DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JAMES CLARK,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D11-4357

[March 2, 2016]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; John Kastrenakes, Judge; L.T. Case No. 

2011CF000175AXX.

Benjamin S. Waxman of Robbins, Tunkey, Ross, Amsel, Raben & 

Waxman, P.A., Miami, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale 

Surber, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

In appealing his conviction for DUI manslaughter, appellant raises 

multiple issues, mainly dealing with the use of a police officer as an expert 

in accident reconstruction, as well as the trial court’s failure to grant a 

challenge for cause to a juror and improper closing argument by the State. 

These errors were not properly preserved before the trial court and do not 

constitute fundamental error, thereby requiring affirmance of the 

conviction and sentence.

The accident giving rise to the charges occurred one evening on Yamato 

Road in Palm Beach County, a four-lane divided road. The elderly victim 

was attempting to make a u-turn from the eastbound u-turn lane. She 

inched out into oncoming traffic and was struck by appellant, who was 

driving westbound. The victim died in the accident. Appellant’s blood 

alcohol level was between 0.135 and 0.145 milligrams per hundred 

milliliters of blood, exceeding the legal limit of 0.08.
2

At trial, the State presented two traffic homicide investigators. The first 

investigator, who had been on the scene, described the damage to the 

vehicles, as well as the tire tracks and location of the vehicles at rest. 

Based upon his observations, he thought speed was a contributing factor

to the accident. He had also encountered appellant and smelled alcohol 

on his breath. The second traffic investigator performed an accident 

reconstruction to determine the speed of the vehicles. He testified that in 

his opinion, appellant was travelling eighty-two miles per hour at impact. 

He opined that had appellant been driving at the forty-five miles per hour 

speed limit, the accident would not have happened.

To counter that testimony, the defense presented an accident 

reconstruction expert to testify that, based upon the crush of the vehicles, 

appellant could not have been travelling at eighty-two miles per hour. He 

testified that the collision was unavoidable.

In rebuttal, the State recalled the first traffic investigator to rebut the 

defense expert’s testimony with respect to the crush analysis. The defense 

claimed surprise, as this witness had not been listed as an expert witness. 

Counsel asked for a Richardson1 hearing, which the court conducted. The 

State admitted that nothing in the first investigator’s testimony concerned 

the method and manner of crush damage. The court asked if there was 

any information provided by any other expert that would have put the 

defendant on notice that the State disputed how the defense expert 

conducted his crush analysis and speed calculation. The State noted that 

it had offered its own accident reconstruction expert, and the defense had 

deposed him.

The court found that there had been a discovery violation and that the 

use of a different witness (the first investigator for the accident 

reconstruction expert) was intentional. Regarding procedural prejudice, 

defense counsel maintained that he was prejudiced because he didn’t 

know what the first investigator would say in rebuttal. But the State 

countered that it had always intended to use the accident 

reconstructionist who had offered opinions on crush factors. The court 

then suggested that an adjournment for the day would allow the defense 

to have an opportunity to speak to the first investigator. Defense counsel 

rejected that remedy, saying he needed only five or ten minutes to talk 

with the investigator. The judge then recessed the court. When court 

reconvened, the court asked defense counsel whether he was prepared to 

proceed, and counsel responded affirmatively. The trial continued, leading 

1 Richardson v. State, 246 So. 2d 771 (Fla. 1971).
3

to a guilty verdict. From the conviction and sentence, appellant brings 

this appeal.

Appellant first claims that the court erred in failing to conduct an 

adequate Richardson hearing. See Richardson, 246 So. 2d at 775-76. We 

find this to be without merit, as the trial court agreed that there had been 

a Richardson violation and provided appellant with a remedy. The defense 

counsel declined an adjournment, opting for a short recess to talk to the 

expert. After speaking to the expert, defense counsel pronounced himself 

ready to proceed. No further objection was made.

The factors that a court needs to consider when conducting a 

Richardson hearing to determine if a discovery violation has 

occurred are: 1) whether the violation was inadvertent or 

willful; 2) whether it was trivial or substantial, and most 

importantly; 3) whether it has prejudiced the opposition’s 

ability to prepare for trial.

Irish v. State, 889 So. 2d 979, 981 (Fla. 4th DCA 2004). Where a violation 

has occurred, exclusion of evidence or a witness may be a remedy but 

“should only be imposed where there is no other adequate remedy.” 

McDuffie v. State, 970 So. 2d 312, 321 (Fla. 2007).

A Richardson violation is subject to a harmless error analysis. M.N. v. 

State, 724 So. 2d 122, 124 (Fla. 4th DCA 1998). State v. Schopp, 653 So. 

2d 1016 (Fla. 1995), instructs on the evaluation of harmless error on 

appeal:

In determining whether a Richardson violation is harmless, 

the appellate court must consider whether there is a 

reasonable possibility that the discovery violation 

procedurally prejudiced the defense. As used in this context, 

the defense is procedurally prejudiced if there is a reasonable 

possibility that the defendant’s trial preparation or strategy 

would have been materially different had the violation not 

occurred. Trial preparation or strategy should be considered 

materially different if it reasonably could have benefited the 

defendant. In making this determination every conceivable 

course of action must be considered. If the reviewing court 

finds that there is a reasonable possibility that the discovery 

violation prejudiced the defense or if the record is insufficient 

to determine that the defense was not materially affected, the 

error must be considered harmful. In other words, only if the 

appellate court can say beyond a reasonable doubt that the 
4

defense was not procedurally prejudiced by the discovery 

violation can the error be considered harmless.

Id. at 1020–21.

Here, the trial court determined that there was a discovery violation 

and gave defense counsel the remedy he requested—to talk with the State’s 

investigator. After availing himself of this opportunity, defense counsel 

pronounced himself ready to proceed. If defense counsel needed more time 

or determined that the remedy was inadequate, it was incumbent on 

counsel to notify the court of any inadequacies. Because counsel was 

ready to proceed, we can clearly state that any Richardson violation was 

harmless beyond a reasonable doubt under the standard of State v. 

DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).

In addition, appellant claims that the trial court committed 

fundamental error in allowing the first investigator to testify as an expert 

in crush analysis and speed when the qualifications of the officer to so 

testify were not placed in evidence. The defense never argued below that 

the investigator was not qualified to render an opinion on crush or speed 

change, and instead argued a discovery violation. The issue therefore was 

not preserved. See Anderson v. State, 863 So. 2d 169, 181 (Fla. 2003)

(holding that a claim was not preserved for review where the defense failed 

to object on the specific grounds advanced on appeal). Moreover, not only 

was the investigator’s testimony not objected to, he had already testified 

to his extensive qualifications in accident reconstruction and speed 

analysis in the State’s case, even though he was not tendered as an expert. 

Therefore, it appears from the record that he was qualified to testify.

Nor would any omission of his qualifications amount to fundamental 

error, as there is no claim that it “reach[ed] down into the validity of the 

trial itself to the extent that a verdict of guilty could not have been obtained 

without the assistance of the alleged error.” State v. Delva, 575 So. 2d 

643, 644 (Fla. 1991) (quoting Brown v. State, 124 So. 2d 481, 484 (Fla. 

1960)); see also Daniels v. State, 121 So. 3d 409, 417 (Fla. 2013). This is 

unlike Wright v. State, 348 So. 2d 26 (Fla. 1st DCA 1977), relied on by 

appellant, which concluded that it was fundamental error to allow a 

medical examiner to testify regarding premeditation in a murder case, for 

which he was unqualified to give an opinion. Id. at 31. As this was the 

only evidence of premeditation in Wright, the error satisfied the definition 

of fundamental error, in that the verdict could not have been obtained 

without the medical examiner’s testimony. Id. In this case, in contrast, 

there was substantial other evidence from which the jury could have 

reached its verdict.
5

Also unpreserved is appellant’s contention that the trial court erred in 

denying his challenge for cause to a juror. In order to preserve such issues 

for appeal, a defendant must object to the juror, exhaust all peremptory 

challenges, request an additional challenge, and identify a specific juror 

that he or she would have excused if given an additional challenge. See 

Matarranz v. State, 133 So. 3d 473, 482 (Fla. 2013). Here, although 

defense counsel requested a challenge for cause as to a juror, exhausted 

his peremptory challenges, and asked for an additional one, he did not 

identify a specific juror upon whom he would have exercised a challenge if 

available. Therefore, we do not address this issue on the merits.

Likewise, appellant’s claims of prosecutorial misconduct in closing 

argument were not preserved by contemporaneous objection and were not 

fundamental error. The one objection made to the State’s use of a 

photograph of the victim, which had been taken five months before the 

collision, was not error. The defense objected as “facts not in evidence” to 

the prosecutor’s representation that the photograph was taken five 

months before the accident. During the trial, the photograph had been 

admitted without objection, and the court had announced to the jury at 

the time of its admission that it reflected the victim “as she appeared in 

life.” Even if the exact date of the photograph was not strictly in evidence, 

we conclude that no reversible error occurred.

Appellant did preserve his objection to the court’s prohibition of a lay 

witness in offering her opinion as to whether the victim’s turn into traffic 

was unusual. However, it appears in the record that defense counsel 

rephrased the question and the witness was able to testify what was 

unusual about the victim’s turn. Therefore, no reversible error occurred.

Finally, appellant’s challenge to the court’s failure to give a defense 

instruction on his theory of defense was not preserved and was, in fact, 

waived when the defense withdrew the instruction. We also reject 

appellant’s claim that the jury instruction on causation was incomplete 

and inaccurate.

For the foregoing reasons, we affirm the conviction and sentence.

STEVENSON and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.