SIGFREDO GARCIA

v.

STATE OF FLORIDA

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D19-4005 _____________________________

SIGFREDO GARCIA,

Appellant/Cross-Appellee,

v.

STATE OF FLORIDA,

Appellee/Cross-Appellant.

_____________________________

On appeal from the Circuit Court for Leon County. James C. Hankinson, Judge.

September 29, 2021

PER CURIAM.

Appellant, Sigfredo Garcia, appeals his convictions for firstdegree murder and conspiracy to commit murder, and the State cross-appeals. Appellant asserts on appeal that the trial court erred in its ruling on the State’s discovery violation and in its response to a jury question during deliberations. For the reasons that follow, we affirm Appellant’s convictions and dismiss the cross-appeal. Several days before the jury trial, Appellant’s counsel was informed by the co-defendant’s attorney that the State’s expert in bullet path documentation, Robert Yao, changed his opinion about the height of the shooter upon reviewing additional documentation

2 following his deposition testimony. When Yao informed the prosecutor about the change in his opinion sometime within two weeks of the trial, the prosecutor advised him to notify the defense. Appellant’s counsel did not bring to the trial court’s attention prior to trial that the prosecutor failed to disclose to him the change in Yao’s testimony. In fact, defense counsel sat through opening statements and the testimony of six State witnesses, and he waited until Yao, the State’s seventh witness, was asked about his opinion on direct examination to raise the discovery violation. The prosecutor stated she was unaware that Yao informed only the codefendant’s attorney, and not Appellant’s counsel, and there was no bad faith on her part. Defense counsel indicated that he believed the prosecutor and the error was not the State’s fault, but that of Yao. After a Richardson* hearing, the trial court denied Appellant’s request to exclude Yao’s new opinion testimony upon finding that the State’s discovery violation was not willful and did not result in procedural prejudice, which ruling Appellant challenges. The State argues in part that the issue was not preserved. Because Appellant did not timely bring the discovery violation to the trial court’s attention, we agree with the State that the argument was not preserved and, accordingly, affirm as to this issue. See Scott v. State, 230 So. 3d 613, 619 n.5 (Fla. 5th DCA 2017) (stating that a discovery violation is waived if not timely raised, and noting that had defense counsel been aware of the substance of the witness’s rebuttal testimony, he should have raised the alleged discovery violation prior to the witness’s testimony); Major v. State, 979 So. 2d 243, 244 (Fla. 3d DCA 2007) (“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.”); see also Guzman v. State, 42 So. 3d 941, 943–44 (Fla. 4th DCA 2010). During deliberations, the jury submitted the following question: “According to the law [a]re there any exceptions/exemptions to an individual being a principal to a criminal act --> Re: Instructions Instructions page 5: Principals, ¶

* Richardson v. State, 246 So. 2d 771 (Fla. 1971).

LEWIS, MAKAR, and BILBREY, JJ., concur.

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Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Baya Harrison, III, Monticello, for Appellant/Cross-Appellee.

Ashley Moody, Attorney General, and Robert "Charlie" Lee, Assistant Attorney General, Tallahassee, for Appellee/Cross- Appellant.