Bailey v. State

100 So. 3d 213, 2012 Fla. App. LEXIS 18886, 2012 WL 5349404
District Court of Appeal of Florida·Decided October 31, 2012·No. No. 3D12-1426·Published·Cited by 4 cases

Opinion

FERNANDEZ, J.

Walter Bailey petitions this Court for a writ of certiorari seeking to quash the trial court’s discovery order or, in the alternative, a writ of mandamus requesting that the court appropriately review the discovery order it entered involving Bailey’s penal phase proceedings. We deny Bailey’s petition for writ of certiorari because the court properly used its discretion when it entered the discovery order and ordered an in camera review. Furthermore, we deny the petition for a writ of mandamus because Bailey did not prove the elements necessary to obtain such a writ, nor did the trial court fail in the execution of any ministerial duty owed to Bailey.

1. Factual and Procedural Background

Bailey is set for trial on the charges of first-degree murder, attempted murder, attempted felony murder, burglary with assault, and armed robbery. The State seeks the death penalty.

In compliance with applicable rules of procedure, Bailey identified four mental health experts whom he retained to potentially call upon as witnesses in the event of a penalty phase proceeding (“PPP”). The [216]*216State has not provided any discovery relative to its use of experts in the potential PPP.1

The State filed a motion seeking pretrial production of reports, testing data, notes, and evaluations conducted by the four mental health experts. Bailey objected, after which the court directed Bailey to produce all requested materials. The court further ordered the redaction of any information Bailey believed should be redacted for the in camera review. The court also requested an index of the portions of discovery that might be harmful to Bailey’s rights.

Bailey moved for reconsideration and clarification of the order. At the hearing, the State claimed that no authority for reconsideration of discovery orders existed. The court subsequently granted the State’s motion to strike Bailey’s motion. The court also denied Bailey’s request for an explanation of the court’s reasoning underlying its decision to strike the reconsideration motion.

Bailey requests certiorari relief from the trial court’s discovery order. In the alternative, Bailey requests a writ of mandamus compelling the trial court to undertake a merits review or issue a written order detailing the reasons for striking his motion for reconsideration.

2. Analysis

a. Certiorari Review

We deny Bailey’s request for a writ of certiorari. Certiorari is appropriate when a discovery order departs from the essential requirements of law, causes material injury to a petitioner throughout the remainder of the proceedings, and effectively leaves no adequate remedy on appeal. Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). Discovery that may reasonably cause material injury of an irreparable nature includes material protected by privilege, work product, or that involves a confidential informant that may cause such injury if disclosed. Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1100 (Fla.1987).

First, the court did not depart from the essential requirements of law when it ordered pretrial discovery of potentially privileged information from potential expert witnesses. Florida Rule of Criminal Procedure 8.220, which delineates the reciprocal discovery rules used in criminal proceedings, applies to guilt and penalty phase proceedings. Abdool v. State, 53 So.3d 208, 219-20 (Fla.2010); State v. Clark, 644 So.2d 556, 556 (Fla. 2d DCA 1994); Sexton v. State, 643 So.2d 53, 53 (Fla. 2d DCA 1994); Booker v. State, 634 So.2d 301 (Fla. 5th DCA 1994). The rule requires disclosure of “reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons” provided the plaintiff makes a timely request for the information. Fla. R. Crim. P. 3.220(d)(1)(B); Abdool, 53 So.3d at 219-20.

However, rule 3.220 also allows trial courts to exercise their discretion regarding the extent of disclosure and times for compliance upon a showing of good cause or materiality. See Fla. R. Crim. P. 3.220(f), (k). Rule 3.220 requires disclo[217]*217sure of all defense witnesses prior to the PPP. See Clark, 644 So.2d at 556-57.

In addition, a defendant must disclose raw data from mental health experts prior to a PPP. See Abdool, 53 So.3d at 219-20. The defendant in Abdool complained that the trial court erred when it ordered the defense to produce raw data from the defense’s mental health expert prior to the penalty phase. Id. at 219. The Florida Supreme Court disagreed with the defendant. Id. The Court reaffirmed that rule 3.220 applies to the PPP and noted that the mandated reciprocal discovery includes disclosure of reports or statements of experts. Id.

This Court has determined that rule 3.220 requires reciprocal discovery regarding information relied upon by experts. See Smith v. State, 873 So.2d 585, 587 (Fla. 3d DCA 2004). This Court has also specifically protected work product from discovery. Id.

Bailey argues that he need not disclose the requested data because there is no precedent that allows such disclosure pretrial, the information is privileged, and disclosure would intrude on his work product. He distinguishes Clark, arguing that the court in Clark did not approve such discovery order. He claims such a discovery order, entered pretrial, places the defense in the position of either delaying PPP preparation for fear of revealing privileged matters or waiving the right to present a PPP defense in order to have a fair trial on guilt issues. However, Bailey fails to recognize the court’s order for in camera review here is meant to limit the broad discovery order of which Bailey complains.

The review process should preserve Bailey’s privileged work product from disclosure. The trial court relies on Abdool to justify the order for data and tests from Bailey’s mental health experts. In Abdool, the court specifically permitted the disclosure of raw data from the mental health expert who was to be used as a PPP witness. See Abdool, 53 So.3d at 219-20. Similarly, the trial court here correctly permitted the disclosure of raw data from the mental health experts who Bailey intends to call as potential PPP witnesses. The court did acknowledge that some of the requested discovery material from Bailey’s experts (notes, reports, evaluations, testing, and other items) may be privileged. Consequently, the court addressed Bailey’s concerns when it requested submission of all requested material to the court for in camera review.

The State is entitled to fully review materials upon which a defense expert relies. However, the court must protect work product during in camera review. In Smith, this Court made clear that if requested documents, compiled by defense counsel, do not fall into the category of rule 3.220(d)(B)(ii) — reports, statements, physical or mental exams, experiments or comparisons made by experts in connection with a particular case — then the material is privileged work product. Smith, 873 So.2d at 587. The court, during in camera review, will determine if the requested material is work product and therefore privileged.

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Bailey v. State, 100 So. 3d 213, 2012 Fla. App. LEXIS 18886, 2012 WL 5349404 (Fla. Ct. App. 2012).

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