Cann v. State, 4D05-4710.

• Decision Date: 13 June 2007
• Docket Number: No. 4D05-4710.,4D05-4710.
• Citation: 958 So.2d 545
• Parties: Alonzo CANN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

958 So.2d 545

Alonzo CANN, Appellant, v. STATE of Florida, Appellee.

No. 4D05-4710.

District Court of Appeal of Florida, Fourth District.

June 13, 2007.

Rehearing Denied July 12, 2007.

Jack A. Fleischman of Fleischman & Fleischman, P.A., West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

Appellant was tried and convicted of sexual battery on a person less than twelve years of age and lewd or lascivious molestation. In this appeal he contends that the court erred by denying his request to permit the child to testify in the presence of the jury; in allowing Williams¹ rule evidence which shows only propensity to commit a sex crime against a child, specifically challenging the constitutionality of the statute allowing such evidence; by denying his right to introduce evidence through cross-examination; and by denying his motion for mistrial for improper prosecutorial argument. We affirm on all issues.

Cann's wife was walking to her bedroom when she heard a noise that she recognized as one Cann would make when the two of them engaged in intercourse. She opened the door to see her seven-year-old granddaughter, C.C., lying on her back on the bed with Cann, pants down around his ankles, bent over the child, his body moving up and down. C.C.'s pants were also pulled down. Their groin areas were touching. The wife screamed, and Cann pleaded, "It's not what you think."

The wife called the police, and they interviewed C.C. Cann was charged, and the case proceeded to trial. During trial the child testified on closed circuit television to the facts of the incident in graphic detail and admitted that this had occurred on more than one occasion. She also testified that he would make her touch his penis, including with her lips, and he would make her look at pornographic pictures of girls and boys doing the same thing.

The child's aunt, now in her twenties, testified that when she was about the same age as C.C., Cann attempted to have sexual intercourse with her, although she never told her mother about it. This evidence was introduced as Williams rule evidence. Over objection as to relevance, the aunt also testified that Cann grabbed her breasts and tried to untie her bathing suits. Again over objection, the state introduced into evidence a letter the aunt had written to her mother when the aunt was fourteen, describing the abuse by Cann. The aunt also testified that Cann told her that he had received the letter but had not given it to the mother because of her ill health at the time.

As part of his defense, Cann presented expert witnesses who attempted to discredit the wife's testimony due to her depression and psychological issues. Cann called one expert to criticize the method and manner in which C.C. was interviewed to cast doubt on C.C.'s testimony. The state offered rebuttal expert testimony to Cann's defense. The jury convicted Cann of both charges, and the court sentenced him to life in prison for the sexual battery and a concurrent sentence of thirty years for lewd and lascivious molestation. He appeals.

Prior to trial, the court determined that C.C.'s testimony could be presented by closed circuit television to avoid trauma to C.C. from having to testify in front of Cann and in the jury setting. The trial court received a report indicating that the child would suffer emotional trauma should she be required to testify in court. At trial, Cann requested that C.C. be required to testify in the presence of the jury instead of by closed circuit television. He offered that he would exit the courtroom and observe her testimony through closed circuit television. He wanted the jury to observe her demeanor while testifying. The court denied the motion, agreeing with the state that the jury would still be able to observe her demeanor over the television.

Section 92.54, Florida Statutes, authorizes the court to allow a child to testify outside of the courtroom by closed circuit television if the court determines that testifying in court would result in at least moderate emotional or mental harm to the child. Through this procedure, the jury is permitted to see the child witness while she or he testifies. In Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), the Court determined that such a procedure did not violate the Confrontation Clause. However, in Craig the defendant objected to the procedure because he would not be face-to-face with the child witness.

Here, Cann does not assert a right to face-to-face confrontation but instead asserts the right to have the witness testify in the jury's presence. As the Court explained in Craig,

[T]he right guaranteed by the Confrontation Clause includes not only a "personal examination," [Mattox v. United States, 156 U.S. 237, 242, 15 S.Ct. 337, 39 L.Ed. 409 (1895)], but also "(1) insures that the witness will give his statements under oath-thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the `greatest legal engine ever invented for the discovery of truth'; [and] (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility." [California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970)].

The combined effect of these elements of confrontation — physical presence, oath, cross-examination, and observation of demeanor by the trier of fact — serves the purposes of the Confrontation Clause by ensuring that evidence admitted against an accused is reliable and subject to the rigorous adversarial testing that is the norm of Anglo-American criminal proceedings.

Id. at 845-46, 110 S.Ct. 3157. However, in approving the Maryland statute which permitted the child to testify over closed circuit television, the court found that Maryland preserved all elements of the confrontation right except the defendant's right to face-to-face confrontation:

Maryland's statutory procedure, when invoked, prevents a child witness from seeing the defendant as he or she testifies against the defendant at trial. We find it significant, however, that Maryland's procedure preserves all of the other elements of the confrontation right: The child witness must be competent to testify and must testify under oath; the defendant retains full opportunity for contemporaneous cross-examination; and the judge, jury, and defendant are able to view (albeit by video monitor) the demeanor (and body) of the witness as he or she testifies. Although we are mindful of the many subtle effects face-to-face confrontation may have on an adversary criminal proceeding, the presence of these other elements of confrontation-oath, cross-examination, and observation of the witness' demeanor-adequately ensures that the testimony is both reliable and subject to rigorous adversarial testing in a manner functionally equivalent to that accorded live, in-person testimony. These safeguards of reliability and adversariness...