IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT. Case No. 4D Lower Tribunal No LEONARD CUMINOTTO, Appellant,

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1 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT Case No. 4D Lower Tribunal No LEONARD CUMINOTTO, Appellant, v. STATE OF FLORIDA, Appellee. On Appeal from the Circuit Court of the 15th Judicial Circuit, In and For Palm Beach County, Florida APPELLANT S REPLY BRIEF Daniel A. Bushell Florida Bar No Bushell Appellate Law, P.A Glades Road, Suite 110 Boca Raton, Florida Phone: Fax: dan@bushellappellatelaw.com Counsel for Appellant

2 TABLE OF CONTENTS Contents I. CLARIFICATION REGARDING FACTUAL ASSERTIONS... 1 II. ARGUMENT... 1 A. Richardson Requires Reversal Failing to Hold a Richardson Hearing Is Per Se Reversible Error The Trial Court Made No Findings as to Whether the State Violated Its Discovery Obligations A Richardson Hearing Would Have Been Required Before The Trial Court Could Find That No Discovery Violation Occurred It Would Have Been an Abuse of Discretion to Find No Discovery Violation On This Record The Trial Court s Richardson Error Was Preserved... 7 B. The Trial Court Abused Its Discretion in Denying a Continuance Made Necessary By the State s Late Disclosures... 8 C. Defense Counsel s Ineffective Assistance is Clear on the Face of the Record III. CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE ii

3 TABLE OF CITATIONS Cases Brown v. State, 66 So.3d 1046 (Fla. 4th DCA 2011)... 10, 11 Casica v. State, 24 So. 3d 1236 (Fla. 4th DCA 2009)... 7 Conde v. State, 860 So. 2d 930 (Fla. 2003)... 2 D.N. v. State, 855 So. 2d 258 (Fla. 4th DCA 2003) Harrell v. State, 894 So. 2d 935 (Fla. 2005)... 9 Jones v. State, 32 So. 3d 706 (Fla. 4th DCA 2010)... 5, 9 Landry v. State, 931 So. 2d 1063 (Fla. 4th DCA 2006)... 5 Rogers v. State, 782 So. 2d 373 (Fla. 2001)... 7 Scipio v. State, 928 So.2d 1138 (Fla. 2006)... 3, 8 Smith v. State, 7 So. 3d 473 (Fla. 2009)... 8 Smith v. State, 882 So. 2d 1050 (Fla. 4th DCA 2004)... 3 State v. Schopp, 653 So.2d 1016 (Fla.1995)... 3 Thomas v. State, 63 So. 3d 55 (Fla. 4th DCA 2011)... 5, 8 Thompson v. State, 990 So. 2d 482 (Fla. 2008) iii

4 I. CLARIFICATION REGARDING FACTUAL ASSERTIONS Appellant is compelled to respond to two potentially misleading characterizations of the record in the State s Answer Brief. First, the State makes it appear that M.C. did not claim that the alleged offenses included vaginal penetration. Ans. Brf. at 2. Although M.C. s trial testimony was less than clear as to whether penile penetration occurred, see R.6: 482, her deposition testimony was unambiguous that she was claiming that penile penetration had occurred and had caused her excruciating internal pain, R.4: 506. At trial, M.C. also unambiguously stated that she had been digitally penetrated on two occasions, allegedly causing internal pain in her vagina. R.9: 472 & Second, the State s allusion to prior convictions might be misunderstood to imply that Appellant had previously been convicted of engaging in the type of conduct he is accused of here. Ans. Brf. at 3. The record reflects, however, that those convictions, which occurred 20 years earlier, related to theft, not anything remotely related to charged offenses here. See R.11: II. ARGUMENT Several issues in this appeal can be boiled down to a single question: Must the State timely disclose the results of a forensic medical exam when they tend to negate the charges against the defendant and could be used to impeach the State s primary witness? The simple answer dictated by Florida law as well as the federal 1

5 and Florida Constitutions is yes. But the trial court ignored the State s failure to comply with that obligation. And in its Answer Brief, the State asks this Court to do the same. This Court should rejection that request. A. Richardson Requires Reversal 1. Failing to Hold a Richardson Hearing Is Per Se Reversible Error The State concedes that the trial court did not hold a Richardson hearing. Ans. Brf. at 5. Yet, citing Conde v. State, 860 So. 2d 930, 958 (Fla. 2003), the State erroneously contends that this omission should be reviewed for abuse of discretion. Ans. Br. at 6. But Conde is inapposite, because the trial court in that case did hold a Richardson hearing; it was the results of the hearing that were being reviewed. 860 So. 2d at 958. Thus, the abuse of discretion standard in that case applies when reviewing a trial court s findings and remedies based on the evidence presented at the Richardson hearing, not for reviewing whether a hearing was required at all. Id. By contrast, a trial court has no discretion to decline to hold such a hearing when informed of a possible discovery violation. To the contrary, [t]he failure to conduct a Richardson hearing where a discovery violation occurred [is] per se reversible error unless the State shows 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. Smith v. State, 882 So. 2d 1050, 1053 (Fla. 4th DCA 2004) (quoting State v. Schopp, 653 So.2d 1016, 2

6 (Fla.1995))(emphasis added); see also Scipio v. State, 928 So.2d 1138, 1150 (Fla. 2006). The State tacitly concedes that it cannot meet that burden, declining to even attempt to carry it. Thus, because the trial court did not hold a Richardson hearing after being informed of discovery violations, and because the State cannot show that there is no possibility that Appellant was procedurally prejudiced, Appellant s convictions must be reversed. 2. The Trial Court Made No Findings as to Whether the State Violated Its Discovery Obligations The State asks this Court to ignore the trial court s failure to hold a Richardson hearing by attributing to the trial court a finding that no discovery violation occurred, even though the record contains neither an order nor any statement of such a finding. Ans. Brf. at 6. And, again without pointing to any record support, the State asks this Court to assume that the reasoning behind that unstated finding was that there was no showing as [to] when the State became aware of this report, or of the physician s name who performed the examination, or that the Michigan Exam Report had any probative value. Ans. Brf. at 5. But that revisionist reconstruction is belied by the actual record. The State does not cite to anything in the record supporting such a finding because the trial court made no such finding. To the contrary, the trial judge simply denied Appellant s motion to continue the trial despite being told that the State had disclosed the Michigan Exam Report only days earlier, after withholding it for 21 3

7 months without making any findings, much less stating whether a discovery violation had occurred. See R.6: 41. And because the trial court did not make any finding as to whether a discovery violation occurred, it obviously did not state the reasons underlying such a finding. See id. Thus, the State s contention that the need to conduct a Richardson hearing was obviated by a finding that no discovery violation occurred is meritless, and should be rejected. 3. A Richardson Hearing Would Have Been Required Before The Trial Court Could Find That No Discovery Violation Occurred Moreover, even if the trial court could be said to have silently ruled that no discovery violation occurred, such a finding would be subject to reversal because the trial court did not conduct the hearing required to make that determination. The pre-trial judge s limited inquiry was confined to asking a few questions about whether defense counsel was diligent in seeking information about the medical exams, paying virtually no attention to the diligence of the prosecution, which had the obligation to disclose that information. R.6 at Under this Court s precedent, the trial court would have been required to conduct a substantially more thorough inquiry before finding that no discovery violation occurred. In fact, the trial court would have been required to hold a Richardson hearing to properly make such a finding. See Thomas v. State, 63 So. 3d 55, 59 (Fla. 4th DCA 2011) ( A Richardson hearing is required when there is a possible discovery violation in order to flesh out whether there has indeed been a discovery 4

8 violation. ) (quoting Landry v. State, 931 So. 2d 1063, 1065 (Fla. 4th DCA 2006)) (emphasis in original); Jones v. State, 32 So. 3d 706, (Fla. 4th DCA 2010) ( This requirement applies when the court learns of a possible discovery violation, in order to determine whether there has been an actual discovery violation ). The trial court held no such hearing. Indeed, the inadequate showings that the State says support the trial court s unstated finding actually illustrate the inadequacy of the trial court s inquiry into the State s discovery conduct. For example, the State says that there was no showing as [to] when the State became aware of this report, or of the physician s name who performed the examination. Of course, only the prosecutors could possibly have known when they became aware of the report and the physician s name, so to the extent that knowledge is relevant, the failure to elicit it would reflect the inadequacy of the trial court s inquiry, not a ground for finding no discovery violation occurred. See Landry, 931 So. 2d at 1065 (reversing finding that no discovery violation occurred where the trial court failed to inquire when the prosecution became aware of a witness s change in testimony). Thus, because neither a Richardson hearing nor the substantive equivalent was held, even if the trial court had found that no discovery violation occurred (and it did not), that finding would have been subject to reversal. 4. It Would Have Been an Abuse of Discretion to Find No Discovery Violation On This Record 5

9 Despite the trial court s limited inquiry, it was informed that the State knew about the forensic exam and did not disclose information about it. The prosecution admitted that the fact that the examination had been performed was known to it at some point prior to depositions that were taken five months before the trial. See R.6: That admission alone was sufficient to show that the prosecution violated its disclosure obligations when it became aware of the exam but failed to disclose the Michigan Exam Report or the names of the examiners to the defense. See Fla. R. Crim. P (j) (imposing a continuing duty on the State to promptly disclose witnesses and reports when discovered). Moreover, the prosecutors had the obligation to disclose this information long before that, even if they could credibly contend that they were not immediately told about the results of forensic exam conducted by their partner agency while Appellant was held in Florida custody. Florida prosecutors are deemed, as a matter of law, to have constructive knowledge and possession of evidence held by their law enforcement partners. See Rogers v. State, 782 So. 2d 373, 381 (Fla. 2001). Thus, the State s contention that the trial court was not told when the prosecution became aware of the Michigan exam is both wrong and irrelevant. Similarly meritless is the State s assertion that the trial court could ignore the State s discovery violations because it was not shown that the report had any probative value. Ans. Brf. at 6. This Court has made clear that the probative value 6

10 of undisclosed information may not even be considered in this context, as [i]t is immaterial whether the discovery violation would have made a difference to the fact finder. Casica v. State, 24 So. 3d 1236, 1240 (Fla. 4th DCA 2009). 1 Moreover, as noted in Appellant s Initial Brief, defense counsel explained at length to the trial court how the Michigan Exam Report, which evidenced that the alleged victim had never been vaginally penetrated, was exculpatory and could have been used to impeach the testimony of the State s star witness. 5. The Trial Court s Richardson Error Was Preserved In a footnote, the State says it would question if the Richardson issue has even been preserved for appeal. Ans. Brf. at 6. But as the State acknowledges, a trial court s error in failing to hold a Richardson hearing is preserved for appellate review so long as the fact that a discovery request has not been met was brought to the trial court s attention. Smith v. State, 7 So. 3d 473, 506 (Fla. 2009). And the State does not dispute that the State s discovery violations were brought to the trial court s attention here. Indeed, although a Richardson hearing was not specifically requested, Appellant s motion for a continuance and motion for a new trial sought 1 At most, the probative value of the Michigan Exam Report might have been an issue the State could have raised if a Richardson hearing had been held to show that the defense was not procedurally prejudiced by the failure to disclose it. But it is the State s burden to prove lack of procedural prejudice, so any failure of proof as to the probative value of the report would weighs against the State, not in favor of ignoring its discovery violation. See Thomas, 63 So. 3d at 60. In any event, the Florida Supreme Court has made clear that such reports must be disclosed. See State v. Scipio, 928 So. 2d at

11 substantially the same relief: the opportunity to remedy the prejudice to Appellant caused by the State s late disclosures (and non-disclosures) of material it had a duty to turn over to the defense. Under these circumstances, the State has no basis for questioning whether the Richardson issue was preserved, as this Court has made clear that a Richardson hearing is required even if the defendant does not request a Richardson hearing. 2 Jones v. State, 32 So. 3d 706, (Fla. 4th DCA 2010). Thus, because the trial court was made aware of the State s discovery violations, but failed to hold a Richardson hearing, this Court should reverse. B. The Trial Court Abused Its Discretion in Denying a Continuance Made Necessary By the State s Late Disclosures As Appellant pointed out in his Initial Brief, this Court s precedent makes clear that it is an abuse of discretion to deny a continuance when a defendant s trial preparation has been hindered by the State s belated disclosure of evidence. See Ini. Brf. at The State does not even address this precedent, simply stating that it must be concluded that the trial court found that there was no discovery violation. Ans. Brf. at 9. But as noted above, the trial court neither made such a finding nor conducted the Richardson hearing that would have been required to do so. And even putting aside whether the State violated discovery rules, the State does not dispute that the Michigan Exam Report was disclosed only days before 2 Harrell v. State, 894 So. 2d 935, (Fla. 2005), the sole case cited in support of this argument, does not even address preservation of Richardson errors. 8

12 trial, and that the late disclosure rendered defense counsel unable to make use of this exculpatory evidence at trial. In other words, the State effectively concedes that Appellant suffered prejudice as a result of the trial court requiring the trial to proceed. Thus, even if the State s failure to disclose the report and other information about the forensic exam could somehow be construed as something other than a discovery violation (and it cannot), the trial court would have abused its discretion by failing to grant a continuance based on the prejudice Appellant would (and did) otherwise suffer as a result of the late disclosure. The State erroneously relies on Brown v. State, 66 So.3d 1046, 1048 (Fla. 4th DCA 2011), to contend that the trial court s denial of a continuance was proper because the case was not a complex case, the assistant public defender who represented him at trial had been appointed 60 days earlier and the record does not show that he was inexperienced. Ans. Brf. at 7-8. But Brown actually undermines the trial court s decision. There this Court found it was an abuse of discretion to deny a continuance even though the case had been pending for a long time, was not complex, and unlike here, there had been no discovery problems, because defense counsel s unpreparedness made him unlikely to provide adequate representation, making it likely that the defendant would suffer prejudice if the trial proceeded. Brown, 66 So. 3d at Similarly, in D.N. v. State, 855 So. 2d 258, (Fla. 4th DCA 2003), on which Brown relied, this Court found that the trial court abused 9

13 its discretion in denying a continuance when a replacement assistant public defender was assigned to the defendant, but did not have adequate time to procure the testimony of all relevant and necessary witnesses. Here not only did the same unpreparedness, inadequate representation, prejudice, and inability to procure testimony counsel in favor of an extension, but the late disclosure of the Michigan Exam Report made it even more imperative. Moreover, in Brown, this Court also faulted the trial court for failing to review the criteria before denying the motion simply to move the case to trial. Brown, 66 So. 3d at The trial court here similarly failed to analyze all seven factors before denying Appellant s motion. Under a complete analysis, the second (likelihood of prejudice), third (defendant s role in shortening preparation time), fifth (availability of discovery), and sixth (adequacy of counsel actually provided) criteria identified in Brown and D.N. all supported granting the motion. Yet the trial court did not even discuss these factors. Thus, the trial court not only failed to properly inquire about and consider the State s late disclosure (and nondisclosure) of exculpatory and impeachment information, but also failed to take into account all seven of the criteria required by this Court s precedent before denying Appellant s motion for a continuance. As such, the trial court abused its discretion. For this additional reason, Appellant s convictions should be reversed. C. Defense Counsel s Ineffective Assistance is Clear on the Face of the Record 10

14 As explained in Appellant s Initial Brief, his trial counsel provided ineffective assistance through the conjunction of multiple deficiencies in performance that are clear on the face of the record. Among other things, Appellant s counsel arrived for his trial with Appellant facing the possibility of life imprisonment completely unprepared (having not spent even a single day during the week before trial preparing), and despite having waived Appellant s right to a speedy trial (against Appellant s wishes) for the supposed purpose of participating in discovery, having failed to take steps to obtain records of or other information about the alleged victim s medical exams in time to make use of that information at trial, or to turn up other evidence that could have been used in Appellant s defense. The State responds that either (a) the ineffective representation is not apparent on the face of the record or (b) Appellant did not suffer prejudice as a result. Ans. Brf. at But it offers only red herring arguments in support of each assertion. The State completely misses the point in asserting that the speedy trial period never expired and that the State may have been able to go to trial within that period. Appellant agrees that the period did not expire because it was wrongfully waived. And that matters because whether or not the State would have been prepared to timely proceed to trial, it is undisputed that the State did not disclose the existence of, or any information about, the Michigan exam, the 11

15 examiners, or the Michigan Exam Report within the speedy trial period. It is those non-disclosures that would have resulted in dismissal of the charges against Appellant. See Ini. Brf. at 43. The State also contends that Appellant might have been disadvantaged if trial proceeded during the speedy trial period and his counsel went to trial unprepared. Ans. Brf. at 11. But if, as the State says, Appellant would have been prejudiced if his counsel went to trial unprepared during the speedy trial period, then he was certainly disadvantaged when his counsel went to trial unprepared fourteen months later, despite having waived Appellant s speedy trial rights. The State asserts a second red herring argument in stating that trial counsel s skills and strategy were effective to a point because Appellant was acquitted of three charges. Appellant, however, is not challenging trial counsel s trial skills or strategy, but rather counsel s admitted failure to prepare for trial and to obtain evidence he admitted was crucial for Appellant s defense. And if anything, the fact that the jury acquitted Appellant of three of the charges shows that the jury had doubts about the veracity of M.C. s testimony. If it had seen the medical reports casting doubt on her claim to have suffered multiple episodes of painful penetration, the jury would have had a substantial additional basis for reasonably doubting that testimony. Moreover, the record includes multiple admissions by defense counsel that he was not prepared for trial, did not investigate to obtain the 12

16 Florida exam records and information about the Michigan forensic exam in time to make use of this evidence, which he deemed critical to Appellant s defense, and that he did not provide the representation to which Appellant was entitled under the Sixth Amendment. See Ini. Brf. at & record citations discussed there. Thus, counsel s ineffectiveness is clear on the face of the record. Finally, the State s prejudice argument is premised on a misapprehension of the proper inquiry. The prejudice standard requires a demonstration that the result of the proceeding has been rendered unreliable, or undermines confidence in the outcome of a proceeding, not that the ineffective assistance definitely (or even probably) affected the outcome. Thompson v. State, 990 So. 2d 482, 490 (Fla. 2008). Appellant has shown multiple reasons why trial counsel s deficient performance renders the outcome unreliable, including the fact that the State s discovery violation would have required dismissal of the charges against Appellant if defense counsel had not waived speedy trial, and that Appellant was ultimately represented by counsel who had not prepared for trial and did not secure and show the jury exculpatory evidence that counsel admitted was crucial for Appellant s defense. As such, Appellant has amply demonstrated ineffective assistance that is clear on the face of the record, and that he was prejudiced by it. III. CONCLUSION For all of the foregoing reasons, in addition to the reasons set forth in 13

17 Appellant s Initial Brief, this Court should reverse Appellant s convictions and remand for a new trial or dismissal. Dated: January 6, 2012 Respectfully submitted, Daniel A. Bushell Florida Bar No BUSHELL APPELLATE LAW, P.A Glades Road, Suite 110 Boca Raton, Florida Phone: Fax: dan@bushellappellatelaw.com Counsel for Appellant 14

18 CERTIFICATE OF SERVICE I hereby certify that on the 9th day of January, 2012, a true and correct copy of the foregoing was ed to the Court. I also certify that a true and correct copy of the foregoing was served via U.S. Mail to the following: Daniel P. Hyndman, Esq. Criminal Appeals Division Office of the Attorney General 1515 N. Flagler Dr., Suite 900 West Palm Beach, FL Daniel A. Bushell CERTIFICATE OF COMPLIANCE I hereby certify that this brief satisfies the font requirements of Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. Daniel A. Bushell 15