Feller v. State

• Decision Date: 21 April 1994
• Docket Number: No. 81771,81771
• Parties: 19 Fla. L. Weekly S196 Joseph FELLER, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 911

637 So.2d 911

19 Fla. L. Weekly S196

Joseph FELLER, Petitioner, v. STATE of Florida, Respondent.

No. 81771 Supreme Court of Florida.

April 21, 1994.

Rehearing Denied June 21, 1994.

Nancy A. Daniels, Public Defender, and David P. Gauldin, Asst. Public Defender, Tallahassee, for petitioner.

Robert A. Butterworth, Atty. Gen., James W. Rogers, Bureau Chief-Criminal Appeal, and Carolyn J. Mosley, Asst. Atty. Gen., Tallahassee, for respondent.

HARDING, Justice.

We have for review Feller v. State, 617 So.2d 1091 (Fla. 1st DCA 1993), in which the First District Court of Appeal certified two questions as being of great public importance:

DOES A TRIAL COURT COMMIT FUNDAMENTAL ERROR BY FAILING TO MAKE THE FINDINGS REQUIRED BY SECTION 92.53(1), FLORIDA STATUTES

(1989), PRIOR TO ALLOWING A CHILD WITNESS TO TESTIFY BY MEANS OF VIDEOTAPE?

Id. at 1094-95.

IF THE FAILURE TO MAKE THE FINDINGS REQUIRED BY SECTION 92.53(1), FLORIDA STATUTES (1989), IS FUNDAMENTAL ERROR, MAY THE REVIEWING COURT, AS AN ALTERNATIVE TO ORDERING A NEW TRIAL, REMAND TO THE TRIAL COURT FOR A DETERMINATION OF WHETHER THE RECORD BEFORE THE TRIAL COURT AT THE TIME OF ITS RULING SUPPORTED THE FINDINGS REQUIRED BY THE STATUTE?

Id. at 1095. We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution. We answer the first question in the negative. Based upon our answer to the first question, we need not reach the second question. We reverse Feller's conviction on other grounds.

Joseph Feller was charged with three counts of sexual battery, involving penial and digital penetration of the vagina, on a child less than twelve years old. Prior to trial, the State filed a motion to allow the videotaped testimony of the child victim, as opposed to live courtroom testimony. During a pretrial evidentiary hearing relating to this motion, the State presented the testimony of a clinical psychologist that the victim would suffer at least moderate emotional harm if she were required to testify in open court in the presence of Feller, who is her stepfather. Defense counsel objected on the basis that the videotaped testimony "violates the Sixth Amendment Right to confrontation ... the privilege of face-to-face confrontation." The state attorney responded that this Court had upheld section 92.53 as constitutional and noted the statutory requirement that specific findings be made by the court. ¹ Defense counsel responded by asking "the court to allow Mr. Feller face-to-face contact with [the victim] during her testimony," without any specific reference to the statute. Defense counsel raised the same confrontation-right objection when the child's testimony was videotaped two months later. However, counsel failed to object when the videotape testimony was actually admitted at trial two months after the videotaping. After the verdict, defense counsel moved for a new trial claiming that the trial court "erred in its pretrial ruling allowing [the victim] to testify by means of video tape." The trial court denied the motion for new trial.

On appeal, the district court determined that Feller did not object to any lack of specificity in the judge's findings made under section 92.53. Thus, the court ruled that Feller "has not preserved [the] right to argue on appeal that [he] is entitled to a new trial by virtue of the trial court's failure to make the findings with the specificity required by section 92.53." 617 So.2d at 1094. However, the court certified the questions of whether failure to make the specific findings constitutes fundamental error and what is the proper remedy for failure to make the findings.

This Court recently addressed the same question of fundamental error as it relates to the specific findings required by section 92.54(5), Florida Statutes. ² Hopkins v. State, 632 So.2d 1372 (Fla.1994). In Hopkins, this Court held that failure to make the specific findings is not fundamental error. Id. We find that the reasoning of Hopkins applies equally in this case because the right of confrontation is implicated whether a witness testifies via closed circuit television as in Hopkins or is permitted to give videotaped testimony as in this case. For the reasons expressed in Hopkins, we find that failure to make the findings required by section 92.53 does not constitute fundamental error. Thus, we answer the first certified question in the negative.

However, we do agree with the district court's conclusion that Feller failed to preserve this issue for appellate review. As we explained in Hopkins, an objection based on lack of confrontation necessarily involves objection to the factual findings which form the basis for the court's determination that a witness may testify outside the defendant's presence. Hopkins, 632 So.2d at 1374-77. However, unlike the defendant in Hopkins who renewed his objection at the time that the child testified via closed-circuit television, Feller failed to renew his confrontation clause objection when the child's videotaped testimony was actually offered at trial. Cf. Phillips v. State, 476 So.2d 194, 196 (Fla.1985) (finding that even when prior motion in limine has been denied, failure to object at time collateral crime evidence is introduced waives the issue for appellate review).

Feller raises several other issues for review by this Court. Having jurisdiction on the basis of the certified questions, we have jurisdiction over all issues. Jacobson v. State, 476 So.2d 1282 (Fla.1985); Savoie v. State, 422 So.2d 308 (Fla.1982). We dispose of this case on a ground other than the certified questions, but address the videotape testimony issue to offer guidance on retrial.

Had this issue been preserved, we would reach the same conclusion as in Hopkins, namely that the trial court failed to make the specific findings required by the statute. 632 So.2d at 1376. In granting the state's motion to videotape the child's testimony in this case, the trial court stated:

I think I'm satisfied that [the psychologist's] testimony comports to the statute, that there is at least a substantial likelihood of--I believe it says even moderate [harm], is sufficient to allow the videotaping of the child; and therefore, I'm going to grant the state's motion to videotape the testimony of this child.

Although this commentary complied with the requirement that the court make a finding of substantial likelihood that the child would suffer moderate harm, it failed to satisfy the requirement that the court make specific findings of fact on the record to support the ruling. Failure to make the case-specific findings mandated by section 92.53 constitutes an independent ground for reversal. Leggett v. State, 565 So.2d 315, 318 (Fla.1990) (citing with approval Jaggers v. State, 536 So.2d 321 (Fla. 2d DCA 1988)).

As Judge Zehmer pointed out in his dissent below, although the testimony of the psychologist is arguably sufficient to support the trial court's conclusion that the child would suffer moderate emotional harm if required to testify in court in Feller's presence, the court "made no specific findings of the underlying facts that support this ultimate conclusion." Feller, 617 So.2d at 1098 (Zehmer, J., dissenting). Judge Zehmer also noted that during cross-examination defense counsel demonstrated contradictions and conflicts regarding some of the psychologist's factual assertions. Id. A reviewing court cannot determine which of these facts the trial court relied upon in reaching the ultimate conclusion of harm to the child unless the trial court states on the record its findings as to pertinent evidentiary facts. Without such case-specific findings, a reviewing court cannot determine whether the judge made an individualized determination of necessity as to the child's videotaped testimony. As this Court explained in Leggett, if we were to look behind the judge's words and predicate our decision solely upon the sufficiency of the evidence, "we would not only be ignoring the clear and unequivocal directive of subsection 92.53(7), but also we would be construing the statute in a manner that could render it unconstitutional under Coy [v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988) ]." 565 So.2d at 318.

Feller raises three other issues that the district court summarily affirmed without discussion. Feller, 617 So.2d at 1092. Feller claims that the trial court erred in admitting the following evidence: 1) opinion testimony of the psychologist who interviewed the victim; 2) statements made by the victim to police officers and child abuse investigators; and 3) collateral crimes evidence. We find that reversal is required based upon two of these issues.

Over defense objection, psychologist Dr. Cheryl Harris twice stated her belief that the victim was telling the truth and had not fabricated her account of sexual abuse. Defense counsel originally objected when the state attorney asked Dr. Harris whether she found any indications of fabrication during her interviews with the victim. During a side-bar conference, the court determined that Dr. Harris could state her opinion that the victim was not fabricating, but could not address the truth of specific facts. When the state attorney resumed questioning, Dr. Harris stated, "[The victim's] concerned about being believed. I mean, she has, you know, on a couple of different occasions pleaded with me to believe her. I said, and you know, I do." Over defense objection, Dr. Harris responded to another question from the state attorney by again stating, "I believe her, I think that she--she's indicating that she has been sexually abused, and I think that she has been." An expert may not directly vouch for the truthfulness or credibility of a witness. State v. Townsend, 635 So.2d 949 (Fla.1994); Tingle v. State, 536 So.2d 202 (Fla.1988). As this Court explained in Tingle, " 'some expert testimony may be helpful, but putting an impressively qualified expert's stamp of...