Chambers v. State

• Decision Date: 19 March 1987
• Docket Number: No. BJ-346,BJ-346
• Citation: 504 So.2d 476,12 Fla. L. Weekly 821
• Parties: 12 Fla. L. Weekly 821 George Edward CHAMBERS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 476

504 So.2d 476

12 Fla. L. Weekly 821

George Edward CHAMBERS, Appellant, v. STATE of Florida, Appellee.

No. BJ-346.

District Court of Appeal of Florida,

First District.

March 19, 1987.

Michael E. Allen, Public Defender and David A. Davis, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen. and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.

WIGGINTON, Judge.

A jury found Chambers guilty of two counts of capital sexual battery. Due to the fact that the victims were approximately eight and five years of age and were his stepsons, a motion for order to present the victims' testimony at trial by video equipment was granted. Accordingly, the videotaped testimony of the two alleged child victims was made, while appellant viewed the proceedings from behind a two-way mirror. Subsequent to the videotaping, and just prior to trial, both children recanted their testimony that appellant had sexually abused them. Nevertheless, despite an initial pretrial order prohibiting the State's use of the videotape, the State was later granted permission by the court to show the videotape at trial. Both children also testified at trial.

During its deliberations, the jury requested and was granted permission to have reread to them in open court one of the children's trial testimony, as well as have replayed for them in the jury room the videotaped testimony. Appellant did not enter an objection to the replaying of the videotape during the jury's deliberation or offer alternative suggestions, such as having the transcription of the audio portion of the videotape reread, or having the tape replayed in open court under the direct supervision of the judge. An objection was raised for the first time in a motion for new trial, which was denied. On appeal, appellant raises three points challenging the court's allowing the videotaped testimony to be reviewed during the jury's deliberations, appellant's limited participation in the actual videotaping of the testimony, and the court's denial of appellant's motion for judgment of acquittal. We affirm.

As to appellant's first point, we decline to address the issue of the propriety of the trial court's giving the jury the videotaped testimony of the children to view during their deliberations. Section 92.53, Florida Statutes (1985), previously section 90.90, specifically allowed for the videotaping of the testimony of the instant case. ¹ Subsection (6) characterizes such testimony as admissible evidence. ² The fundamental question, though, arises when a jury is granted permission to review the videotape, presumably under the auspices of Florida Rule of Criminal Procedure 3.400(d). ³ Given the unique nature of videotaped testimony, by allowing it to be replayed, the jury is granted an additional occasion to observe the demeanor of the witnesses during its deliberation not available when testimony is simply reread to it. Even so, defense counsel made no objection at the time of the jury's request, and offered no alternative suggestions against which this Court could compare the trial court's exercise of discretion. Lewis v. State, 398 So.2d 432, 437 (Fla.1981). Thus, it is impossible for this Court to determine whether an abuse of judicial discretion occurred, and, given this posture, we decline to hold such action to be per se prejudicial and reversible error.

As to appellant's second point, he argues that by limiting his presence at the videotaped hearing to viewing the witnesses behind a two-way mirror, pursuant to section 92.53(4), the court relied on the wrong statute, since appellant's crime was committed prior to 1985, and that the court unconstitutionally abridged his Sixth Amendment right to confrontation. He also argues that section 90.90 violates article V, section 2 of the Florida Constitution. As to which statute should have applied, this issue has been waived since no objection was made below, and both the prosecutor and defense counsel discussed the State's motion in terms of the procedure set forth in section 92.53. Subsection (4) specifically provides that within the court's discretion, the defendant may be required to "view the testimony from outside the presence of the child by means of a two-way mirror or other similar method that will ensure that the defendant can observe and hear the testimony of the child in person, but that the child cannot hear or see the defendant." ⁴

We do not consider that such limitation was an unconstitutional abridgment of appellant's Sixth Amendment right to confrontation. That right is not absolute, "and competing interests, if closely examined, may warrant dispensing with confrontation at trial." Ohio v. Roberts, 448 U.S. 56, 63-64, 100 S.Ct. 2531, 2537-2538, 65 L.Ed. 597 (1980); Mattox v. U.S., 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1985) (noted that the Sixth Amendment's right of confrontation would occasionally give way to public policy considerations and the necessities of the case).

Weighing the competing interests in the balance, we hold that the defendant's right to confront his accusers must give way to the State's interest in sparing child victims of sexual crimes the further trauma of in-court testimony. Cf. State v. Tafoya, 105 N.M. 117, 729 P.2d 1371 (App.), cert. denied, 105 N.M. 94, 728 P.2d 845 (1986); People v. Algarin, 129 Misc.2d 1016, 498 N.Y.S.2d 977 (Sup.Ct.1986). Even in United States v. Benfield, 593 F.2d 815 (8th Cir.1979), relied on by appellant to support his argument that he was entitled to a face-to-face confrontation, the court recognized that certain circumstances could be "so heinous as to excuse the victim from facing [the defendant] while testifying." Id., at 821.

Although "the Confrontation Clause reflects a preference for face-to-face confrontation at trial," Ohio v. Roberts, 448 U.S. 63-64, 100 S.Ct. 2537-2538, the "main and essential" purpose of the clause is to secure to the accused the opportunity of crossexamination. Delaware v. Van Arsdall, 475 U.S. 673, ----, 106 S.Ct. 1431, 1440, 89 L.Ed.2d 674, 683 (1986). In the instant case, not only was appellant afforded the opportunity to cross-examine the children through his defense counsel, but the children testified at trial in appellant's presence. Consequently, appellant was in no way denied his Sixth Amendment right to confrontation in the instant case. See California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) (a court's admitting a declarant's out-of-court statements in situation where declarant is available to testify does not violate confrontation clause); see also State v. Tafoya, supra (even though defendant was in control booth, he was "present," within that term's ordinary meaning, as required by statute); People v. Algarin, supra (defendant not denied...