRO CLUEDED DEFENSE COUNSEL, WAS BE CAUSE HE WANTED TO MAKE SURE THAT THIS GUY UNDERSTOOD THAT THIS WAS NOT A GUN BUT A PAGER AND THAT HIS TESTIMONY WAS GOING TO CHANGE , AND WHY NOT AT THAT PO INT , IF PROSECUTORS ARE SUPPOSED TO BE MINISTERS OF JUSTICE , D ID NOT THE PROSECUTOR GO TO DEFENSE COUNSEL AND SAY , LOOK, I KNOW YOU DIDN'T H AVE MUCH IN THIS CASE BEC AUSE WE HAVE GOT ALL OF THESE WITNESSES.YOU DON'T HAVE M UCH OF A DEFENSE . I REALI ZE THAT THE ONLY THING THAT YOU THINK YOU HAVE IS THIS TESTIMONY. THAT GUY IS GOING TO GET U P ON THE STAND AND NOT SAY. THAT THE ONLY MOT IVATION THAT I CAN THINK OF FOR THIS PROSECUTOR NOT TO DO THAT, IS TO DISC REDIT THE DEF ENSEIN THIS CASE AND SO THAT THE DEFENDANT WOULD NOT HAVE THE SANDWICH, WOULD HAVE BOTH SIDES OF THE OPENIN G AND CLOSING OF THE ARGUMENT OR THE REBUTTAL IN THE CL OSING ARGUMENT. WHAT OTHER MOTIVATION WOULD THERE BE NOT TO GO TO THE DEFENSE ATTORNEY AND SAY , LOOK, THIS GUY HAS CHAN GED HIS TESTIMONY. I HAVE SHOWN HIM THE PICTURES. WE HAVE LOOK ED AT IT A LITTLE MORE CLOSELY AND HE SAYS HE HAS MADE A MIST AKE.

YOUR HON OR, I DON'T K NOW WHAT THE MOTIVATIONS ARE , BUT WHAT I AM HERE ON I S WHETHER OR NOT A DISCOVERY VIALS OCCURRED . IT IS NOT WHAT THE PROSECUTOR -- VIOLATION OCCURRED. IT IS NOT WHAT THE PROSECUTOR'S MOTIVATIONS WERE. THEY HAVE N'T ALLEGED A DUE PROCESS , SOME E THICAL VIOLATION ON THE PART OF THE PROSECUTOR AND YOU GET A MISTRIAL. THE ISSUE HERE I S WHE THER A DISCOVERY VIOLATION OCCURRED.

AND DO YOU THINK THAT THERE WAS A DIS COVERYVIOLATION?

NO, I DON'T, NOT UNDER THIS COURT'S CA SES.

WHY NOT?

BECAUSE UNDER THIS COURT'S CASE IN BUSH, THE COURT SPECIFICALLY SAID A CHANGE IN TESTIMONY DOES NOTRISE TO THE LE VEL AFTER DISCOVERY VIOLATION WHICH REQUIRES A RICHARDSON INQUIRY.

SHOULD THERE BE A DIFFERENCE, IF IT IS PROCURED O R ENCOURAGED OR OBTAINED, WITH THE AFFIRMATIVE COBB DUCT OF THE -- CONDUC T OF THE STATE? IS THAT A DIFF ERENCE, A WITNESS MAY CALL AND SAY I MADE A MISTAKE, BUT SHOULD THERE BE A DIFFERENT RULE IF THE STATE PROSECUTOR TA KES SOMEBODY INTO A PR IVATE OFFICE AND LE T'S NO ON E IN THERE AND PARTICIPATES I N THE CHANGE OF THAT TESTIMONY?

NO.THERE IS NO EV IDENCE THAT HE COME ERSED THE TESTIMONY -- THAT HE COER CED THE TESTIMONY .

THE BUSH EVIDENCE MODIFIES BUSH ? WAS WASN'T THERE A CHANGE OF STATEMENT GIVEN AND THIS COURT SAID THAT THAT NEEDED TO BE DISC LOSED ?

HOWEVER, THE COURT IN EVANS SAID THAT BUSH DOES THOUGHT CONTROL WHERE THE STATE PROVIDES A DEFENDANT WITH A WITNESS STATEMENT , AS THAT TERM IS DEFINED IN 3.220.0.B.1. THIS DEFENSE DISCOVERY DEPOSITION WAS NOT A STATEMENT THAT WAS PRIDE ED -- PROV IDED BY THE STATE UNDER DISCOVERY RULES.

DIDN'T STATE V ERSUS EVANS MODIFY BUSH, TO THE EXTE NT THAT, W HEN THERE IS A STATEMENT, HOWEVER THAT TERM IS DEFINED, AND THE WITNESS'S TESTIMONY IS LATER CHANGED, THAT THE PROSECUTION DOES HAVE AN OBLIGATION TO IN FORM T HEDEFENSE COUNSEL?

NO. FIRST OFF, YOUR HONOR, THAT IS WHAT I AM SAY ING ING. IT SAYS WHERE THE STATE ORIGINALLY PROVIDES THAT STATEMENT.THE STATE DID NOT PROVIDETHAT STATEMENT.

I UNDERSTAND. WHETHER EVANS APPLIES H ERE OR NOT IS A DIFF ERENT ISS UE. WHAT I AM ASKING IS, DID EVANS NOT M O DIFY BUSH, T O THE EXTENT THAT, WHEN THERE IS A STATEMENT PROVID ED AND TESTIMONY IS LATER CHANGED , THAT THE PROSECUTOR HAS AN OBLIGATION TO INFOR M THE DEFENSE OF THE CHANGE.

BUT THE FIRST PART OF EVANS IS THAT IT HAS TO BE A STATEMENT THAT IT WAS PROVIDED BY THE STATE. THAT IS WHAT THE EVID ENCE TORT SAI D.

I UNDERSTAND. THAT WAS PART OF MY QUOTE. DOESN'T IT REQUIRE, ONCE THAT HA PPENS , THAT THE STATE INFORM THE DEFENSE OF THE CHANGE?

IF IT IS , IF IT TU RNS THE WITNESS'S TESTIMONY FROM A WITNESS WHO DIDN'T SEE ANY THING INTO A WITNESS WHO OBSERVED MATERIAL ASPECTS OF THE CRIME CHARGED , AND I DON'T THINK E ITHER PRONG IS MET IN THIS , NUM BER ONE.

LET M E SEE IF THIS IS H OWYOU WOULD WANT US TO S LICE EVANS, AND IT WOULD BE THAT , IF THE , A POLICE OFF ICER HAD FAVORABLE TESTIMONY T O THE DEFENDANT AND HAD PUT THAT IN THE FORM OF A STATEMENT, AND THEN THE DEFENSE RELIES ON THE STATEMENT, AND THEN , AGAIN, TALKS TO THE POLICE OFFICER RIGHT BEFORE, AND IT IS VERI FIED THAT THAT IS WHAT HE IS GOING TO SAY , BUT THEN A FEW MINUTES AFTER THAT, THE PROSECUTOR ME ETS AND THE POLICE OFFICER RECANTS WHATEVER WAS IN THAT STATEMENT , YOU AG REE THAT EVANS, THE DISCOVERY RULES REQUIRE THAT THAT BE , THAT THE DEFENSE ATTORN EY K NOW ABOUT THAT. CORRECT?

IF IT W AS A MA TERIAL ASPECT , A KEY WITNESS.

ALL RIGHT. IF THE , ON THE OTHER HAND , IF THE POLICE OFFICER I S LISTED AS A CATE GORY A WITNESS , BY THE STATE , WHICH IS WHAT , AND INSTEAD OF THERE BEING A STATEMENT , THE DEFENSE LAWYER , THE RE IS NO STATEMENT.THE DEFENSE LAWYER DEPOSES AND FINDS OUT WHY THAT WOULD HAVE BEEN SOMEBODY T HAT MIGHT HAVE BEEN MAT ERIAL TO HIM.

UM-H UM.

AND THEN THE SAME EXACT THING HAP PENS , AND THE WITNESS CHANGES HIS TESTIMONY, YOU ARE SAYING UNDER THAT CIRCUMSTANCE , SOMEHOW THE RULES IN OUR CASE LAW , WOULD SAY E VEN THOUGH THAT IS STRO NGER HAVING A SWO RN STATE UNDER OATH THAT YOU SORT OF CAN RELY ON , THAT UNDER THAT CIRCUMSTANCE, THE STATE WOULD HAVE NO OBLIGATION , AND YOU ARE SAYING THAT SOMEHOW, YOU WOULD L IK E THIS COURT TO TE LL THE PROSECUTORS OF THE STATE THAT THAT IS A G OOD DISTINCTION TO MAKE , T HAT THEY CAN, IF IT IS A DEPOSITION AND THE TESTIMONY CHANGES AFTERWARDS , D ON'T WORRY ABOUT IT , BUT IF IT IS A STATEMENT , AN UN SWORN STATEMENT, IT CHANGES, YOU HAVE GOT IT.

IT IS A DIFFERENT SITUATION THERE.

A REALLY INTELLIGENT , RATIONAL DIS TINCTION FOR WHAT WE TRY TO SEEK IN DISCOVERY, TO PR EVENT UNF AIR SURPRISE, TO PRE VENT TRICKERY, TO PREV ENT A MOCKERY O F THE WHOLE SYSTEM AND OF ALL OF THE PLACES FOR THIS TO HAPPEN , T O HAPPEN IN A CRIMINAL TRIAL, JUST IS , IT HIS MIND BOGG LING TO M E.

WELL, YOUR HONOR , IN YOUR SECOND SCENARIO , YOU S AYTHERE WERE ORIG INALLY NO STATEMENTS PROVIDED , JUST DEPOSITION. IN THIS CASE, WE HAVE ORIGINAL STATEMENTS. WE HAVE ORI GINAL POLICE REPORTS, AND ALL OF T H OSE REPORTS, NONE OF THEM INDICATED THAT A WEA PON WAS FOUND.

OF THIS POLICE OFFICE R?

THIS M E DICAL INVESTIG ATOR , YES , H E HAD DONE A REPOR T.

SO HIS , NOW HE HAD A STATEMENT, THEN HIS DEPOSITION CONTRADICTED THE STATEMENT?

CORRECT.

SO AT THAT PO INT , YOU ARE SAYING, WELL, THEN, ALL HE WAS REALLY DOING WAS CONFORMING HIS TESTIMONY TO HIS STATEMENT?

ORIGINA LLY Y ES. IF THERE WAS THAT BIG OF A DIFFERENCE, TO ME THAT WOULD HAVE BEEN THE TIME TO CRY DISCOVERY VIOLAT ION. SUDDENLY THIS WITNESS IS REVEALING THAT A GUN WAS FOUND!

LET ME TRY TO CLARIFYT HAT.IS IT THE FACT THAT THE MEDICAL INVESTIGATOR THEY WERE TALKING ABOUT IN THIS CASE, THAT HE DID NOT MENTION THAT THERE WAS A FIREARM, OR THAT HIS REPORT SPECIFICALLY SAID THERE WAS NO FI REARM?

I DON'T KNOW THAT. I DON'T BELIEVE IT SPECIFICALLY SAID THAT, NO, THERE WAS NO FIREARM , BUT ALL OF THE REPORTS --

I THINK IT SAID IT WAS A BEEPER, RIGHT?

PAGE R.

THE REPORT SAID IT WAS A PAGER.

WAS IT HIS REPORT OR THE FDLE'S REPORT THAT S AID THERE WAS A PAGER ON T HEBODY?

IT MA Y HAVE BEEN THE F DL E REPORT.

IS IT TRUE THAT HIS REPORT DIDN'T N EXT MENTIONONE WAY OR THE OTHER , THATTHERE WAS A FIREARM OR A PAGER?

THAERB. NO REPORT IN THIS CASE MENTION AT FIREARM .

THE DEPOSI TION IS TAKE N AND HE SAY S IT IS A FIREARM , AND THE STATE SETING THERE WITH THE STATEMENT , DOE SN'T SAY, MR. SO-AND -SO , I T REALLY WAS A PAGER , D IDN'T YOU SAY THAT? THEY DON'T CLARIFY IT AT THE TIME.

NO, FRAN KLY AND , YOURHONOR , PROSECUTOR MAY H AVE BEEN ON A P HONE CA LL OR DOING OTHER WO RK OR MAY NOT HAVE BEEN PA YING ATT ENTION. I DON'T KNOW WHY THE PROSECUTOR WASN'T PAYING ATTENTION BUT I DON'T KNOW WHY THE DEFENSE ATTO RNEY WASN'T PAYING ATTENTION. IF HE IS G OING TO RELY THIS STATEMENT FROM ONE WITNESS TO BASE HIS ENTI RE CASE O N,WHICH IS TO TALLY CONT RARY T O ALL OF THE OTHER EVIDEN CE IN THE CASE, I THINK HE HAS AN OBLIGATION TO INVESTIGATE AND SEE IF THERE REALLY IS A FIREARM IN THIS C ASE.

WE GO BA CK TO THE POI NT, IF IT WASN'T SO IMPORTANT T O THE STATE THAT THE PROSECUTOR WAS NOT PAYING ATTENTION, THEN WHY R IGHTBEFORE THE GUY IS G ETTING READY TO TAKE THE STAND, DID THE PROSECUTOR PULL HI M TO THE SIDE, EXCL UDE DEFENSE COUNSEL, SHOW HIM THE PICTURES AND MAKE SURE THAT HE, IN ESSE NCE , CLAR IFIED THAT HE WAS GOING TO SAY THAT SOME THING CONTRARY T O HIS DEPOSITION? DOESN'T THAT INDICATE HOW IMPORTANT IT WAS?

PROBAB LY, NO , I THINK WHAT PROBABLY HAPPEN ED WAS , WHEN THE PROSECUTOR FOUND OUT THE DEFENSE WAS GOING T O CALL THIS WITNESS , HE SAYS , WHY IS HE CALLING THIS WITNESS?AND THAT IS PRO BABLY THE FIRST TIME THE PROSECUTOR EVER EVEN LOOKED AT THE DEPOSITION AND SAW THAT HE HAD MENTIONED THAT THERE WAS A G UN.

SO HE KNE W THAT THE REASON HE WAS GOING TO CALL HIM WAS PROBABLY REL ATED T O THIS STATEMENT THAT IT WAS A FIREARM . VERIFIES IT WIT H THE WITNESS. THE WITNESS CHANGES THE TESTIMONY, AND THE PROSECUTOR SAYS I GOT HIM .

I DON'T KNOW THAT THAT IS NECESSARILY, I THINK THE PROSECUTOR, THIS IS, YOU KNOW, A WITNESS THAT HE WORKS WITH O N VIRT UALLY A DAILY BASIS , DOESN'T WANT THE WITNESS TO GET UP THERE AND BE EMBARRASSE D. AGAIN , THE B O TTOM LINE HERE IS --

WHY WOULD HE PRECLUDE DEFENSE COUNSEL?

PARDON ME? WHY WOULD HE PREC LUDE DEFENSE COUNSEL?

BECAUSE HE TOOK HIM INTO THE STATE ATTORNEYS OFFICE WHERE HE PROBABLY HAD ALL OF HIS WORK PROD UCT. THIS PROSECUTOR DOES N OTWORK OUT OF THAT OFFICE. HE PROBABLY HAD A S PACE THERE THAT WAS AVAILABL E TOHIM. AGAIN THERE WAS NOTHING TO STOP DEFENSE COUNSEL FROM SPEAKING TO THIS WITNESS AFTER THE PROSECUTOR TALKEDTO HIM.

THE STATE WOULD LI KE US TO TAKE THIS CASE, THEN , YOU SAY THAT IT CONF LICTS W ITH BUSH AND EVANS , AND --

CORR ECT.

AND SO YOU WOULD LIKE US TO RE TAIN JURISDICTION , AND YOUR VIEW IS WE SHOULD QUASH THE FI FTH DIS TRICT ON THAT FIRST POINT.

CORRECT.

HOW WOULD IT CONFLICT WITH EVANS? IF THEY FOUND A VIOLATION , JUST LIKE EVANS FOUND A VIOLATION, HOW IS THAT A CONFLICT WITH EVANS?

BECAUSE I DON'T BELIEVE THERE IS A VIOLATION IN T HIS CASE.

THAT IS ONE THIN G. THE QUESTION IS WHETHER THE CONFLICT WITH EVANS , HOW IS THERE A CONFLICT WITH EVANS?

BECAUSE THE DIST RICT COURT C ITED EVANS IN FINDING A DISCOVERY VIOLATION IN THIS CASE, AND I BELIEVE THAT --

HOW DOES IT CONFLICT WITH EVANS?

BECAUSE THERE IS NO DISCOVERY VIOLATION IN THIS CASE . THE DISTRICT COU RT , I BELIEVE THEIR EXACT LANGUAGE WAS THE FAILURE TO DISC LOSE A SIGNIFICANT CHANGE IN A WITNESS'S TESTIMONY IS AS MUCH A DISCOVERY VIOLATION AS COMP LETE FAILURE TO DISCLOSE THE WITNESS. WELL, THAT IS NOT --

WHAT IN EVANS CONTRA DIBTS THAT? WHAT RULE OF LAW IN EVANS CONTRADICTS THAT?

WHERE EVANS CLARIFIED BUSH .

WHERE DOES IT CONTRA DISTRICT THE STATEMENT THAT YOU JUST READ?

BECAUSE UNDER BUSH , BUSH APPLIES WHERE THE STATE PROVIDES, BUSH DOES NOT APPLY , WHERE THE STATE PROVIDES DEFENDANT WITH A WITNESS STATEMENT. IN OTHER WORDS, THE DISTRICT COURT SHOULD HAVE APP LIED BUSH IN THIS CASE. THEY SHOULD NOT HAVE APPL IE D EVANS IN THIS CASE, BEC AUSEUNDER THIS COUR T'S CLARIFICATION OF BUSH IN EVANS , THIS ST ILL FITS UNDER THE BUSH SCENARIO.

DID YOU ALL EGE ANYWHERE IN YOUR BRIEF , THAT THE DCA OPINION CONFLICTS WITH EVANS OR BUSH?

NO. NO. NOT IN OUR JURISDICTIONAL BRIEF BUT CERTAINLY IN MY MERITS BRIEF, YES.

CHIEF JUSTICE: YOUR TIME HAS EXPIRED.

OKAY.I WOULD AS K THIS COURT , AS YOU SAID JUSTICE PARIENTE, TO QUASH THE DECISION OF THE FI FT H.THANK YOU.

YOUR HONOR, FIRST OF ALL , THERE IS NO DISCOVERY VIOLATION AT THE TIME THAT DEFENSE COUNSEL IS TAKING MR . BIRCH 'S DEP OSITION.THERE IS NO REASON THAT DEFENSE COUNSEL WOULD JUMP UP AND SAY THERE IS A DISCOVERY VIOLATION, WHEN MR . BIRCH SAYS I SAW A GUN , AND IT WAS TURNED OVER TO LAW ENFORCEMENT . AND THE DUTY OF DISCLO SURE