TYRONE KELSEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Tyrone Kelsey appeals his conviction for rape, contending the trial court erred in denying his request to produce a codefendant's prior police statements to impeach the codefendant's trial testimony. The appellate court affirmed the conviction, holding that Kelsey failed to pursue available discovery procedures and that any error was harmless in light of overwhelming other evidence.
The trial court did not commit reversible error. Kelsey failed to pursue the discovery procedures available to him through his granted pretrial motion and failed to demonstrate that the information was otherwise unavailable, and any error was harmless given the overwhelming sufficiency of other evidence to support the conviction.
[1] A defendant cannot complain of a failure to utilize discovery procedures when those procedures were previously granted and the defendant failed to pursue them.
[2] A defendant must demonstrate that information sought through a motion to produce was not otherwise available to establish reversible error.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“no intelligent concept of fairness has ever been advanced which would require one side of a judicial controversy to prepare the case for his adversary [or to furnish such adversary] with evidence favorable to him when such evidence is otherwise reasonably available”
Establishes that a party has no duty to furnish discoverable evidence to an adversary when proper discovery procedures are available, justifying the court's refusal to require production of the codefendant's statements.
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Join FLexlaw to unlock all legal intelligenceKelsey was indicted for rape along with three others. The trial court granted his pretrial motion for discovery and production of statements on June 1…
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Appellant seeks reversal of his conviction in a jury trial on charges of rape for which he was sentenced to twenty-five years imprisonment.
The sole question for our determination is whether the trial court erred in denying the motion made by appellant during his trial to produce the prior statements made to the police and the state attorney by a codefendant for the purpose of determining whether said prior statements were inconsistent with said codefendant’s testimony at appellant’s trial.
Appellant, along with three others, was indicted for rape and trial was severed as to each of the defendants. The record indicates that appellant made a pretrial motion for a statement of particulars, production of confessions or statements, and discovery; and said motion was granted on June 11, 1972. For some reason not indicated by the record or the briefs of the parties herein, appellant apparently did not obtain the prior statements made by code-fendant Anderson, During the trial of appellant, defense counsel moved for the production of said statements when Anderson was called upon by the State to testify. The motion was denied and appellant now contends that this constituted reversible error.
We do not agree. First, appellant's pretrial motions for discovery and production of statements having been granted, appellant cannot now complain of his failure to utilize and pursue said discovery procedures available to him. As stated in State v. Gillespie, 227 So.2d 550 at 553 (Fla. App.2nd, 1969):
“ . . .no intelligent concept of fairness has ever been advanced which would require one side of a judicial controversy to prepare the case for his adversary [or to furnish such adversary] with evidence favorable to him when such evidence is otherwise reasonably available(Emphasis supplied.)
Appellant, having failed to pursue the discovery procedures available to him and having failed to demonstrate that the information sought by the motion to produce presently under consideration was not otherwise available to him, has failed to demonstrate reversible error herein.
And second, the record amply demonstrates that the additional evidence against appellant, other than the witness Anderson’s testimony, was overwhelmingly sufficient to sustain the jury’s verdict against appellant. Hence, the error complained of herein, if any there be, was certainly harmless.
Accordingly, the judgment appealed herein is affirmed.
CARROLL, DONALD K., Acting C. J., and RAWLS, J., concur.
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Wilcox v. State, 299 So. 2d 48 (Fla. 3d DCA 1974)…e that any of the items demanded would have been favorable to the defendant. The attempt.to delay the cause during trial by a fishing expedition into the prosecution’s files was properly denied by the trial judge. See Kelsey v. State, Fla.App. 1972, 267 So. 2d 685. There is no doubt that the prosecution has the affirmative duty to disclose to the defendant any material information tending to negate guilt, but here there is nothing in the record to indicate such a possibility. No error has been demonstrated.…
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Cooper v. State, 356 So. 2d 911 (Fla. 3d DCA 1978)…trial, the trial court will not be held in error for refusing to stop the trial and secure the statement for examination. See Yanetta v. State, 320 So. 2d 28 (Fla. 3d DCA 1975); Wilcox v. State, 299 So. 2d 48 (Fla. 3d DCA 1974); and Kelsey v. State, 267 So. 2d 685 (Fla. 1st DCA 1972). In the present instance, it is clear that the defendant knew of the statement at the time he took Mrs. Cooper’s deposition. We need not determine whether a defendant could, upon proper motion, have secured the production of thi…
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Floyd v. State, 361 So. 2d 802 (Fla. 3d DCA 1978)…not an abuse of discretion because it is apparent from the record that the defense counsel knew or, in the exercise of reasonable diligence, could have discovered the substance of the oral statements made to the police officer. Cf. Kelsey v. State, 267 So. 2d 685 (Fla. 1st DCA 1972); and State v. Gillespie, 227 So. 2d 550 (Fla. 2d DCA 1969). The defendant’s second claim of error urges that the evidence of intent to commit sexual battery was entirely dependent upon circumstantial evidence which did not precl…
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- State v. Gillespie, 227 So. 2d 550 (Fla. 2d DCA 1969)