ORLANDO PISEGNA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Orlando Pisegna was convicted of conspiracy to traffic in cocaine after a jury trial, but the Fourth District Court of Appeal reversed his conviction due to the trial court's admission of undisclosed rebuttal witness testimony without a Richardson hearing and erroneous jury instructions on principals.
The court reversed Pisegna's conviction, holding that the trial court committed reversible error by admitting Hood's testimony without a Richardson hearing where the prosecutor failed to list him on the requested witness list, particularly where the prosecutor could reasonably have anticipated calling him. The court also noted error in instructing the jury on principals despite granting judgment of acquittal on the substantive trafficking count.
[1] A trial court commits reversible error by admitting the testimony of an undisclosed rebuttal witness without conducting a Richardson hearing.
[2] A Richardson hearing is required when the state proffers a rebuttal witness whose name the prosecutor failed to include on a witness list requested by the defendant in di…
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Join FLexlaw to unlock all legal intelligence“A trial court must conduct a Richardson hearing where the state proffers a rebuttal witness whose name the prosecutor failed to insert on the witness list requested by the defendant in discovery.”
Establishes the core procedural requirement that was violated in this case
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Join FLexlaw to unlock all legal intelligencePisegna was arrested following a cocaine sale at a codefendant's residence on May 7, 1985. He was charged with trafficking in cocaine, conspiracy to t…
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PER CURIAM.
Orlando Pisegna appeals from a judgment finding him guilty of conspiracy to traffic in cocaine. We reverse.
This case involves an alleged drug sale which was consummated on May 7, 1985, after several days of negotiations. The sale took place at a codefendant’s residence in Broward County. After the alleged sale took place, police surveillance units arrested all those present at the scene of the sale, including the appellant.
The state filed a three-count information charging Pisegna with: (I) trafficking in cocaine, (II) conspiracy to traffic in cocaine and (III) possession of a controlled substance, to-wit: cocaine. The judge granted the appellant’s motion for judgment of acquittal as to the trafficking count (Count I). The jury subsequently found the appellant guilty only of Count II, conspiracy to traffic in cocaine. The judge entered a judgment of guilty and sentenced the appellant to fifteen years in prison.
The trial court correctly denied the defendant’s motion for judgment of acquittal on the conspiracy count because of the defendant’s post-arrest statements. However, the trial judge committed reversible error when he admitted into evidence the testimony of Ron Hood, the state’s undisclosed rebuttal witness, without holding a hearing regarding the prosecutor’s failure to include Hood’s name on the requested witness list. A trial court must conduct a Richardson hearing where the state proffers a rebuttal witness whose name the prosecutor failed to insert on the witness list requested by the defendant in discovery. Fulmore v. State, 483 So. 2d 765 (Fla. 4th DCA 1986). See generally Richardson v. State, 246 So. 2d 771 (Fla.1971). This requirement extends to rebuttal witnesses which the state’s attorney should “reasonably anticipate” that he will need to call. Lucas v. State, 376 So. 2d 1149, 1151 (Fla.1979), appeal after remand, 417 So. 2d 250 (Fla.1982); Witmer v. State, 394 So. 2d 1096 (Fla. 1st DCA 1981).
In the present case, the prosecutor could reasonably have anticipated that Hood might reasonably be called as a witness because Hood was involved in the police surveillance of the eodefendant’s house, and because he was involved in earlier surveillance of the appellant at a restaurant.
We also note that the trial court erred by instructing the jury on “principals” despite the fact that the court had granted the defendant’s motion for judgment of acquittal on the substantive count of trafficking in cocaine. But see Chestnut v. State, 452 So. 2d 1125 (Fla. 3d DCA 1984).
REVERSED.
DOWNEY, ANSTEAD and GUNTHER, JJ., concur.
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Citator
Cited By
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Kanisky Evans v. State, 985 So. 2d 1105 (Fla. 3d DCA 2008)…he scene is insufficient to establish a conspiracy.” Mickenberg, 640 So. 2d at 1211. That being so, the principal instruction should not have been given in connection with the conspiracy charges. The Fourth District has so held in Pisegna v. State, 488 So. 2d 624, 625 (Fla. 4th DCA 1986).6 The question whether defendant Evans was a member of the conspiracy on the charged counts was a disputed issue at trial. The problem with the giving of the principal instruction is that it allowed the jury to find the def…
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Watson v. State, 509 So. 2d 396 (Fla. 4th DCA 1987)…er the defendant was prejudiced by the state’s failure to list its rebuttal witnesses, and whether such conduct was willful. Richardson. Failure to conduct such a hearing under these circumstances requires reversal. See Richardson; Pisegna v. State, 488 So. 2d 624 (Fla. 4th DCA 1986); Raffone v. State, 483 So. 2d 761 (Fla. 4th DCA), dismissed, 491 So. 2d 281 (Fla.1986); Donahue v. State, 464 So. 2d 609 (Fla. 4th DCA 1985); Fasenmyer v. State, 383 So. 2d 706 (Fla. 1st DCA), rev. denied, 389 So. 2d 1109 (Fla.19…
Authorities Cited
- Richardson v. State, 246 So. 2d 771 (Fla. 1971)
- Lucas v. State, 376 So. 2d 1149 (Fla. 1979)
- Lucas v. State, 417 So. 2d 250 (Fla. 1982)
- Witmer v. State, 394 So. 2d 1096 (Fla. 1st DCA 1981)
- The Assemblies OF GOD v. Roberto Garrido and other Unknown Parties, 452 So. 2d 1125 (Fla. 3d DCA 1984)
- Bennie Fulmore v. State, 483 So. 2d 765 (Fla. 4th DCA 1986)