AFFIRMED ON APPEAL

The 3rd DCA issued an opinion recently that we find troubling.

You can find the full opinion on the 3rd DCA’s website. Click on "recent opinions and then on the opinions for May 30, 2007. It is Major v. State.

3RD DCA


We reprint a portion of the opinion and invite commentary. We will provide our own view of the matter at a later date. However, to summarize, in a murder trial, the prosecutor prevailed on the ME to change his testimony right before he took the stand. The change was a significant blow to the Defendant’s theory of the case. The 3rd DCA affirmed because the defense attorney did not object.

We view the decision as “result oriented”. The simple fact is that if the 3rd DCA believes the issue deprived the defendant of a fair trial, they should have overlooked the fact that it was a murder case and reversed the case and remanded it for a new trial:

Here is the selected portion of the decision:

Prior to the defendant’s trial, the medical examiner, Dr. Shuman, stated that that he could not conclude whether the bullet fragment removed from Roberts’ brain, which he identified as the fatal bullet, came from a handgun or a shotgun....

However, at trial, Dr. Shuman testified that he was certain that the fatal bullet was fired from a handgun. Dr. Shuman also testified that he changed his opinion the morning of trial when the prosecutor met with him, provided him an additional photograph of the headrest in Roberts’ car, and told him that a witness would testify that a shotgun was fired from the third floor...

The record reflects that, after the prosecutor became aware of Dr. Shuman’s changed opinion, she failed to immediately disclose the inconsistent testimony to the defense. Although Dr. Shuman’s expected testimony was critical evidence in the State’s case, the prosecutor inexplicably failed to mention that Dr. Shuman would now testify that the fatal bullet was fired from a handgun...

In this case, it is undisputed that defense counsel was surprised by and unprepared for Dr. Shuman’s changed opinion. It is also undisputed that, upon learning of Dr. Shuman’s changed opinion during his direct examination defense counsel did not object to the existence of a possible discovery violation or request a Richardson hearing. Instead, defense counsel cross-examined Dr. Shuman and attempted to impeach him using a medical report that apparently reflected his inconsistent testimony...

Where a defendant fails to timely object to a discovery violation or to request a Richardson hearing, the defendant does not preserve the point for appellate review...

Instead, we find that we cannot reach the issue of whether a discovery violation occurred because this was not preserved for appellate review...

However, the defendant may seek post-conviction relief under Florida Rule of Criminal Procedure 3.850 for ineffective assistance of counsel... A better case for ineffective assistance of counsel is difficult to imagine as the changed testimony here crippled the defense’s theory of the case and would have caused a criminal defense attorney with any modicum of effectiveness to object to this new evidence and demand a Richardson hearing. Undoubtedly, the defendant’s proper course of action is to pursue a claim that his attorney was ineffective for not preserving the purported discovery error for appellate review.


Rumpole says, a careful review of former 3rd DCA opinions will yield a little case written by former Chief Judge Schwartz in which, confronted with a clear case of ineffective assistance of counsel on direct appeal, reversed the conviction in which, and we are quoting from memory here, he writes that the court prefers to save time and do now what clearly would be done later. A special bonus to anyone who finds the cite and posts it.

See You in Court, objecting to everything, which apparently the 3rd DCA wants trial lawyers to do, lest we miss an issue for appeal.

Special thanks to our favourite Herald scribe who tipped us off to this decision. Apparently she reads more case law than we do.