DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

STATE OF FLORIDA,

Appellant,

v.

MADCENE SERFRERE,

Appellee.

No. 4D17-1374

[January 9, 2019]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; David Haimes, Judge; L.T. Case No. 

062015CF015451A88810.

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, Assistant 

Public Defender, West Palm Beach, for appellee.

KUNTZ, 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 Brady1 issue. The State argues 

that the evidence at issue was not material, precluding Serfrere from 

establishing prejudice. Because we agree with the State that the evidence 

at issue was neither 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 detective, 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 deliberating, 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 clerk of court 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 the State did not advise him of any 

Brady information. He 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 bar code. But the trial prosecutor admitted

she had not verified 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 response, 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 they 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 lesserincluded offense of possession with intent. After discharging the jury, the 
3

court asked counsel: “Where 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 is 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 been 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 also 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, the court reasoned the allegation that the confidential 

informant 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 cell phone.” The court concluded “[defense counsel] has 

established that he would have done something different had [Detective 

D.J.] been called to come in, the evidence would have come in that he was 

under investigation, because it would 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. 

The court granted Serfrere’s motion for reconsideration and motion for 

new trial based on the purported Brady violation.

Analysis

We review an order granting a new trial for abuse of 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 of 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 allegedly 

occurred in Atlanta, Georgia. Our supreme court has explained that “[i]f 

a state witness is merely under investigation . . . the ability to crossexamine 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 State 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, this 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 defendant 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 questioned 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 be excluded. On the 

other hand, a party may always impeach its witness if the witness gives 

affirmatively harmful testimony.”). Because the State did not intend to call 

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

for Serfrere to 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 convictions and 

sentences.

Reversed and remanded.

TAYLOR and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.