State's Duty to Notify the Defendant of Changes In the Statement of a Witness
Does the State Have a Continuing Duty to Notify the Defendant of Any Material Changes in the Report or in the Statement of a Witness?
In Jones v. State, 514 So.2d 432 (Fla. 4th DCA 1987), the State charged the defendant with second-degree murder and false imprisonment based upon the shooting death of the victim. See id. at 433.
After the defendant invoked the discovery provisions of rule 3.220, the State identified Victor Hendley as a witness and furnished the defendant with a sworn statement given by Hendley shortly after the shooting. See id.
In the statement, Hendley asserted that the victim said, "Man, you done shot me." Id.
During opening statement at trial, however, the prosecutor indicated that Hendley would be testifying that the victim said, "Red, not sic me." Id.
Defense counsel moved for a mistrial on the basis that the State had failed to disclose to the defendant prior to trial that Hendley would testify to such statement being made by the victim. See id.
During a colloquy, it became clear that Hendley had told the prosecutor at least one week prior to trial that Hendley would testify about the victim's dying declaration identifying "Red." See 514 So.2d at 433-34.
After conducting the colloquy, the trial court denied the defendant's motion for mistrial. See id. at 433.
On appeal, the Fourth District addressed "whether the state has a continuing duty under Rule 3.220(f) the predecessor to current rule 3.220(j) to notify the defendant when a witness informs the state of his intention to materially alter information contained in a sworn statement furnished by the state to the defendant." Id. After considering the State's duty to provide the defendant with any written or recorded statement of a witness, as well as the continuing duty of disclosure under the discovery rules, the Fourth District held that "a material discovery violation occurred when the state did not inform appellant that the witness Hendley would testify that the decedent identified appellant as the person who had shot the decedent." 514 So.2d at 435.
In so holding, the Fourth District distinguished its prior decision in Whitfield, where it had determined that a witness's oral statements made to the prosecutor after a suppression hearing were not discoverable, in part because such statements were not written or recorded.
The Jones court reasoned:
Whitfield did not involve a change in information furnished pursuant to Rule 3.220.
However in this case, the state made discovery pursuant to the defendant's request and furnished the defendant with Hendley's sworn statement pursuant to Rule 3.220(a)(1)(ii).
We think the court in Neimeyer v. State, 378 So.2d 818 (Fla. 2d DCA 1979) correctly concluded that once discovery has been made to a defendant that the state has a continuing duty under Rule 3.220(f) to notify the defendant of a substantial and material change in the report or as in this case in a witness statement containing an important factual scenario. Jones, 514 So.2d at 435.