### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

JERRY WARD
, Appellant,

v.

STATE OF FLORIDA
, Appellee

.

No. 4D 13

- 417

[ May 27, 2015 ]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County ; Barbara McCarthy , Judge; L.T. Case No. 09

- 004216

CF10A

.

Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

C IKLIN
, J

.

Jerry Ward appeals from his conviction s and s entence s for trafficking in cocaine by possession of 200 grams or more but less than 400 grams

of cocaine , possession of alprazolam, possession of cannabis, possessi on of drug paraphernalia

, and resisting an officer without violence. Because the trial court erred by not addressing an alleged state discovery violation, reversal is required

.

During the execution of a search warrant, Detective Todd Hill

observed Ward climbing out of th e window of a house where a trove of drugs was confiscated. Ward fled the scene but was transported to the hospital after an officer restrained him by taser. The search also

uncovered more than $8,000 in cash. Much of the cash was made up of

small denomination bills

– twenties, tens, and fives.

Prior to trial, the state filed its discovery exhibit. Detective Melvin Burroughs was listed as a Category A witness but not designated as an expert. In the portion of the exhibit entitled “Reports or statements of2

experts,” the state provided the follow ing:

Yes. Chemists Lab #09

- 6247, Ballistics Lab #0 9

- 6178 (Additional Testing To Be Done By Chemists Before And/Or During Trial), Firearms, Fingerprints, Handwriting, Medical,

and Listed Police Officers

.

The curriculum vitae for any Category B expert witn ess is available for inspection upon request.

(Emphasis added).

Two crime lab employees were listed as category B witnesses; Burroughs was not.

Prior to trial, d efense counsel moved for and was able to secure an order in limine excluding evidence of the usual practice s of drug dealers. Deep into trial and notwithstanding the p re

- trial order of exclusion , the state sought to have Detective Burroughs treated as an e xpert on street

level narcotics and the modus operandi of street

- level drug dealers

. Defen se counsel objected, arguing that

— because of the pre

- trial non

disclosure

— he did not know Burroughs would be testifying as an expert. He pointed out that the state did not list Burroughs as an expert witness,

and thereupon defense counsel requested a hear ing pursuant to
Richardson v. State , 246 So. 2d 771 (Fla. 1971)

.

The state argued it complied with its discovery obligation, as “Listed

Police O fficers” were recited in the portion of the state’s discovery exhibit disclosing “Reports or statements of ex perts.” With minimal discussion,

t he trial court agreed with the state that there was no discovery violation, and ruled that Burroughs could testify as an expert. Burroughs took the

stand and testified that the small denominations of the cash found in th e house were consistent with street

- level drug sales.

We have elaborated on a trial court’s role when a discovery violation has been alleged: If there is a possibility of a discovery violation, “the trial court must inquire as to whether the violation (1) was willful or inadvertent; (2) was substantial or trivial; and (3) had a prejudicial effect on the aggrieved party's trial preparation.” Thom as v. State , 63 So. 3d 55, 59 (Fla. 4th DCA 2011) (citation and quotation marks omitted). Further,

Where a discovery violation has occurred, the failure to

conduct a Richardson hearing is not per se reversible error, but rather is subject to a harmless error analysis.3 See State v. Schopp , 653 So. 2d 1016, 1020

– 21 (Fla. 1995). The relevant inquiry is “whether there is a reasonable possibility that the discovery violation

‘ma ter ially hindered the defendant’ s trial preparation or strategy.’ ” Scipio v. St ate, 928 So. 2d 1138, 1150 (Fla. 2006). . . . An analysis of procedural prejudice “considers how the defense might have responded had it known about the undisclosed piece of evid ence and contemplates the possibility that the defense could have acted to counter the harmful effects of the discovery

violation.” Scipio , 928 So. 2d at 1149.

Kipp v. State , 128 So. 3d 879

, 883 (Fla. 4th DCA 2013) (quoting Durrance

v. State

, 44 So. 3d 2 17, 221 (Fla. 2010)).

The required focus is on how the defense might have responded and

not on whether the undisclosed evidence affected the verdict. Scipio , 928

So. 2d at 1149

. The state’s burden to show the discovery violation is

harmless is “extraor dinarily high.” Hicks v. State , 45 So. 3d 518

, 524 (Fla. 4th DCA 2010) (quoting Cox v. State , 81 9 So. 2d 705, 712 (Fla. 2002))

. ‘“ [T]he vast majority of cases’ will not have a record sufficient to

supp ort a finding of harmless error . . . . ” Scipio , 928 So. 2d at 1148 (quoting Schopp , 653 So. 2d at 1021 )

.

The version of the discovery rule in effect when the state filed its

exhibit re quired the state to disclose Category A witnesses , including “expert witnesses who have not provided a written rep ort and a curriculum vitae or who are going to testify to test results or give opinions that will have to meet the test set forth in Frye v. United States

, 293 F. 1013 (D.C. Cir. 1923).” F la. R. Crim. P. 3.220(b)(1)(A)(i) (2009). Any other experts were r equired to be disclosed as Category B witnesses.

See Fla. R. Crim. P. 3.220(b)(1)(A)(ii) (2009) (requ iring disclosure of “[a]ll witnesses not listed in either Category A or Category C.”) 1

However, in 2010, while the trial in this case was pending, the r ule

was a mended to delete language at the end of the provision regarding Category A expert witnesses. The rule now requires disclosure of “expert witnesses who have not provided a written report and a curriculum vi tae or who are going to testify.” Fla. R . Crim. P. 3.220(b)(1)(A)(i) (2010).

1 Category C witnesses are “witnesses who performed only ministerial functions or whom the prosecutor does not intend to call at trial and whose involvement with and knowledge of the case is fully set out in a police report or other

statement furnished to th e defense.” Fla. R. Crim. P. 3.220(b)(1)(A)(iii) (2009).4

Here, the state listed Detective Burroughs as a Category A witness but

did not designate him as an expert. O ur cases have made it clear that under either version of the rule, designation as an expert is required

. See Kipp

, 128 So. 3d at 881 ( applying amended version of the rule and finding that it is not sufficient to list an expert witness as a Category A witness, and that the state has to “indicate that the witness will testify as an expert” ) ; Thomas, 63 So. 3d a t 59 ( applying former version of rule and finding that “[f]ailing to list a witness as an expert, even when the witness is listed as a Category A witness, is a discovery violation”) ; s ee also Kearse v. State , 770 So. 2d 1119, 1127 (Fla. 2000) (recognizing that rule 3.220 “imposes obligations on both parties, including a list of expert witnesses”).

We recognize that our sister court has opined in dicta that under the amended version of the rule, it may be enough to list an officer who will testify as an e xpert as a Category A witness, even without designating the witness as an expert. See Henry v. State , 42 So. 3d 328 , 329 n.2 (Fla. 2d DCA 2010). We disagree. First, it does not appear that the decisions in the pre

- amendment cases hinged on the language of rule 3.220(b)(1)(A)(i)

that has since been deleted. Second , we note that to read the amended rule as permitting the state to list expert witnesses without designating them as such would go against the very purpose and spirit of discovery rules. As the Florida Supreme Court has explained:

Florida’s criminal discovery rules are designed to prevent surprise by either the prosecution or the defense. Their purpose is to facilitate a truthful fact

- finding proc ess. . . .

This Court has held that the chief purpose of our discovery

rules is to assist the truth

- finding function of our justice system and to avoid trial by surprise or ambush.

Because full and fair discover y is essential to these important goals, we have repeatedly emphasized not only compliance with the technical provisions of the discovery rules, but also adherence to the purpose and spirit of those

rules in both the criminal and civil context.

Scipio , 928 So . 2d at 1144 (internal citations and quotation marks omitted).

We find that the state’s reference to “Listed Police O fficers” in the portion of the exhibit related to reports or statements of experts was5

wholly insufficient to bring the state in complian ce with its discovery obligation regarding the designation of Detective Burroughs as an expert

witness

.

Here, Burroughs’ testimony was brief. Even so, the state has an “extraordinarily high” burden in establishing that a discovery violation is

harmless . On this record, we cannot say beyond a reasonable doubt that

Ward was not procedurally prejudiced by the discovery violation. See Schopp , 653 So. 2d at 1021 (“[O]nly if the appellate court can say beyond a reasonable doubt that the defense was not proc edurally prejudiced by the discovery violation can the error be considered harmless.”).

Accordingly, we have no choice but to reverse and remand for a new

trial.

Reversed and remanded for new trial

.

S TEVENSON and K LINGENSMITH

, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.