Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT CHACE ANDREW NEER, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D21-2680 November 30, 2022 Appeal from the County Court for Charlotte County; Peter A. Bell, Judge. Jacqulyn Mack-Majka of the Mack Law Firm Chartered, Englewood, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Lindsay D. Turner, Assistant Attorney General, Tampa; and Taylor A. Schell, Assistant Attorney General, Tampa (substituted as counsel of record), for Appellee. SILBERMAN, Judge. Chace Andrew Neer appeals his conviction and sentence for the misdemeanor of driving under the influence (DUI) with a breath alcohol level of .15 or above. In his first issue, Neer contends that the county court committed reversible error in excluding two defense witnesses for a discovery violation and that he had a right to contest the accuracy and reliability of the machine used to collect his breath sample. Because the county court failed to consider less extreme sanctions than the exclusion of defense witnesses and the State has failed to establish harmless error, we reverse and remand for a new trial. Thus, we need not reach issues two and three, but we note without further comment that we reject Neer's arguments on those issues. Background On the first day of trial before voir dire, the county court asked the parties to announce their expected witnesses. The defense announced Inspector Haughey of the Florida Department of Law Enforcement (FDLE) and Sergeant Kern as witnesses. The State made a motion in limine to exclude these defense witnesses, along with a records custodian witness, arguing that Neer had never provided a witness list as part of reciprocal discovery. 2 The county court conducted a Richardson1 hearing. The prosecutor asserted that he had learned about witness Haughey less than thirty-six hours before trial and that he did not learn about witness Kern until the morning of trial. The prosecutor argued that the State would be prejudiced at trial because he did not have adequate notice or adequate time to prepare to cross- examine these witnesses. Defense counsel told the court that the State could not be surprised by the witnesses because the State discloses the FDLE's website for the alcohol testing program to the defense in every DUI case in the county. Defense counsel offered to "show the Court how to get to the documents that deal with the breath test machine in this case" that name Haughey and Kern. Neer contended that "those documents that are on the FDLE website are supposed to fulfill the obligations of the various agencies and comply with the alcohol testing program" which is part of Florida's statutory scheme for implied consent. Neer also argued that he had no duty to disclose because there was no court order requiring disclosure. 1 Richardson v. State, 246 So. 2d 771 (Fla. 1971). 3 In responding, the State argued: [I]f defense counsel's interpretation of the rules were allowed to go to their logical conclusion, that would mean that the State would potentially have to interview every employee of FDLE and everyone employed by the State in preparation for every single trial because the State had notice, technically that Mr. Houghey [sic] was employed with FDLE and that he worked for FDLE. The State never received notice that Mr. Houghey [sic], Sergeant Kern or Custodian Towsey would be called into trial today. The county court found that the defense committed a discovery violation under the Florida Rules of Criminal Procedure as to the obligation to provide a witness list. The court stated that the defense had not provided an explanation for the failure to comply with the disclosure obligation. Concluding that it was a willful and substantial violation, the county court stated that it was "constrained" to grant the State's motion in limine "at this juncture to preclude these witnesses from this trial at this time." As to the records custodian, witness Towsey, who was permitted to testify, the county court determined that it could not find prejudice to the State by the nondisclosure because there was an "alternate form of [d]isclosure." The county court did not make an express finding of prejudice to the State as to witnesses Haughey and Kern. Further, 4 the court did not address less extreme sanctions than exclusion of these two defense witnesses. At trial, the State introduced into evidence the most recent agency inspection report completed before Neer's breath sample was taken with an Intoxilyzer 8000 identified as instrument number 80- 001363 (Intoxilyzer 1363). The monthly inspection report was prepared on August 15, 2020, by the Charlotte County Sheriff's Office, and Neer's breath sample was taken on August 19, 2020. The State's witnesses included Corporal Dempster, who performed the monthly inspection on August 15, and Deputy Waldrop, who administered the breath test to Neer on August 19. The breath test results for Neer's two samples were .19 and .181 grams of alcohol over 210 liters of breath. Corporal Dempster acknowledged that the flow sensor affects the machine's ability to recognize a valid breath sample. During a later defense proffer of Corporal Dempster's testimony, defense counsel had all the exhibits marked that he would have entered into evidence through witnesses Haughey and Kern, including the FDLE annual inspection report. The defense sought to call into question the reliability of Intoxilyzer 1363 by 5 showing it had been out of service for months due to problems with the flow sensor. During the proffer, Corporal Dempster acknowledged that nothing in the FDLE inspection report stated that "what was wrong was fixed." Defense counsel asserted that Kern would have an answer to this question but that Kern had been struck as a witness. Defense counsel also stated that the FDLE inspection would have been entered into evidence through FDLE Inspector Haughey, had he been allowed to testify, because he created the document. Corporal Dempster could not explain a discrepancy in tests performed on October 29, 2020, for Intoxilyzer 1363. The jury found Neer guilty of DUI and that he had a breath alcohol level of .15 or higher. The county court adjudicated Neer guilty and imposed twelve months' probation, a fine, and a twelve- month driver's license suspension. This timely appeal followed. ANALYSIS Neer contends on appeal that he had the right to question the people who prepared the reports surrounding the inspection and maintenance of Intoxilyzer 1363 which was used to take his breath 6 sample. He argues that the exclusion of the two defense witnesses was error and that the error was not harmless. We agree. As to whether the defense committed a discovery violation, the notice of appearance that Neer's counsel filed on August 25, 2020, included a notice of discovery demanding "all [d]iscovery permitted or required under [Florida Rule of Criminal Procedure] 3.220." Because Neer elected to participate in discovery by filing the notice, it triggered reciprocal discovery under rule 3.220(a) and (d)(1). Neer was required to provide a written witness list to the prosecutor and had a continuing duty to disclose. See Fla. R. Crim. P. 3.220(d)(1)(A) and (j). Neer maintains that he did not need to disclose the witnesses because the State knew about the witnesses based on a document the State provided that contained a link to an FDLE website, which in turn contained documents with the names of the two excluded witnesses. Neer failed to show that the State could reasonably be expected to know of potential trial witnesses who created or were named in documents that could be found somewhere on the FDLE website. The county court properly determined that the defense committed a discovery violation by failing to list the two witnesses. 7 See Fla. R. Crim. P. 3.220(n) (providing for sanctions for "fail[ure] to comply with an applicable discovery rule"). We recognize that a trial court has "wide discretion in handling discovery violations and imposing appropriate sanctions." State v. Sullivan, 173 So. 3d 1133, 1135 (Fla. 2d DCA 2015) (citing Austin v. State, 461 So. 2d 1380, 1381-82 (Fla. 1st DCA 1984)). However, when a trial court prohibits a party from calling a witness, the "court errs when it imposes this most severe sanction without considering whether the potential prejudice to the nonoffending party could be overcome with a less severe, or more reasonable, sanction." Id. at 1135-36 (citing Austin, 461 So. 2d at 1382). As in the present case, when the defense commits a discovery violation, "special importance attaches to the trial court's inquiry into alternative sanctions because exclusion of exculpatory evidence implicates the defendant's constitutional right to defend himself or herself." Tolbert v. State, 154 So. 3d 1141, 1144 (Fla. 2d DCA 2014) (quoting McDuffie v. State, 970 So. 2d 312, 322 (Fla. 2007)); see also Dawson v. State, 20 So. 3d 1016, 1020 (Fla. 4th DCA 2009) (same). The trial court must "strictly adhere to the procedure of first considering less severe sanctions" because the sanction of 8 excluding witnesses "implicates the right to a fair trial and should be utilized only under the most compelling circumstances." State v. Rolack, 104 So. 3d 1286, 1289 (Fla. 5th DCA 2013). The exclusion of a witness's testimony for violation of a discovery rule "should be a last resort and reserved for extreme or aggravated circumstances, particularly when the excluded testimony relates to critical issues or facts." State v. Davis, 857 So. 2d 349, 350 (Fla. 2d DCA 2003) (quoting State v. Schwartz, 605 So. 2d 1000, 1001 (Fla. 2d DCA 1992)). When the excluded witness is critical to prove the defense, "[a]dherence to this standard is particularly important." Id. Here, the county court did not consider allowing the State to talk to Haughey and Kern before the trial began, allowing a short continuance to conduct depositions, or any other alternative to exclusion of the witnesses. We conclude that the county court erred when it failed to conduct a sufficient Richardson inquiry and excluded two defense witnesses "without considering less extreme alternatives." McDuffie, 970 So. 2d at 322. In this situation, a harmless error analysis is proper. See id. (citing Scipio v. State, 928 So. 2d 1138, 1146 (Fla. 2006)). The State has the burden to 9 demonstrate that "there is 'no reasonable possibility that the error contributed to' [the defendant's] conviction." Id. at 328 (quoting State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986)). Relying on the defense's proffer of Corporal Dempster's testimony, the State argues that it appears defense counsel could have presented "substantially all of the testimony that she sought to present through her excluded witnesses." The State suggests that it is unclear why defense counsel did not accomplish this on cross- examination of Corporal Dempster or on recall by the defense. During Corporal Dempster's trial testimony and his proffered testimony, defense counsel elicited information as to differences between FDLE's annual intoxilyzer inspection and the monthly inspection conducted by the sheriff's office. The proffer showed that Corporal Dempster could not testify that he knew whether the flow sensor for Intoxilyzer 1363 had been repaired. He acknowledged that nothing in the FDLE annual inspection report stated that "what was wrong with it was fixed." He assumed it was fixed because Intoxilyzer 1363 was put back into service. The proffer further showed that Haughey would be needed to introduce into evidence the FDLE annual inspection report that he prepared and 10 that Kern would be the witness to question regarding the flow sensor repair. The State introduced the August 15, 2020, agency inspection report into evidence because it was "the most recent required maintenance" of Intoxilyzer 1363 before Neer's breath test on August 19, 2020. § 316.1934(5)(e), Fla. Stat. (2020); see also Dep't of Highway Safety & Motor Vehicles v. Falcone, 983 So. 2d 755, 757 (Fla. 2d DCA 2008) (stating that the requirements of section 316.1934(5) had been met "by providing documentation establishing the date of performance of the most recent required maintenance on the intoxilyzer"). Thus, it was up to Neer to introduce the FDLE annual inspection report if the defense sought to use the report to rebut the State's case. Moreover, during the proffer Corporal Dempster asserted that a diagnostic check would indicate if the flow sensor was not working on Intoxilyzer 1363. Defense counsel presented him with two documents, "the inspection report" and "inspection data," for Intoxilyzer 1363 from tests performed on October 29, 2020, a little over two months after Neer gave his breath sample. Corporal Dempster could not explain a discrepancy where on the top right of 11 each document "in the compliance box" it said that "the machine complies"; however, the first document had "no" for the diagnostic check boxes. Corporal Dempster acknowledged that it said "yes" the machine was in compliance but also "no" next to the diagnostic check for the "post inspection," which means "it's not okay." When asked how something like this happens, Corporal Dempster replied, "I do not know the answer." Neer's defense was that Intoxilyzer 1363 was not operating properly; thus, the reading on his breath test was inaccurate. While other evidence presented may have allowed the jury to conclude that Neer's normal faculties were impaired, only the breath test results supported that his breath alcohol level was .15 or higher. The State has failed to show that there is no reasonable possibility that the exclusion of the two witnesses contributed to Neer's conviction. Because the State failed to establish harmless error, we must reverse Neer's conviction and sentence and remand for a new trial. See Dawson, 20 So. 3d at 1018, 1022 (determining that the exclusion of a defense witness was not harmless and reversing murder conviction and remanding for a new trial). Reversed and remanded for new trial. 12 VILLANTI and LaROSE, JJ., Concur. Opinion subject to revision prior to official publication. 13