Opinion
No. 3D99-2216.
December 27, 2000. Rehearing Denied March 12, 2001.
Appeal from the Circuit Court, Miami-Dade County, Manuel A. Crespo, J.
Bennett H. Brummer. Public Defender, and Louis K. Nicholas, II, Special Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General, and Jill K. Traina, Assistant Attorney General, for appellee.
Before COPE and SHEVIN, JJ., and NESBITT, Senior Judge.
Juan Jose Hernandez appeals his conviction for carjacking with a deadly weapon and armed robbery with a deadly weapon. We affirm.
We find no abuse of discretion in the trial court's denial of Hernandez's motion for mistrial grounded on the state's discovery violation. "When the State discloses evidence to the defendant after a trial has started, the focus of inquiry is on procedural prejudice." Cohen v. State, 581 So.2d 926, 928 (Fla. 3d DCA 1991) (citing Thompson v. State, 565 So.2d 1311 (Fla. 1990)). In this case, upon learning of the possible discovery violation the court conducted the appropriate inquiry, Sims v. State, 681 So.2d 1112, 1114 (Fla. 1996), cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997), and found that the violation was inadvertent. Although the violation may have been substantial, the court found that the defense was on notice of the existence of the objectionable items and through more diligent inquiry, including deposition testimony of the officer, could have learned that the items were discovered on Hernandez's person. The court also gave a curative instruction.
We are not unmindful that Hernandez's defense at trial was lack of identity. However, this is not a case where the surprise to the defense rendered it unable to prepare adequately for trial. Reese v. State, 694 So.2d 678 (Fla. 1997). See Grant v. State, 738 So.2d 1020 (Fla. 4th DCA 1999) (citing Norton v. State, 709 So.2d 87, 96 (Fla. 1997)). In addition, the trial court gave a curative instruction removing the taint of the testimony and permitted the defense to continue arguing its theory of the case. We cannot conclude that the court's ruling was an abuse of discretion.
Affirmed.
NESBITT, Senior Judge, concurs.
COPE, J., specially concurs.
I concur in all except the discussion of the curative instruction. Given that in the deposition of the victim the defense learned that the police officer had found the victim's jewelry in the defendant's pocket, the defense was already on notice of this fact. Consequently the defendant was not entitled to a curative instruction at all.
If required to reach the question of whether the curative instruction was sufficient, I would have to conclude that it was not. The curative instruction asked the jury, in substance, to disregard the police officer's testimony about where he found the victim's jewelry. While jurors usually can be expected to obey a curative instruction, I do not think they could be expected to forget the officer's testimony that the jewelry was in the defendant's pocket.
Under the circumstances, however, defendant was not entitled to a curative instruction at all, and the curative instruction did not harm the defendant. I concur that affirmance is in order here.