Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-381 _____________________________ DARREN BING, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Alachua County. Mark W. Moseley, Judge. July 6, 2021 PER CURIAM. This is a direct appeal from Appellant’s convictions and sentences for first-degree murder, conspiracy to commit first- degree murder, and tampering with physical evidence. We affirm in all respects and write only to address Appellant’s claim that the trial court abused its discretion by denying his motion to compel the production of grand jury transcripts. I. Appellant was indicted for first degree-murder (count I), conspiracy to commit first-degree murder (count II), possession of a firearm by a convicted felon (count III), retaliating against a witness, victim, or informant (count IV), and tampering with physical evidence (count V). Appellant was charged with conspiring with a codefendant to kill the victim, who was a key witness against the codefendant in a drug trafficking case. Appellant filed a motion to compel the production of grand jury transcripts in his case as well as the case of his codefendant. Appellant claimed that “[t]here appears to be inconsistent testimony given by witnesses in [Appellant]’s case, as revealed in pre-trial depositions taken, when compared with pretrial sworn statements and investigative reports, with the specific allegations made in the separate indictment against [Appellant’s codefendant] involving the very same homicide.” The motion then proceeded to enumerate twelve categories of alleged inconsistencies. The State filed a response in opposition to Appellant’s motion to compel. At the hearing on the motion, Appellant argued that the inconsistencies identified in his motion raised the issue of whether the grand jury was properly conducted and whether the indictment was based on false testimony, which would invalidate further proceedings under section 905.27, Florida Statutes. The State responded that Appellant could not inspect the grand jury testimony based upon alleged inconsistencies in witness testimony in order to conduct a fishing expedition in an effort to attack the indictment. Importantly, in response to an inquiry from the court, defense counsel confirmed that Appellant was not accusing the State of knowingly presenting perjured testimony to the grand jury. After conducting an in-camera review of the chief detective’s grand jury testimony, the trial court denied Appellant’s motion to compel. At trial, defense counsel was able to use the inconsistencies identified in Appellant’s motion to compel to impeach the testimony of various state witnesses. At the conclusion of the trial, the jury returned a verdict finding Appellant guilty as charged as to counts I, II, and V, and not guilty as to count IV. The State dropped count III. Appellant was then sentenced to life in prison without the possibility of parole. This appeal followed. 2 II. Under section 905.27, “the disclosure of grand jury testimony is not permitted except under three limited circumstances: (1) to determine whether the grand jury testimony is consistent with the testimony given by the witness before the court; (2) to determine whether the witness is guilty of perjury; or (3) in furtherance of justice.” Gosciminski v. State, 132 So. 3d 678, 707 (Fla. 2013). “In applying this provision, . . . ‘[t]here is no pretrial right to inspect grand jury testimony as an aid in preparing one’s defense and holding an in camera inspection of such testimony is a matter within the trial court's discretion.’” Id. (quoting Jent v. State, 408 So. 2d 1024, 1027 (Fla. 1981)). “In order to obtain access to such testimony, ‘a proper predicate must be laid. Mere surmise or speculation regarding possible inconsistencies in testimony is not a proper predicate.” Id. (quoting Jent, 408 So. 2d at 1027). In this case, Appellant claims that the trial court abused its discretion by denying his motion to compel the production of grand jury transcripts. Appellant’s motion alleged numerous inconsistencies among the State’s witnesses as grounds for the motion. The State correctly responds that inconsistencies in various statements of state witnesses is insufficient to require disclosure of the witnesses’ grand jury testimony where the defense is able during cross-examination to direct the jury’s attention to any purported inconsistencies between the witnesses’ testimony. See Gosciminski, 132 So. 3d at 708; Brookings v. State, 495 So. 2d 135, 138 (Fla. 1986); Jent, 408 So. 2d at 1027-28. However, Appellant claims that he did not request production of the grand jury transcripts to assist in preparation of his defense or to cross-examine state witnesses, but to ensure that the indictment was not based upon perjured testimony. Yet, beyond alleging mere inconsistencies, Appellant’s motion failed to provide a specific basis to conclude that any grand jury witness committed perjury. Appellant could not seek a blanket production of the grand jury transcripts based on mere surmise or speculation regarding possible inconsistencies in the testimony. 3 To the extent Appellant sought production of the grand jury transcripts in order to challenge the indictment, Appellant failed to establish a violation of due process. The Florida Supreme Court has explained: [A]n indictment results from a hearing only to determine probable cause. It is no more than an accusation, the merits of which will be determined at trial. See Fratello v. State, 496 So. 2d 903, 911 (Fla. 4th DCA 1986). Therefore, a court should not, for the purposes of deciding whether to dismiss an indictment, “consider the . . . sufficiency of the evidence upon which an indictment or information is based.” Id. (quoting State v. Schroeder, 112 So. 2d 257, 261 (Fla. 1959)). Even when the State’s case at trial differs materially from the time of the grand jury indictment, this Court has not found error in the trial court’s refusal to dismiss the indictment. See Evans v. State, 808 So. 2d 92, 101 (Fla. 2001). Rather, this Court finds that due process is implicated when “a prosecutor permits a defendant to be tried upon an indictment which he or she knows is based on perjured, material testimony without informing the court, opposing counsel and the grand jury.” Id. (quoting Anderson v. State, 574 So. 2d 87, 91 (Fla. 1991)). Murray v. State, 3 So. 3d 1108, 1118 (Fla. 2009) (emphasis in original). Because defense counsel conceded below that Appellant was not alleging that the State knowingly presented any perjured grand jury testimony, there was no basis to dismiss the indictment. Accordingly, Appellant failed to show that he was entitled to the production of the grand jury transcripts in order to challenge the indictment. AFFIRMED. B.L. THOMAS, WINOKUR, and JAY, JJ., concur. 4 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Jessica J. Yeary, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Robert "Charlie" Lee, Assistant Attorney General, Tallahassee, for Appellee. 5