1 

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D21-2957

 LT Case No. 2019-CF-001073-A 

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JUSTICE MICHAEL GUROLLA, 

Appellant,

v.

STATE OF FLORIDA, 

Appellee.

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On appeal from the Circuit Court for Citrus County.

Richard A. Howard, Judge.

Rick A. Sichta and Susanne K. Sichta, of The Sichta Firm, LLC,

Jacksonville, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Roberts J. 

Bradford, Jr., Assistant Attorney General, Daytona Beach, for 

Appellee. 

September 8, 2023 

WALLIS, J. 

Justice Michael Gurolla (Appellant) appeals the judgment 

and sentence entered after he was convicted of attempted seconddegree murder and discharging a firearm in public from a vehicle. 

Appellant alleges that the trial court erred when it found that the 
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State did not commit a discovery violation by failing to disclose

that its lead investigator would testify as an expert and in failing 

to conduct a Richardson1 hearing on the matter. We find that the 

investigator provided expert opinion testimony when he opined 

that the victim’s injuries were not consistent with Appellant’s 

claim that he shot at the ground instead of at the victim. Because 

the State failed to disclose this expert testimony before trial, the 

trial court should have held a Richardson hearing on the discovery 

violation. Therefore, we reverse and remand for a new trial. 

Facts

This case stems from an altercation between Appellant and 

the victim. Appellant ultimately fired his gun from his vehicle and 

the victim received gunshot wounds in both of his legs. As a result 

of these events, the State charged Appellant with one count of 

attempted first-degree murder with a firearm and discharging a 

firearm in public from a vehicle. Appellant’s defense at trial was 

that he fired the gun while aiming at the ground and lacked 

premeditation or an intent to kill the victim.

Approximately three weeks before trial, Appellant filed a 

motion in limine, seeking to exclude opinion testimony from the 

lead investigator, Sergeant Michael Laborda, or others regarding 

the “would be” trajectory of the projectiles that were fired from 

Appellant’s vehicle toward the victim. The motion in limine 

argued that this testimony should be prohibited because the 

witnesses did not know the location of the victim and Appellant 

when the gun was fired and the testimony would lack any 

foundation because there was no reconstruction of the crime scene. 

Noticeably absent from the motion was any mention of medical 

opinion testimony as to how the gun or its ammunition caused the 

victim’s specific injuries. The trial court denied the motion in 

limine.

At trial, Sergeant Laborda provided opinion testimony about 

different aspects of firearms and ammunition, including hollowpoint bullets. He also testified that the injuries sustained by the 

victim were not consistent with Appellant’s theory that he aimed

1 Richardson v. State, 246 So. 2d 771 (Fla. 1971).
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the gun straight at the ground when he fired. During Sergeant 

Laborda’s testimony, the following relevant exchanges occurred:

PROSECUTOR: Okay. And where—sorry. Can 

you go show your arm where he was again? 

SGT. LABORDA: He said he was like this 

pointing down like this. 

PROSECUTOR: Straight down to the ground? 

SGT. LABORDA: Yeah. 

PROSECUTOR: Okay. Based on your 

knowledge of—of firearms—you said you've 

been on SWAT for—for three years—is that 

consistent with the injuries sustained by the 

victim? 

. . . .

SGT. LABORDA: No, that is not consistent.

. . . .

PROSECUTOR: Sorry. I almost forgot. 

Typically, when you have fired rounds of hollowpoint ammunition in the past, when it hits the 

ground, what happens to the projectile? 

SGT. LABORDA: It fragments into multiple 

pieces. 

PROSECUTOR: Okay. So are the wounds 

sustained by the victim, which you saw, 

consistent with a wound that would have come 

from a fragmented bullet like that? 

SGT. LABORDA: No. 
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PROSECUTOR: Okay. Why do you say that? 

SGT. LABORDA: Fragmented bullet typically 

leaves more of a slicing or a cutting type of a 

wound because the jacket and the round comes 

apart. 

. . . .

SGT. LABORDA: The—the lead and the jacket 

and the round comes apart and becomes small 

little sharp objects. So they create more of a 

slicing wound where an impact round creates 

more of a punch hole.

During cross-examination, defense counsel asked Sergeant 

Laborda if it was more likely that Appellant shot at the ground and 

the bullet ricocheted off of the driveway and hit the victim.

Sergeant Laborda answered that he did not see any evidence 

supporting that version of events because there were no marks on 

the ground and there was no evidence that the bullet was 

fragmented when it struck the victim. Sergeant Laborda further 

testified that he had never seen a bullet hit concrete and not 

fragment.

After the State rested, Appellant testified that the victim 

was aggressive during their encounter. Appellant admitted that 

he shot his firearm from his vehicle, but he claimed that he shot at 

the ground and he denied shooting at the victim.

Analysis

“Florida law allows an expert witness to testify if specialized 

knowledge will assist the jury in understanding the evidence or in 

determining a fact in issue, provided the testimony can be applied 

to the evidence at trial.” Gamble v. State, 644 So. 2d 1376, 1377 

(Fla. 5th DCA 1994). A witness who is “qualified as an expert by 

knowledge, skill, experience, training, or education may testify 

about it in the form of an opinion or otherwise,” if certain 

requirements are met. § 90.702, Fla. Stat. (2021). 
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The Florida Supreme Court has explained that a “witness 

may be qualified as an expert through specialized knowledge, 

training, or education, which is not limited to academic, scientific, 

or technical knowledge. An expert witness may acquire this 

specialized knowledge through an occupation or business or 

frequent interaction with the subject matter.” Chavez v. State, 12 

So. 3d 199, 205 (Fla. 2009). Thus, courts have found that law 

enforcement officers may testify as experts when the “opinion is 

based on specialized knowledge derived from training or 

experience and beyond the understanding or experience of the 

average juror.” Jackson v. State, 89 So. 3d 1011, 1020 (Fla. 4th 

DCA 2012); see Smith v. State, 7 So. 3d 473, 497 (Fla. 2009) 

(explaining that “police officers have testified as expert witnesses 

regarding the street language in the drug culture and explained to 

the jury their interpretation of the words used, which occurred in 

contexts in which their normal lexicographical meanings would be 

illogical and meaningless”); Roberts v. State, 313 So. 3d 138, 139 

(Fla. 4th DCA 2021) (concluding detective’s testimony regarding 

the definition of the term “peter roll” was expert testimony).

In contrast to expert witnesses, lay witnesses generally “may 

not testify in terms of an inference or opinion, because it usurps 

the function of the jury.” Floyd v. State, 569 So. 2d 1225, 1231–32 

(Fla. 1990). However, 

[i]f a witness is not testifying as an expert, the 

witness's testimony about what he or she 

perceived may be in the form of inference and 

opinion when: 

(1) The witness cannot readily, and with equal 

accuracy and adequacy, communicate what he 

or she has perceived to the trier of fact without 

testifying in terms of inferences or opinions and 

the witness's use of inferences or opinions will 

not mislead the trier of fact to the prejudice of 

the objecting party; and 

(2) The opinions and inferences do not require a 

special knowledge, skill, experience, or training. 
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§ 90.701, Fla. Stat. (2021). “Lay witness opinion testimony is 

admissible if it is within the ken of an intelligent person with a 

degree of experience.” Floyd, 569 So. 2d at 1232. Furthermore, 

opinion testimony of a lay witness is only allowed “if it is based on 

what the witness has personally perceived.” Fino v. Nodine, 646 

So. 2d 746, 748 (Fla. 4th DCA 1994). Therefore, “lay opinion 

testimony typically involves matters such as distance, time, size, 

weight, form and identity.” Id. at 748–49.

Finally, the State is required to disclose to the defense 

“expert witnesses who have not provided a written report and a 

curriculum vitae or who are going to testify.” Fla. R. Crim. P. 

3.220(b)(1)(A)(i). The failure to designate a witness in discovery as 

an expert witness constitutes a discovery violation. Luis v. State, 

851 So. 2d 773, 776 (Fla. 2d DCA 2003). When the State commits 

a discovery violation, the trial court must conduct a Richardson

hearing to determine whether the State’s failure to comply with 

the discovery rules prejudiced the defendant. Bess v. State, 208 So. 

3d 1213, 1214 (Fla. 5th DCA 2017).

We conclude that Sergeant Laborda’s testimony that: (1) 

hollow point bullets fragment into pieces when they ricochet off the 

ground; (2) bullet fragments cause more slicing or cutting type 

wounds than whole bullets; and (3) the victim’s wounds were 

inconsistent with being caused by bullet fragments, was expert 

opinion testimony rather than lay opinion testimony because it 

was not “within the ken” of the average juror. Instead, it was 

presumably based on Sergeant Laborda’s specialized experience as 

a police officer. See Floyd, 569 So. 2d at 1232 (concluding that 

police officers’ testimony that the victim’s injuries appeared to 

have occurred at the same time and that the wound to the top of 

the victim’s hand was a defensive wound required “special 

knowledge, skill, experience, or training” and, therefore, it was 

error to allow that opinion testimony without requiring the State 

to establish that officers were experts); Fittipaldi USA, Inc. v. 

Castroneves, 905 So. 2d 182, 185 (Fla. 3d DCA 2005) (explaining 

that witness’s legal conclusions depended on the use of his legal 

experience and specialized training and, therefore, it should have 

only been admitted as expert testimony under section 90.702).
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In addition, Sergeant Laborda’s testimony was not based on 

his perception of the shooting and, therefore, it was not 

appropriate lay opinion testimony. See Kolp v. State, 932 So. 2d 

1283 (Fla. 4th DCA 2006) (concluding that trial court erred in 

allowing lay witness to offer testimony about purpose of hollowpoint bullets where that testimony was not related to witness’s 

perception).

Because Sergeant Laborda offered expert testimony on the 

subject of the victim’s injuries and whether they were consistent 

with Appellant shooting at the ground, the State was required to 

disclose him during discovery as an expert witness. See Fla. R. 

Crim. P. 3.220(b)(1)(A)(i); Luis, 851 So. 2d at 776. The State’s

failure to do so was a discovery violation and the trial court should 

have held a Richardson hearing on the matter. See Bess, 208 So. 

3d at 1214; Luis, 851 So. 2d at 776. 

While the trial court’s failure to hold a Richardson hearing 

is not per se reversible error, “harmful error is presumed.” M.H. 

v. State, 151 So. 3d 32, 37 (Fla. 3d DCA 2014). An appellate court 

will only find that the failure to hold a Richardson hearing is 

harmless error if it “can ascertain, beyond a reasonable doubt, that 

there is no reasonable possibility that the defendant’s trial 

preparation or strategy would have been materially different had 

the violation not occurred.” Bess, 208 So. 3d at 1214; see Scipio v. 

State, 928 So. 2d 1138, 1148–49 (Fla. 2006) (explaining that 

harmless error analysis in discovery violation cases does not focus 

on substantive prejudice, i.e. whether the discovery violation 

would have made a difference in the verdict).

Although the State claims that any error was harmless, it 

erroneously focuses on substantive prejudice rather than whether 

Appellant was procedurally prejudiced by the discovery violation. 

See Scipio, 928 So. 2d at 1148–49. And, after a review of the 

record, we cannot conclude beyond a reasonable doubt that 

Appellant’s trial preparation or strategy would not have been 

different had the discovery violation not occurred. If Appellant had 

been given advance notice that Sergeant Laborda would offer 

opinions regarding the victim’s injuries and whether they were 

consistent with Appellant shooting at the ground, he might have

retained medical or ballistics experts to counter the State’s 
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evidence.2 Therefore, because we cannot determine whether 

Appellant was procedurally prejudiced by the State’s discovery 

violation, it is impossible to conclude that the trial court’s failure 

to hold a Richardson hearing was harmless error. Accordingly, we 

reverse and remand for a new trial.3

 REVERSED and REMANDED for a new trial.

HARRIS and PRATT, JJ., concur.

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Not final until disposition of any timely and authorized motion 

under Fla. R. App. P. 9.330 or 9.331.

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2 The fact that Sergeant Laborda was deposed before trial 

does not alter our analysis. The record on appeal does not contain 

a transcript of Sergeant Laborda’s deposition and, therefore, we 

cannot determine whether Appellant was aware that Sergeant 

Laborda would offer expert testimony on these subjects. See Kipp 

v. State, 128 So. 3d 879, 884 (Fla. 4th DCA 2013) (concluding that 

state failed to establish that appellant was not procedurally 

prejudiced by discovery violation, even though witness had been 

deposed before trial; deposition was not included in record and, 

therefore, it was unclear whether appellant knew about the expert 

testimony before trial).

3 Given our decision to reverse and remand for a new trial, 

we decline to address Appellant’s claim that the trial court 

committed fundamental error during the sentencing hearing.