### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

STATE OF FLORIDA

, Appellant,

v.

MADCENE SERFRERE

, Appellee.

No. 4D 17

- 1374

[ January 9, 2019 ]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County ; David Haimes , Judge; L.T. Case No.

0620 15 CF 0 15451 A88810

.

Ashley Brooke Moody , Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellant.

Carey Haughwout, Public Defender, and Jessica A. De Vera, Assistan t Public Defender, West Palm Beach, for appellee.

K UNTZ , J

.

A jury found Defendant Madcene Serfrere guilty of trafficking in cocaine and possession of cocaine. After sentencing, the court granted Serfrere’s motion for new trial based on an alleged Brad y 1 issue. The State argues that the evidence at issue was not material

, preclud ing Serfrere from establishing prejudice. Because w e agree with the State that the evidence

at issue was n either material nor prejudicial to Serfrere

, we reverse the court’s order granting a new trial and remand with instructions to reinstate the jury’s verdict.

Background

The issue in this appeal relates to a d etective , Detective D.J., under investigation while this case was pending. Detective D.J. and his partner,

Detective J.R., worked together during the investigation of Serfrere. The

1 Brady v. Maryland , 373 U.S. 83 (1963).2 State listed Detective D.J. on a discovery witness list

, but the State did not identify him as a potential witness during voir dire

.

While the jury was del iberating, Serfrere’s counsel brought to the

court’s attention that the State had not called Detective D.J. during trial.

Counsel informed the court that he contacted the c lerk of c ourt during a

recess and learned that Detective D.J. was the subject of a Brady notice

and “ [was] under investigation by the State Attorney’s Office and the SPU

Unit for Grand Theft.”

Serfrere’s counsel acknowledged that Detective D.J. was on the State’s discovery list, but told the court that t he State did not advise him of an y Brady inf ormation

. H e also told the court that he found no information

on the docket related to the Brady notice

, and he did not receive the Brady

notice.

The State responded that the Brady notice was filed by the prior
prosecutor and scanned with a b ar code. But the trial prosecutor a dmitted

s he had not ver if ied that the notice was docketed

.

Serfrere ’s counsel maintained that Detective D.J. and his partner

, Detective J.R., were the only people who could confirm whether a purported confidential informant was documented with the police department

, an issue relevant to Serfrere’s objective entrapment defense.

He also brought attention to Serfrere’s missing cell phone , which was in

Serfrere’s possession at the time of the arrest but was lost and never logged

as evidence.

After discussions with counsel about the confidential informant, the

court stated : “I mean you are moving for a mistrial, [and] the jury is back there deliberating.” In respo nse, Serfrere’s counsel stated: “Well, depending on what the jury does, Judge, then

– I am being candid with the court, depending on what the jury does I might ask for a mistrial.”

The next day , Serfrere’s counsel informed the court that he “looked

into” Detective D.J. and found “some theft allegations about him stealing stuff from Defendants, . . . and it goes right to this case of where my client

cell phone is missing.” But he also stated : “Judge, I don’t think this Court can grant me a mistrial. If t hey come back guilty I am going to ask for a

mistrial.”

The jury returned from deliberations and found Serfrere guilty of possessing a trafficking amount of cocaine and guilty of the lesser

included offense of possession with intent

. After discharging th e jury, the3 court asked counsel : “ W here do we

-- well, it wouldn’t be for a mistrial we already have a verdict. You didn’t want to do a mistrial during trial. At this point we have a verdict so the question i s now where do we go from

here?”

In response, Serfrere’s counsel moved for a new trial and argued that, had he known about the investigation into Detective D.J. , his defense strategy would have changed: he would have cross

- examined Detective

J.R. about Detective D.J. , which would have bee n relevant to Detective

J.R.’s credibility. Defense counsel asserted that knowing about the investigation into Detective D.J. “would have changed our defense in reference to how I would have attacked that particular witness which was his partner.”

He als o argued that Serfrere’s missing cell phone never went into evidence, which may have related to whether Detective D.J. , who was under investigation for theft, took the phone.

After argument, the court denied the motion for new trial . But Serfrere

moved for reconsideration , focusing on the missing cell phone. He argued

he “ would have subpoenaed [ Detective D.J. ] to question him on the whereabouts of the missing cell phone. The cell phone is key evidence in this case, because it would have proved who the Defendant was texting on the date of the incident; the police officer or the confidential informant. ”

At the hearing, t he court reasoned the allegation that the c onfidential

i nformant was working with Detective D.J. “would have been established if they had the cell phone records or had the cell phone to show the text

from the cel l phone.” The court concluded “ [defense counsel] has established that he would have done something different had [ Detective D.J.] been call ed to come in, the evidence would have come in that he was under investigation, because it wo uld have been for impeachment.” The

State argued that the investigation would not be admissible to impeach

Detective D.J. because it was not a conviction, and the court clarified that it would be relevant to impeachment for bias.

T he court granted Serfrere’s motion for reconsideration and motion for new trial based on the purported Brady violation.

Analysis

We review a n order granting a new trial for abuse o f discretion. State v. Dunnaway , 778 So. 2d 378, 378 (Fla. 4th DCA 2001) (citation omitted)

.4 “In order to demonstrate a Brady violation, the defendant has the burden to show (1) that favorable evidence, either exculpatory or impeaching, (2) was willfully or inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced.” Hayward v. State , 183 So. 3d 286, 311 ( Fla. 2015) (citations omitted).

The focus o f our inquiry here, and the only prong in dispute, is whether

the evidence was material. Materiality requires the defendant to establish “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Id. ( quoting Youngblood v. West Virginia , 547 U.S. 867, 870 (2006)). If the evidence was not material, Serfrere will be unable to establish prejudice.

We find that the evidence was not material and that, as a result, Serfrere cannot establish prejudice.

Detective D.J. was being investigated for an incident that alleged ly occurred in Atlanta, Georgia

. Our supreme court has explained that “[i] f a state witness is merely under investigation

. . . the ability to cross

examine on such investigation is not absolute. Instead, any criminal investigation must not be too remote in time and must be related to the

case at hand to be relevant.” Breedlove v. State , 580 So. 2d 605 , 608 ( Fla. 1991) ; see also Reed v. State , 875 So. 2d 415, 431 ( Fla. 2004) (applying

Breedlove prongs) ; Ferguson v. Sec’y for Dep’t of Corr. , 580 F.3d 1183,

1206

– 07 (11th Cir. 2009) (discussing materiality of evidence that detectives were under investigation). There is nothing in the record connecting the investigation into Detective D.J. to Serfrere’s missing cell phone. 2 So Breedlove precluded Serfrere from impeaching the detective with evidence of the pending investigation.

Serfrere correctly points out that by creating a Brady notice of the investigation into Detective D.J.

, the Sta te acknowledged that the evidence could have been material and prejudicial under Brady

. But , since voir dire, Serfrere was on notice that the State did not intend to call Detective

D.J. as a witness. As such

, t his is not a case of an undisclosed material

witness

. Instead, it involves a witness the State disclosed and later stated would not be called to testify

.

Beyond that

, generally, a d efendant cannot call a witness mainly to impeach him. See Morton v. State , 689 So. 2d 259, 264 ( Fla. 1997),

receded from on other grounds

, Rodriguez v. State , 753 So. 2d 29 ( Fla. 2000) (“Generally, however, if a party knowingly calls a witness for the

2 Serfrere question ed Detective J.R. about the location of the cell phone and the text messages sent from the phone

.5 primary purpose of introducing a prior statement which otherwise would be inadmissible, impeachment should ordinarily b e excluded. On the other hand, a party may always impeach its witness if the witness gives affirmatively harmful testimony.”) . B ecause the State did not intend to call

Detective D.J. as a witness , there could have never been an opportunity

for Serfrere t o impeach him

.

Serfrere failed to establish he was prejudiced by the State’s inadvertent failure to provide a proper Brady notice. As a result, the court erred in granting the motion for new trial.

Conclusion

We reverse the court’s order granting Serfrere’s motion for new trial and

remand with instructions to reinstate Serfrere’s conviction s and

sentence s

.

Reversed and remand ed

.

T

AYLOR and C ONNER , JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.