Anderson v. State

• Decision Date: 25 May 1995
• Docket Number: No. 84345,84345
• Citation: 655 So.2d 1118
• Parties: 20 Fla. L. Weekly S239 Steven Jerome ANDERSON, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 1118

655 So.2d 1118

20 Fla. L. Weekly S239

Steven Jerome ANDERSON, Petitioner, v. STATE of Florida, Respondent.

No. 84345.

Supreme Court of Florida.

May 25, 1995.

Nancy A. Daniels, Public Defender and Phil Patterson, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for Petitioner.

Robert A. Butterworth, Atty. Gen., James W. Rogers, Tallahassee Bureau Chief, Crim. Appeals and Amelia L. Beisner, Asst. Atty. Gen., Tallahassee, for respondent.

GRIMES, Chief Justice.

We have for review Anderson v. State, 642 So.2d 109 (Fla. 1st DCA 1994), in which the First District Court of Appeal certified the following question to be of great public importance:

CAN HEARSAY TESTIMONY RELATING TO STATEMENTS MADE BY AN INCOMPETENT WITNESS CONSTITUTE LEGALLY SUFFICIENT PROOF AS THE SOLE EVIDENCE OF THE COMMISSION OF A CRIMINAL OFFENSE WHERE THE TRIAL COURT HAS MADE NO FINDING AS TO THE RELIABILITY OF THE HEARSAY TESTIMONY?

Id. at 111. We have jurisdiction. Art. V, Sec. 3(b)(4), Fla.Const.

Steven Jerome Anderson was charged with lewd and lascivious assault upon a child. Prior to trial, the State gave notice of its intent to introduce hearsay statements under section 90.803(23), Florida Statutes (1991). ¹ At the trial, Shannon DeVita, the child's soon-to-be stepmother, and Becky Hart, a police officer, both testified that the seven-year-old child told them that while she was on a fishing pier across from her house during daylight hours, Anderson had approached her and touched her with his penis. Anderson did not object to the introduction of the statements, and there was no hearing as contemplated by section 90.803(23). The child was also called as a witness but once on the stand, she could not give consistent answers as to whether she knew what it meant to tell the truth. Additionally, the child replied affirmatively to a question as to whether she had changed her answer because she knew the prosecutor wanted her to answer the other way. The trial court ruled that the child was not competent to testify. Anderson's motion for judgment of acquittal was denied and the jury returned a verdict of guilty. Anderson was sentenced to prison for twenty-two years.

On appeal, Anderson argued that his motion should have been granted because his conviction was based solely upon hearsay testimony that was never determined to be reliable and that was uncorroborated. The district court of appeal concluded that there was no corroborative evidence of the offense and recognized that the trial court made no finding as to the reliability of the hearsay testimony. However, because of the absence of objection to the testimony, it affirmed the trial court's denial of the motion but certified the foregoing question.

This case has the potential of illustrating the old adage that "hard cases make bad law." On the one hand there is a general rule that where no objections are made to the admission of hearsay evidence, the evidence is admitted as if it were by consent and the issue is procedurally barred from appellate review. Wyatt v. State, 641 So.2d 1336 (Fla.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1983, 131 L.Ed.2d 870 (1995); Western Union Tel. Co. v. Merritt, 55 Fla. 462, 46 So. 1024 (1908). In addition, a trial court's failure to make sufficient findings under section 90.803(23) in and of itself does not constitute fundamental error. State v. Townsend, 635 So.2d 949 (Fla.1994). On the other hand, had an objection been made and a hearing been held, there is a good likelihood that the hearsay statements could not have been admitted because of the lack of corroborative evidence required under section 90.803(23)(a)2.b. In addition, we reject the State's argument that Anderson's conduct when confronted by the accusations provided corroborating evidence to support his conviction. Further confounding the problem is the possibility that the child's statement to DeVita might have been admissible as an excited utterance except that it was not presented as such because no objection was made. Under these circumstances, we are reluctant to create any precedent and have determined that our holding should be specifically limited to the facts of this case.

Although involving completely different facts, we find the case of State v. Moore, 485 So.2d 1279 (Fla.1986), instructive. In that case, the State presented testimony from two eyewitnesses who, prior to trial, had testified before a grand jury that Moore had committed a murder. When the witnesses recanted at trial and testified that they had lied before the grand jury because of police coercion, the State introduced their prior inconsistent grand jury testimony of Moore's guilt. There was no other evidence implicating Moore in the murder. In reversing the conviction, we held "that the risk of convicting an innocent accused is simply too great when the evidence is based entirely on prior inconsistent statements." Id. at 1281.

We are...