Discovery in criminal cases and the requirements of Brady/Giglio

Discovery in criminal cases and the requirements of Brady/Giglio By Denis M. devlaming On May 16, 2016, Rule 3.113 (minimum standards for attorneys in felony cases) will take effect. It reads: before an attorney may participate as counsel of record in the Circuit Court for any adult felony case, including post-conviction proceedings before the trial court, the attorney must complete a course, approved by the Florida Bar for continuing legal education credits, of at least 100 minutes and covering the legal and ethical obligations of discovery in a criminal case, including the requirements of Rule 3.220, and the principles established in Brady v. Maryland, 1 and Giglio vs. United States,. 2 The purpose of this article is to discuss Florida Rule of Criminal Procedure 3.220 and, in particular, to address the legal and ethical principles established in the above case law decisions. Florida Rule of Criminal Procedure 3.220 (discovery) provides the legal requirements and obligations of both the state and the defense once a notice of discovery is filed by the defense. In doing so, it is electing to require the state to produce certain information and perform certain obligations in return for which the defense has a reciprocal duty to comply with the rule. The defense may not circumvent the rule by filing a public records request under Chapter 119, Florida Statutes, nor receive discovery information as a result of a co-defendant s participation in discovery. Paragraph (a) states if any defendant knowingly or purposely shares in discovery obtained by a co-defendant, the defendant shall be deemed to have elected to participate in discovery. Once the defense elects to participate in Rule 3.220, the prosecution has 15 days after service of the notice of discovery to serve a written discovery exhibit which shall disclose to the defendant and permit the defendant to inspect, test, and photograph (with certain exceptions such as sexual performance by a child or child pornography. Defense may view such evidence while in the custody of the state), a list of the names and addresses of all persons known to the prosecutor to have information that may be relevant to any offense charged or any defense thereto, or to any similar fact evidence to be presented at trial under section 90.404 (2), Florida Statutes. The names and addresses of such persons listed are designated into three categories. Category A include eyewitnesses, alibi witnesses and rebuttal to alibi witnesses, witnesses who were present when a recorded or unrecorded statement was taken from or made by a defendant or co-defendant, which shall be separately identified within this category, investigating officers, witnesses known by the prosecutor to have any material information that tends to negate the guilt of the defendant as to any offense charged, child hearsay witnesses, expert witnesses who have not provided a written report and a curriculum vitae or who are going to testify to test results, and informant witnesses, whether in custody, who offer testimony concerning the statements of the defendant about the issues for which the defendant is being tried. Category B witnesses are all witnesses not listed in either category A or category C. Category C witnesses comprise all witnesses who performed only ministerial functions or who the prosecutor does not intend to call at trial and whose involvement with and knowledge of the case is fully set out in a police report or other statement furnished to the defense. The rule defines the term statement. It includes a written statement made by the person and signed or otherwise adopted or approved by the person and also includes any statement of any kind or manner made

by the person and written or recorded or summarized in any writing or recording. It is specifically intended to include all police and investigative reports of any kind prepared for or in connection with the case, but shall not include the notes from which those reports are compiled. It also includes any written or recorded statements and the substance of any oral statements made by the defendant, including a copy of any statements contained in police reports or report summaries, together with the name and address of each witness to the statements. The prosecution further has the requirement to provide any written or recorded statements and the substance of any oral statements made by a co-defendant, any recorded grand jury minutes that contain testimony of the defendant, any tangible papers or objects that were obtained from or belong to the defendant and whether the state has any material or information that has been provided by a confidential informant. The prosecution must also turn over any electronic surveillance, including wiretapping, of the premises of the defendant or of conversations to which the defendant was a party and any documents relating thereto as well as whether there has been any search or seizure and any documents relating to such activity. Any reports or statements of experts made in connection with a particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons must also be disclosed to the defense. If the prosecuting attorney intends to use at hearing or trial any tangible papers or objects not obtained from or did not belong to the defendant, they must also be disclosed. If there are any tangible papers, objects or substances in the possession of law enforcement that could be tested for DNA, Rule 3.220(L) requires their disclosure. On July 1, 2014, an important amendment was made to Rule 3.220. It had to do with a new subdivision - (b)(1)(m) - relating to the state s obligations to disclose whether it has any material or information that has been provided by an informant witness. The rule includes the following five types of material or information: (i) the substance of any statement allegedly made by the defendant about which the informant witness may testify; (ii) a summary of the criminal history record of the informant witness; (iii) the time and place under which the defendant s alleged statement was made; (iv) whether the informant witness has received, or expects to receive, anything in exchange for his or her testimony; (v) the informant witness prior history of cooperation, in return for any benefit, as known to the prosecutor. In defining any benefit the Supreme Court provided additional guidance. It includes, but is not limited to, any deal, promise, inducement, pay, leniency, immunity, personal advantage, vindication, or other benefit that the prosecution, or any person acting on behalf of the prosecution, has knowingly made or may make in the future. If the prosecution believes that any police or investigative report contains irrelevant, sensitive information or information interrelated with other crimes or criminal activities and the disclosure of the contents of the police report may seriously impair law enforcement or jeopardize the investigation of those other crimes or activities, the court may prohibit or partially restrict the disclosure after an in camera review. If the court determines that the state has failed in its discovery obligations, it may prohibit the state from introducing into evidence any of the witnesses or material not disclosed under (b)(3). REGARDLESS of whether the defense elects to engage in discovery, (b)(4) requires the prosecution to disclose to the defendant any material information

within the state s possession or control that tends to negate the guilt of the defendant as to any offense charged. (Brady) It may be noted here that paragraph (c) allows the court to require a defendant to appear in a lineup, speak for identification by witnesses to an offense, be fingerprinted, pose for photographs not involving reenactment of the scene, try on articles of clothing, permit the taking of specimens of material under the defendant s fingernails, permit the taking of samples of the defendant s blood, hair and other materials of the defendant s body that involves no unreasonable intrusion thereof, provide specimens of the defendant s handwriting and submit to a reasonable physical or mental inspection of the defendant s body. These requirements are independent of the defendant s election to engage in discovery. Obtaining the above actions before the filing of the charging document, may require the issuance of a valid search warrant. After electing to engage in discovery, the defendant takes on certain obligations. Within 15 days after receipt by the defendant of the discovery exhibit furnished by the prosecution, the defense must furnish to the prosecutor a written list of the names and addresses of all witnesses whom the defendant expects to call as witnesses at the trial or hearing. It may be noted here that the obligation by the defense is different from that of the prosecution. That is, the prosecutor must give the names and addresses of all witnesses that may have information concerning the charge or charges. The defense on the other hand is only required to provide the names and addresses of witnesses whom the defendant expects to call at the trial or hearing. After the defense provides its witnesses to the state and the state thereafter attempts to subpoena that witness, the rules applicable to the taking of depositions shall apply. Within 15 days after receipt of the prosecutor s discovery exhibit the defendant must also serve a written discovery exhibit upon the prosecution which allows the prosecutor to inspect, copy, test, and photograph the statement of any person listed by the defense (other than the defendant), the reports or statements of experts made in connection with a particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons. This latest paragraph (d)(1)(b)(ii) has caused some controversy which has made its way to the second District Court of Appeal. In Kidder v. State, 3 the appellate court ruled that when the defense elects to engage in discovery, it must turn over to the state such reports or statements of its expert regardless of whether they intend to use or call that witness at hearing or trial. Reciprocal discovery also requires the defense to disclose to the prosecution any tangible papers or objects that the defendant intends to use in any hearing or trial. The filing of a protective order by the state automatically stays the times provided in the rule. If a protective order is granted, the defendant may, within two days thereafter, or at any time before the prosecutor furnishes the information or material that is the subject of the motion for protective order, withdraw the defendant s notice of discovery and not be required to furnish reciprocal discovery. Counsel is authorized by the rule to file a motion restricting disclosure where there is a substantial risk to any person of physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment resulting from such disclosure that outweighs any usefulness of the disclosure to either party. There is a catchall paragraph found in (d)(3)(f) which states that on a showing of materiality, the court may require such other discovery to the parties as justice may require.

There are certain matters that are not subject to disclosure by either side. Work product that might include legal research or records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of the prosecuting or defense attorney or members of their legal staffs. Lastly, the disclosure of confidential informants shall not be required unless the confidential informant is to be produced at a hearing or trial or a failure to disclose the informant s identity will infringe the constitutional rights of the defendant (please see Florida Defender magazine (Spring 2001) article entitled Confidential Informants: How Confidential are they? by this author for how to obtain disclosure). Subparagraph (h) deals with the taking of depositions. Since the purpose of this article is to discuss discovery obligations as well as Brady and Giglio responsibilities, a discussion of the deposition process will be eliminated with the exception of a comment concerning misdemeanor depositions. No deposition shall be taken in a case in which the defendant is charged only with a misdemeanor or a criminal traffic offense when all other discovery provided by Florida Rule of Criminal Procedure 3.220 has been complied with unless good cause can be shown to the trial court. However paragraph (h)(1)(d) states this prohibition against the taking of depositions shall not be applicable if following the furnishing of discovery by the defendant, the state then takes the statement of a listed defense witness (in a state attorney investigation under F.S. 27.04). The reader may wish to be reminded that no oath is required when taking a telephonic deposition (see (h)(8)). The rule specifically allows the statement to be used for impeachment purposes at trial nonetheless. A discussion about Brady and Giglio is in order now. STANDARD The standard for a Brady 4 violation is a demonstration that the defendant shows (1) favorable evidence, either exculpatory or impeaching (2) such evidence was willfully or inadvertently suppressed by the state, and (3) because the evidence was material, the defendant was prejudiced. 5 The United States Supreme Court further addressed the issues in Brady in 1995. 6 In deciding whether Brady violations will result in a new trial, the court must determine the totality of the violations in making the decision whether a new trial should be granted. That is, it is not each individual violation that is determinative, but rather all violations taken as a whole. The test to use whether a new trial should be granted is as follows: the defendant does not have to show by a preponderance of the evidence that disclosure of the suppressed evidence would have resulted in the defendant s acquittal. Instead, the reasonable probability test applies which is less than preponderance. A reasonable probability of a different result is one which undermines confidence in the outcome of a trial. The analysis does not include a process whereby after taking the Brady material into account there was enough untainted evidence left to convict. The suppressed evidence should be considered collectively, not item by item. The suppression by the prosecution of evidence favorable to the accused violates due process where the evidence is material either to guilt or to punishment, regardless of the good faith or bad faith of the prosecution. 7 The materiality inquiry under Brady is not just a matter of determining whether, after discounting inculpatory evidence in light of undisclosed evidence, the remaining evidence is sufficient to support the jury s conclusions. Rather, the question is whether favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine the confidence in the verdict. 8 On

occasion, prosecutors misconstrue their obligations under Brady. Their belief is that their obligation is solely to disclose exculpatory information (evidence that tends to negate the guilt of the accused) and that their obligation ends there. Brady specifically includes providing material impeaching information to the defense 9 and due process rights are violated irrespective of good or bad faith on the part of the prosecution if the prosecution suppresses material, favorable evidence. 10 When a violation does in fact occur, an evidentiary hearing is required in order to determine whether the violation would require a new trial. 11 PROSECUTORS OBLIGATIONS To comply with Brady, the individual prosecutor has a duty to learn of any favorable evidence and to disclose that evidence to the defense. This includes impeachment evidence, as noted before. 12 The Fifth and Fourteenth Amendments require a prosecutor to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial. 13 In determining what evidence or witnesses are known to the prosecution that require disclosure, the state is charged with constructive knowledge of information in the hands of law enforcement. 14 An assistant state attorney is held to knowing information held by other lawyers and agents working in the state attorney s office. 15 A prosecutor may also be found to have violated the cannons of ethics if he or she is in possession of information that is required to be turned over under Brady if it is intentionally withheld. 16 Case law has even held that the obligations under Brady exist even if a document is work product or exempt from the public records law. 17 One case dealt specifically with notes taken by the state attorney of witness interviews. 18 A new penalty phase was ordered in a capital case based upon the state s failure to disclose Brady evidence of state attorney notes of witness interviews which showed troopers and other witnesses uncertainty as to whether a shotgun or pistol was fired first, where the notes would have provided impeachment evidence to the trooper s testimony and could have corroborated defense witnesses at trial. The trooper s certainty was critical to the aggravator being upheld on direct appeal. Even in cases where the state does not personally possess the exculpatory evidence, a violation may occur if the evidence is in constructive possession of the state. One case has ruled that the state had constructive knowledge and constructive possession of a ballistics report which was contained in the records of the police department and not in the prosecutor s file. The state s failure to timely deliver the report to defense counsel constituted a discovery violation. 19 Even the fact that the defense knew that the state had performed certain analysis does not excuse the prosecutor s obligation to provide the results of that analysis favorable to the defense. Our state Supreme Court has ruled that the fact that the defendant knew the state had performed analysis of hair found on a murder victim did not excuse the state from disclosing results, which excluded the defendant as the source of the hairs. Once the state obtained the results of the hair analysis, it was required under Brady to disclose them to the defendant. 20 Furthermore, the state is required to disclose the existence of other suspects, especially where the other person had confessed to the murders, and at least one detail of that confession matched forensic evidence indicating that hairs found clutched in one victim s hand did not belong to the defendant. 21 Brady violations occur, requiring a new trial, in cases where the state fails to disclose evidence of a reward for testimony given to a witness who testifies at trial. 22 As well as where a prosecutor fails to disclose a witness statement that the defendant s accomplice used an alias that the defendant had contended actually shot the alleged the victim. The prosecutor then argued that

the individual did not exist. 23 And a Brady violation has been found to have occurred by the failure of the state to advise the defense about concessions made to a jailhouse informant in return for his testimony against the defendant. 24 VIOLATIONS Our U.S. Supreme Court has ruled that the prosecutor may hide, defendant must seek is not tenable in providing due process when considering Brady violations. 25 They have been found to have occurred by the courts in cases where the state fails to tell the defendant of an alibi witness they learn from the co-defendant. 26 It has also been found to be a violation under both Brady and the standards of conduct for the state bar for the prosecutor to fail to disclose a testifying codefendant s work release status when the prosecutor argued to the jury that the co-defendant was serving two consecutive life sentences. 27 And allegations in a post-conviction motion brought in connection with a guilty plea to DUI manslaughter that the state failed to reveal blood tests showing that the other driver had alcohol and drugs in her system, that it also failed to disclose a witness s statements to police that indicated the other driver was intoxicated, driving erratically, and talking on the cell phone at the time of the collision were factually sufficient to support a claimed Brady violation. 28 Disclosure is also required where information concerning a financial motive of a critical witness who testifies at trial is withheld. In one case, the state withheld a workman s compensation letter detailing a bouncer s receipt of approximately $24,000 in a prosecution for battery and disorderly conduct arising from an incident in which the defendant intervened in an altercation between his friend and the bouncer at a bar. The workers compensation statute precluded compensation if the injury was occasioned primarily by the willful intention of an employee to injure or kill another. The defense would have wanted to use the letter to demonstrate the bouncer s financial motive to paint the defendant and his friend as instigators of the initial fight. The court ruled that type of financial interest was a proper subject of impeachment in cross examination. 29 And a drug defendant was entitled to a new trial based on the state s failure to disclose a fingerprint technician s report concluding that a fingerprint found at drug lab was not the defendants. The report was material and favorable to the defendant. 30 Lastly, a prosecutor s failure to disclose a witness s statement that he saw a person resembling defendant s wife driving a vehicle similar to the murder victim s truck violated due process obligations under Brady, even though the witness s name was on a lead sheet given to the defendant. The witness s statement conflicted with the wife s denial that she had been in the truck and it could have supported a finding that the wife possessed the truck contrary to her testimony. NO VIOLATIONS In 2002, the United States Supreme Court handed down an opinion that ruled prosecutors were not required to provide exculpatory evidence to defendants who are considering entering into a plea bargain prior to trial. 31 In essence, if the prosecution has a problem with its case such as a witness who has failed to cooperate and will not come in to testify against a defendant, the state has no obligation to advise the defense. This also includes impeachment information which normally would be required to be disclosed if a defendant is proceeding to trial. The exception to this, according to the opinion, is factual innocence. If the state learns of information which exonerates the defendant and shows that he or she is factually innocent, then such information must be disclosed regardless of whether there is an offered plea bargain. This includes information

learned by the state wherein a critical witness, such as a victim, recants their testimony or changes it in a material way (what they have told the defense in deposition) but later tells the state that they were lying. In one state case, it was ruled that the state has an obligation under Brady to disclose to the defendant prior to trial that the child victim s trial testimony would differ from that which she gave at her deposition to the extent that she would effectively admit to perjury at the deposition. The case involved a prosecution for sexual battery on a child and the state learned of the victim s planned change in testimony during the week before trial. 32 There are other instances where the state holds no obligation to provide information which the defense believes falls under Brady. In one such case, the state failed to disclose psychiatric reports, jail records and notes from one of the state s expert witnesses and no violation was found because such information was either in the possession of the defense or could have been obtained from sources other than the state by the defense. 33 And in some cases, the courts have ruled that the information is just not material. For instance, our state Supreme Court has ruled that the fact that a prosecution witness had been booked as an accessory after the fact (for the crime) and released was not material and so the state was not required to disclose such information under Brady. 34 And when the information is in fact material but was equally accessible to the defense and the prosecution, there is no violation. 35 Although there are times when the dismissal of a charge is appropriate where the state destroys evidence material to a crime, the trial court abuses its discretion by dismissing a charge of attempted murder in the first degree of a law enforcement officer on the basis of a Brady violation for destruction of a shirt that the defendant was wearing at the time of the incident where the defendant could make the argument that the victim misidentified the perpetrator by utilizing a photograph of a shirt coupled with the officers testimony confirming that the photograph accurately depicted what the defendant was wearing on the night of the shooting and there was no reason why the actual shirt would have to be introduced to assert that argument. 36 Lastly, in 1995, the U.S. Supreme Court ruled that where a critical witness for the state underwent a polygraph examination and failed it with respect to certain vital facts, the prosecution was under no obligation to disclose such information to the defense because such evidence was not admissible at trial. 37 GIGLIO The tests for materiality under Brady and Giglio 38 are different. Under Brady, the nondisclosed evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different. Under Giglio, which is more defense friendly, the prosecutor s knowing use of perjured testimony, or the prosecutor s failure to correct what he subsequently learned was false testimony, is material if there is a reasonable probability that the false evidence may have affected the judgment of the jury. 39 To show that the prosecutor had a duty to correct testimony of a prosecution witness concealing bias, the defendant must show that the testimony was false, that the prosecutor knew the testimony was false, and that the statement was material. If there is no reasonable possibility that such false evidence may have affected the judgment of the jury, a new trial is not required. 40 Many Giglio violations occur when a testifying witness for the state conceals or fails to admit that he or she is receiving some favorable treatment in order to get them to testify against the defendant. To prove a Giglio violation arising out of a prosecution witness s testimony about their sentence in exchange for testimony, the defendant needs to show either that the witness s plea agreement

did not actually call for a particular sentence testified to or that the prosecutor misled the jury by stating that the witness would actually be sentenced to such term of imprisonment if he testified truthfully against the defendant and such was not true. 41 Once establishing a Giglio violation by showing (1) the testimony was false; (2) the prosecutor knew the testimony was false; and (3) the statement was material, the state bears the burden to show that the false evidence was not material. 42 This requires the state to prove that the presentation of false testimony was harmless beyond a reasonable doubt, or in other words, that there is no reasonable possibility that the error contributed to the conviction. 43 It should be noted here that because Giglio (and Brady) are constitutional obligations, evidence must be disclosed regardless of whether the defendant makes a request for exculpatory or impeachment evidence. 44 A violation of Giglio may result not only in the trial court ordering a new trial or sentencing hearing but also sanctions by the Florida Bar. Rule 4-3.3 (candor toward the tribunal) makes it clear. In (a)(4) it reads A lawyer shall not knowingly offer evidence that the lawyer knows to be false. A lawyer may not offer testimony that the lawyer knows to be false in the form of a narrative unless so ordered by the tribunal. If a lawyer, the lawyer s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence that the lawyer reasonably believes is false. CONCLUSION The obligation of any practicing attorney to appear in court and either prosecute or defend a citizen on trial requires the understanding of the rules of criminal procedure as well as the obligations contained under Brady and Giglio. Only when those rules and principles are followed can the public be assured that justice is truly being pursued uniformly and fairly. 1 373 U.S. 83 (1963) 2 405 U.S. 150 (1972) 3 Kidder v. State, 117 So.3d 1166 (Fla. 2 nd DCA 2013) 4 Brady v. Maryland, 373 U.S. 83 (1963) 5 Wyatt v. State, 78 So.3d 512 (Fla. 2011); Ponticelli v. State, 941 So.2d 1073 (Fla. 2006); Reaves v. State, 826 So.2d 934 (Fla. 2002); Foster v. State, 810 So.2d 910 (Fla. 2002); Downs v. State, 740 So.2d 506 (Fla. 1999); Buenoano v. State, 708 So.2d 941 (Fla. 1998); Robinson v. State, 707 So.2d 688 (Fla. 1998); Hunter v. State, 660 So.2d 244 (Fla. 1995); Hildwin v. Dugger, 654 So.2d 107 (Fla. 1995); Melendez v. State, 612 So.2d 1366 (Fla. 1992); Mendyk v. State, 592 So.2d 1076 (Fla. 1992) and Routly v. State, 590 So.2d 397 (Fla. 1991) 6 Kyles v. Whitley, 115 S.Ct. 1555 (1995) 7 State v. Thomas, 826 So.2d 1048 (Fla. 2 nd DCA 2002) 8 Cardona v. State, 826 So.2d 968 (Fla. 2002); State v. Lewis, 838 So.2d 1102 (Fla. 2002) and State v. Knight, 866 So.2d 1195 (Fla. 2003) 9 Brady v. Maryland, Supra and United States v. Biaggi, 675 F.Supp. 790 (SDNY 1987) 10 State v. Powers, 555 So.2d 888 (Fla. 2 nd DCA 1990) 11 Muhamad v. State, 603 So.2d 488 (Fla. 1992) 12 Mordenti v. State, 894 So.2d 161 (Fla. 2004)

13 Mungin v. State, 79 So.3d 726 (Fla. 2011) 14 Curry v. State, 1 So.3d 394 (Fla. 1 st DCA 2009) and Hurst v. State, 18 So.3d 975 (Fla. 2009) 15 Curry, Id. 16 Lewis v. State, 714 So.2d 1201 (Fla. 2 nd DCA 1998) 17 Young v. State, 739 So.2d 553 (Fla. 1999) 18 Young, Id. 19 Whites v. State, 730 So.2d 762 (Fla. 5 th DCA 1999) 20 Allen v. State, 854 So.2d 1255 (Fla. 2003) and Hoffman v. State, 800 So.2d 174 (Fla. 2001) 21 Hoffman, Id. 22 Glendenning v. State, 604 So.2d 839 (Fla. 2 nd DCA 1992) 23 Garcia v. State, 622 So.2d 1325 (Fla. 1993) 24 Kight v. Dugger, 574 So.2d 1066 (Fla. 1990) 25 Banks v. Dretke, 124 S.Ct. 1256 (2004) 26 Cipollina v. State, 501 So.2d 2 (Fla. 2 nd DCA 1986) 27 Craig v. State, 685 So.2d 1224 (Fla. 1996) 28 Taylor v. State, 848 So.2d 410 (Fla. 1 st DCA 2003) 29 Deren v. State, 15 So.3d 723 (Fla. 4 th DCA 2009) 30 Duarte v. State, 598 So.2d 270 (Fla. 3 rd DCA 1992) 31 United States v. Ruiz, 122 S.Ct. 2450 (Fla. 2002) and Weatherford v. Bursey, 429 U.S. 545 (1977) 32 Bell v. State, 930 So.2d 779 (Fla. 4 th DCA 2006) 33 Provanzano v. State, 616 So.2d 428 (Fla. 1993) 34 Porter v. State, 653 So.2d 374 (Fla. 1995) 35 Roberts v. State, 568 So.2d 1255 (Fla. 1990) 36 State v. Gilson, 56 So.3d 146 (Fla. 2 nd DCA 2011) 37 Wood v. Bartholomew, 116 S.Ct. 7 (Fla. 1995) 38 Giglio v. United States, 405 U.S. 150 (1972) 39 Ventura v. State, 794 So.2d 553 (Fla. 2001) 40 Craig v. State, Supra. 41 Ferrell v. State, 29 So.3d 959 (Fla. 2010) 42 Guzman v. State, 868 So.2d 498 (Fla. 2003); Spencer v. State, 842 So.2d 52 (Fla. 2003); Cooper v. State, 856 So.2d 969 (Fla. 2003) and Riechmann v. State, 966 So.2d 298 (Fla. 2007) 43 Ponticelli v. State, 941 So.2d 1073 (Fla. 2006) 44 Kyles v. Whitley, 514 U.S. 419 (1995) and Strickler v. Greene, 527 U.S. 263 (1999)