Can Changed Testimony Be Considered a Discovery Violation ?
In Bush v. State, 461 So. 2d 936 (Fla. 1984), a jury found the defendant guilty of first-degree murder, robbery with a firearm, and kidnapping in relation to the abduction and death of a convenience store clerk. See 461 So.2d at 937-38.
After being sentenced to death on the first-degree murder charge, the defendant directly appealed to this Court. See id.
On appeal, the defendant asserted that the trial court should have either conducted a Richardson hearing or granted a mistrial because a state investigator's trial testimony contradicted his pretrial deposition testimony. See 461 So.2d at 938.
Specifically, the investigator testified in a pretrial deposition that a clerk from a nearby convenience store-which had been visited by the defendant-did not identify any photographs of the defendant during a photo lineup. See id.
At trial, however, the investigator changed his prior testimony and testified that the store clerk did identify the defendant's photograph during a photo lineup. See id.
After considering the defendant's arguments, this Court held that "[t]he prosecutor's failure to inform the defense of this change of testimony is not a discovery violation and does not constitute the absolute legal necessity required for a mistrial." Id.
In so holding, this Court reasoned:
When testimonial discrepancies appear, the witness' trial and deposition testimony can be laid side-by-side for the jury to consider.
This would serve to discredit the witness and should be favorable to the defense.
Therefore, unlike failure to name a witness, changed testimony does not rise to the level of a discovery violation and will not support a motion for a Richardson inquiry.Id.;
See also Johnson v. State, 696 So.2d 326, 333 (Fla. 1997) (reciting language in Bush in analyzing changed testimony issue); Street v. State, 636 So.2d 1297, 1302 (Fla. 1994) (same).