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Brief 2


Appellant, XXXXXXXXXX, the Defendant in the lower tribunal, will be referred to herein as “the Defendant” or by name. Appellee, the State of Florida, will be referred to as “the State.”

The Record on Appeal is contained, in total, in four (4) volumes. References to the initial volume of the record will be cited using the abbreviation “R” followed by the appropriate page number(s). References to the jury trial volumes of the record will be cited using the abbreviation “JT” followed by the appropriate volume and page number(s).


A. Nature of the Case

This is a direct appeal of a final criminal judgment and sentence of the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida, Case Number: 2011-CF-XXX, rendered against Mr. XXXXXXXXXX, Appellant, Defendant below, on XXXX XX, 2012. (R: 64-71; 116).

B. Course of Proceedings Below and Statement of the Facts

XXXXXXXXXX, XX at the time, was charged with two counts of trafficking in hydrocodone. (R: 1; 9)[1]. The police investigation which precipitated XXXXXXXXXX’s arrest was based on law enforcement’s use of confidential informant Jason Coshatt. (R: 12-13).

The case proceeded to trial. (JTI: 1). The State gave an opening statement in which it explained that a paid confidential informant named Jason Coshatt had made controlled telephone calls to and had eventually purchased drugs from Mr. XXXXXXXXXX. According to the State, both the calls and the purchase were monitored by law enforcement. (JTI: 29-30). Defense counsel’s opening argument suggested that the State would not present any information as to what led to the described phone calls and drug purchase. (JTI: 32).

The State’s first witness was the confidential informant Jason Coshatt. (JTI: 35). Jason Coshatt testified that he was a convicted felon who was paid to work for the Leon County Sheriffs Office. (JTI: 36). Jason Coshatt testified that he made recorded telephone calls and purchased drugs from XXXXXXXXXX in October and November of 2010. (JTI: 36-37). Recordings of both the telephone calls and an in-person drug transaction were placed into evidence and published for the jury. (JTI: 40-46). The State questioned Jason Coshatt who explained the terminology and background of the communications. (JTI: 46-49). Jason Coshatt identified XXXXXXXXXX as the man with whom he had completed the drug transaction. (JTI: 49). Jason Coshatt testified that he was paid sixty dollars ($60.00) for the endeavor. (JTI: 50).

Defense counsel cross-examined Jason Coshatt. (JTI: 50). Defense counsel asked Jason Coshatt about his communication with XXXXXXXXXX prior to the recorded telephone calls in which had been published for the jury. (JTI: 51-53). Defense counsel eventually asked whether Jason Coshatt’s relationship with Mr. XXXXXXXXXX began in October and November of 2010. (JTI: 65). The questioning brought out the fact that Jason Coshatt was familiar with XXXXXXXXXX to the extent that the two greeted each other in a comfortable and casual manner. (JTI: 65).

In redirect examination, the State attempted to ask Jason Coshatt about his basis of knowledge regarding XXXXXXXXXX as a source of drugs. Defense counsel objected and the attorneys joined the trial judge at sidebar for argument. (JTI: 66). Defense counsel argued that he believed the State was trying to elicit testimony regarding prior drug sales. (JTI: 66-67). The State argued that defense counsel had opened the door to this testimony by cross examining Jason Coshatt regarding his relationship with Mr. XXXXXXXXXX. (JTI: 67). The trial judge allowed a voir dire as to the issue. (JTI: 67). The parties agreed that there had not been a prior opportunity for defense counsel to depose Jason Coshatt. The State had allowed defense counsel to speak to Jason Coshatt that very morning before the start of the trial. (JTI: 67-68).

Jason Coshatt’s testimony was then proffered outside of the presence of the jury. (JTI: 68). Jason Coshatt testified, in the past, Mr. XXXXXXXXXX had sold pills to the mother of his children. (JTI: 69). These prior sales occurred between 2004 and 2006[2]. (JTI: 69). After the proffer, defense counsel argued that the newly-discovered information constituted a discovery violation. (JTI: 71). The trial court, without conducting a Richardson[3] hearing; found that no discovery violation had occurred. (JTI: 72). Defense counsel argued that the defense had made many attempts to communicate with Jason Coshatt who could not be located. It was argued that XXXXXXXXXX had just revealed the name of another potential witness and that the defense would be left without an opportunity to investigate the new information. (JTI: 72). The trial court responded and informed defense counsel that nothing revealed would indicate a discovery violation had occurred. (JTI: 72). The trial refused to hold a Richardson hearing. (JTI: 72).

Defense counsel argued that law enforcement knew about this information. (JTI: 72-73). Jason Coshatt informed the parties that he only told the detectives that the sales were made to the mother of his children and that he had not revealed the woman’s name. (JTI: 73). Defense counsel argued that Mr. XXXXXXXXXX was being prejudiced because the State was getting into criminal acts which were not revealed during the discovery process. Defense counsel reminded the court that the defense had spoken to Jason Coshatt in the hallway prior to the trial and that the information had not been mentioned. (JTI: 73).

The State argued that Jason Coshatt had mentioned the prior sales during the hallway conversation. (JTI: 74). The State argued that defense counsel might have misunderstood what Jason Coshatt was saying due to the brevity of the hallway conversation. (JTI: 74). The

State then argued that the defense had in fact been provided with an opportunity to depose Jason Coshatt because the defense was given an opportunity to speak to Jason Coshatt on the morning of trial. (JTI: 74). The State then revealed that it was aware of the prior sales and intentionally omitted that information from opening statements while waiting to see whether defense questioning opened the door to the inquiry. (JTI: 74).

Defense counsel responded by admitting that he had opened the door to the questioning, but that the information was in the State’s possession, and had not been turned over. (JTI: 75). Defense counsel argued that Jason Coshatt, in his role as a confidential informant, was an agent of the State.

The trial court overruled the defense’s objection and simply found that there had not been any discovery violation. (JTI: 75).

When the jury returned, Jason Coshatt responded to State questioning and testified that the mother of his children was addicted to pain pills and that XXXXXXXXXX had been selling them to her. (JTI: 77). When defense counsel cross examined Jason Coshatt about the matter; Jason Coshatt eluded to the other criminal charge which he had been instructed not to mention pursuant to a motion in limine. Defense counsel’s motion for a mistrial was denied. (JTI: 85-86).

Following Jason Coshatt’s testimony, the State called two law enforcement witnesses. (JTI: 88; 119). The State entered tablets into evidence. (JTI: 94).

The State then called a chemist from the Florida Department of Law Enforcement who testified that she tested one of the tablets which tested positive for hydrocodone. (JTI: 130-131). The State rested. (JTII: 141). The defense’s motion for a judgment of acquittal was denied. (JTII: 144).

XXXXXXXXXX testified in his own defense. (JTII: 145). XXXXXXXXXX testified that Jason Coshatt had come to his home with his girlfriend in the past. XXXXXXXXXX testified that Jason Coshatt saw XXXXXXXXXX’s pill bottle and inquired about the medication. (JTII: 147). XXXXXXXXXX testified that Jason Coshatt badgered him to sell the medication. (JTII: 147-148). XXXXXXXXXX attempted to describe threats which Jason Coshatt had made. The State’s hearsay objections prevented XXXXXXXXXX from recounting those threats. (JTII: 148-149).

The defense rested following the State’s cross examination of XXXXXXXXXX. (JTII: 160). Closing arguments were made. (JTII: 182; 186; 194). The issue of entrapment was argued in closing arguments. (JTII: 191-193; 196). The State argued that XXXXXXXXXX was unable to relay the exact spoken threats from Jason Coshatt. (JTII: 196). The jury was eventually instructed as to entrapment. (JTII: 204-206)(R: 50-51). The jury returned a guilty verdict. (JTII: 218); (R: 57). At a separate proceeding, XXXXXXXXXX was sentenced to five years in prison with a three year minimum mandatory sentence. (R: 116); (R: 64-71). A timely Notice of Appeal was filed[4]. (R: 87). This appeal follows.


The trial court committed reversible error when it simply refused to hold a Richardson hearing. Defense counsel made an overt discovery objection coupled with argument. The trial court was therefore duty bound to hold a Richardson hearing.

The trial court committed reversible error when it sustained the State’s objection and prevented XXXXXXXXXX from testifying as to the threats he received from Jason Coshatt. Where a defense of entrapment is made, statements that threaten or induce the defendant into committing a criminal act are not hearsay. The error was especially harmful in the trial below which boiled down to a credibility contest.



A trial court’s decision regarding whether or not to conduct a Richardson[5] hearing is reviewed under a de novo standard. The trial court is required by law to grant a Richardson hearing. Curry v. State, 1 So. 3d 394, 398 (Fla. 1st DCA 2009).

The first witness called by the State was Jason Coshatt. (JTI: 35). Jason Coshatt was a paid snitch who had worked for State law enforcement. (JTI: 36). Jason Coshatt described how he conducted a drug deal with XXXXXXXXXX. (JTI: 46-49). Defense counsel cross-examined Jason Coshatt and asked him about his relationship with XXXXXXXXXX prior to the drug deal which had just been described. (JTI: 65). The State then began a redirect examination of Jason Coshatt by attempting to have him testify about prior drug deals XXXXXXXXXX had conducted with another individual. Defense counsel objected and informed the court that this was the first time he had heard anything about the prior sales XXXXXXXXXX allegedly made to another individual. (JTI: 66). The court and the attorneys argued sidebar; it was revealed that defense counsel never had an opportunity to depose the State’s snitch because the snitch would not respond to a deposition subpoena. (JTI: 67). The State had made its snitch available to speak to defense counsel on the morning of trial; the snitch had spoken to defense counsel in the courthouse hallway. (JTI: 68). The court allowed a proffer. (JTI: 68-71).

Defense counsel argued that a discovery violation had occurred. (JTI: 71). The court responded and informed defense counsel that the State was not under an obligation to reveal the information in its possession. (JTI: 72). The court acknowledged that defense counsel was unable to locate the snitch. (JTI: 72). Defense counsel argued that he had retained an investigator in an attempt to locate the snitch. Defense counsel stated that the snitch had just revealed the name of another individual who was unavailable as a witness. (JTI: 72). The trial court found that there was no discovery violation that would require aRichardson hearing. (JTI: 72). Defense counsel continued to object – arguing that the defendant had been placed at a severe disadvantage and that there was no opportunity to prepare a defense or rebut the other alleged crimes that were revealed. (JTI: 73).

The Assistant State Attorney assigned to prosecute XXXXXXXXXX made a responsive argument. She acknowledged that she was aware of the prior crimes and that she purposely omitted them from her opening statement because she was not sure whether the defense would open the door to the conduct. (JTI: 74). She acknowledged that defense counsel couldn’t depose the snitch but stated that she allowed defense counsel to speak with him on the morning of trial. She acknowledged that defense counsel may have misunderstood the meaning of what the snitch told him on the morning of trial. This miscommunication might have occurred due to the quick back-and-forth which took place with the snitch that morning. (JTI: 74).

Defense counsel continued to object. The trial court overruled defense counsel’s objections and found that no discovery violation had occurred. (JTI: 75). The snitch was re-called and the State elicited testimony indicating that the mother of his children is addicted to pain medication which she had previously purchased from Mr. XXXXXXXXXX. (JTI: 77).

The trial court failed to conduct the required Richardson analysis. (JTI: 66-75). Pursuant to Richardson and its progeny the trial court was required to make findings during a two-step process. Richardson v. State, 246 So. 2d 771 (Fla. 1971). The trial court was required to determine whether the state violated the discovery rules. See Sinclair v. State, 657 So. 2d 1138, 1140 (Fla. 1995). If a violation occurred, the trial court was then required to assess “whether the state’s violation was inadvertent or willful, whether the violation was trivial or substantial, and most importantly, what effect, if any, did it have upon the ability of the defendant to properly prepare for trial.” Richardson 246 So. 2d at 775 (quoting Ramirez v. State, 241 So. 2d 744, 747 (Fla. 4th DCA 1970)).

At Mr. XXXXXXXXXX’s trial the court made none of these findings. (JTI: 66-75). Apparently believing that some threshold showing was required prior to requiring a hearing; the trial court refused to engage in theRichardson analysis. (JTI: 72). XXXXXXXXXX was then acutely prejudiced when the snitch testified he had sold drugs to the mother of his children (who was addicted to pain medication). (JTI: 77).

While it was not discussed at the trial, the discovery violation which may well have occurred was a violation of Fla. Stat. § 90.404(2)(d)1. The arguments of counsel reveal that the Assistant State Attorney and the detectives involved with the investigation were aware of the prior crimes. (JTI: 73-74). The arguments of counsel reveal that defense counsel was wholly unaware of the prior drug sales. (JTI: 66; 71; 73). Whether the Assistant State Attorney learned of the prior crimes on the morning of trial, or whether she had earlier knowledge of the crimes, is not part of the record because the court refused to conduct a Richardsonhearing. See Barbee v. State, 630 So. 2d 655, 656 (Fla. 5th DCA 1994).

Once a trial court has notice of a discovery violation, the court must conduct a Richardson hearing to inquire about the circumstances surrounding the state’s violation of the discovery rules and examine the possible prejudice to the defendant. Smith v. State, 7 So. 3d 473, 505 (Fla. 2009). This requirement applies when the court learns of a possible discovery violation, in order to determine whether there has been an actual discovery violation. Landry v. State, 931 So. 2d 1063, 1065 (Fla. 4th DCA 2006). It also applies even if the defendant does not request a Richardson hearing. See C.D.B. v. State, 662 So. 2d 738, 741 (Fla. 1st DCA 1995); Sears v. State, 656 So. 2d 595 (Fla. 1st DCA 1995).

Prejudicial error occurred because the trial court failed to conduct the required Richardson analysis and instead relied on an incorrect interpretation of the required procedure. There is a reasonable probability that XXXXXXXXXX’s trial attorney would have avoided questioning the State’s snitch about his relationship with XXXXXXXXXX had he known the relationship was based on uncharged criminal conduct. Additionally, timely disclosure of the alleged prior sales would have allowed his attorney to investigate the incident and search for evidence to refute it or at least cast doubt on the snitch’s testimony regarding the incident. In addition, XXXXXXXXXX could have called into question the snitch’s credibility as a whole. XXXXXXXXXX’s case should be remanded for a new trial. Curry v. State, 1 So. 3d 394, 399 (Fla. 1st DCA 2009).



Standard of Review

An appellate court reviews a trial court’s decision to admit evidence for abuse of discretion. Ray v. State, 755 So. 2d 604, 610 (Fla. 2000) (citing Alston v. State, 723 So. 2d 148 (Fla. 1998)). However, the trial court’s discretion is limited and circumscribed by the rules of evidence. Johnston v. State, 863 So. 2d 271, 278 (Fla. 2003) (citing Nardone v. State, 798 So. 2d 870, 874 (Fla. 4th DCA 2001)). A trial court’s erroneous interpretation of the rules and case law is subject to de novo review. Pantoja v. State, 59 So. 3d 1092, 1095-6 (Fla. 2011).

Hearsay and Entrapment

Hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Fla. Stat. § 90.801(1)(c). Except as provided in Florida Statutes, hearsay is inadmissible. Fla. Stat. § 90.802.

Where a defendant claims entrapment; threats made by the individual who supposedly induced the criminal conduct are not hearsay. This is because the threats go to the speaker’s state of mind, show bias, and are essential to establishing an entrapment defense. Everett v. State, 801 So. 2d 189 (Fla. 4th DCA 2001);Kent v. State, 704 So. 2d 121(Fla. 1st DCA 1997).


XXXXXXXXXX took the witness stand in his own defense. (JTII: 145). This was no doubt a difficult decision as it forced him to admit to ten (10) prior felonies. (JTII: 153). He began to testify about his relationship with snitch Jason Coshatt. (JTII: 145-147). XXXXXXXXXX began to testify about a time during which Jason Coshatt came to his home and got into an argument with his female companion. (JTII: 148). The State made a hearsay objection to XXXXXXXXXX’s statements. The objection was sustained. (JTII: 148). Defense counsel offered an exception to the general hearsay rule. Defense counsel argued that the statements went to the state of mind of the declarant. (JTII: 148). The trial court again sustained the State’s objection. (JTII: 148). Defense counsel asked XXXXXXXXXX about any threats which Jason Coshatt had made towards Mr. XXXXXXXXXX. The State again interrupted with a hearsay objection which was sustained. (JTII: 148-149). XXXXXXXXXX’s attorney asked him what he had observed. XXXXXXXXXX testified that he had observed a threat. (JTII: 149). XXXXXXXXXX testified that, at his age, he was in fear of Jason Coshatt. (JTII: 149). XXXXXXXXXX was asked what Jason Coshatt had done to place him in fear. The State submitted a hearsay objection which was sustained. (JTII: 150). XXXXXXXXXX testified that Jason Coshatt had never done anything physical to threaten him but that Jason Coshatt had threatened him with his words. (JTII: 150). During cross examination, XXXXXXXXXX testified he picked up the drugs for Jason Coshatt because of what Jason Coshatt said he would do to people. (JTII: 155).

During the charge conference the defense had argued that the jury should be instructed as to the entrapment defense. The trial court eventually agreed. (JTII: 162; 167). During the defense closing argument entrapment was specifically argued to the jurors. (JTII: 191-193). The State rebutted by arguing that there was no evidence that XXXXXXXXXX had been threatened in any way. The State conceded that XXXXXXXXXX claimed he was threatened. But the State argued XXXXXXXXXX was unable to tell the jury how he was threatened. (JTII: 196). The jury was eventually instructed as to entrapment. (JTII: 204-206)(R: 50-51).

Because threats Jason Coshatt made towards XXXXXXXXXX showed Jason Coshatt’s bias, established his state of mind, and were essential in supporting the entrapment defense, the trial court should have allowed the actual threatening language into evidence. Everett v. State, 801 So. 2d 189 (Fla. 4th DCA 2001);Crumley v. State, 534 So. 2d 909 (Fla. 1st DCA 1988). Defense counsel argued that the threats went to the speaker’s state of mind and the trial court sustained the hearsay objection notwithstanding. (JTII: 148). Defense counsel’s objection was well taken. The actual statements should have been heard by the jurors who deliberated the case. The lack of the actual statements was highlighted in the State’s final closing argument. (JTII: 196). This was harmful error. XXXXXXXXXX should be afforded a new trial.


XXXXXXXXXX respectfully requests this Honorable Court reverse his judgment and remand his case with instructions that he be afforded a new trial.

Respectfully submitted,

/s/ Luke Newman


Luke Newman
Luke Newman, P.A.
308 McDaniel Street
Tallahassee, Florida 32303
850.224.4444 (phone)
850.224.9335 (fax)
Fla. Bar ID 0859281


I hereby certify that a copy of foregoing has been provided to:

Office of the Attorney General

(sent via email to: criminalappealsintake@myfloridalegal.com)

…on this nineteenth (19th) day of XXXXXXXXXX, 2012.

/s/ Luke Newman


Luke Newman
Fla. Bar No. 0859281


Counsel for the Appellant hereby certifies, pursuant to Florida Rule of Appellate Procedure 9.210(a)(2), that the type used in this brief is Times New Roman 14 point proportionally spaced font.

/s/ Luke Newman _________________________

Luke Newman
Fla. Bar No. 0859281

[1] This appeal solely addresses the judgment and sentence rendered as to the first count. The second count was severed and handled separately. (R: 106-107).

[2] XXXXXXXXXX later denied meeting Jason Coshatt until 2010. (JTII: 153).

[3] Richardson v. State, 246 So. 2d 771 (Fla. 1971).

[4] The State also appealed the imposed sentence. (R: 73). The two appeals have been consolidated by order of this Court rendered August 17, 2012.

[5] Richardson v. State, 246 So. 2d 771 (Fla. 1971).

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