Conner v. State

• Decision Date: 16 September 1999
• Docket Number: No. 92,835.,92,835.
• Citation: 748 So.2d 950
• Parties: David R. CONNER, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

748 So.2d 950

David R. CONNER, Petitioner, v. STATE of Florida, Respondent.

No. 92,835.

Supreme Court of Florida.

September 16, 1999.

Rehearing Denied January 27, 2000.

James Marion Moorman, Public Defender, Richard P. Albertine, Jr., Clearwater, Florida, and Diane Buerger, Bartow, Florida, Assistant Public Defenders, Tenth Judicial Circuit, Clearwater, Florida, for petitioner.

Robert A. Butterworth, Attorney General, Robert J. Krauss, Senior Assistant Attorney General, Chief of Criminal Law, and Susan D. Dunlevy, Assistant Attorney General, Tampa, Florida, for respondent.

PARIENTE, J.

We have for review Conner v. State, 709 So.2d 170 (Fla. 2d DCA 1998), which expressly declares constitutional the hearsay exception for elderly persons or disabled adults, section 90.803(24), Florida Statutes (1995). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

The State charged Conner with armed burglary of a dwelling, armed robbery, and armed kidnaping. The victim, Mr. Ford, was an 84-year-old man who lived alone. Mr. Ford suffered from poor eyesight, some hearing loss, and occasional memory lapses. A few hours after the incident, Mr. Ford provided an initial statement to the police and then two weeks later provided a sworn statement to the police.

Mr. Ford died approximately three months after the crime and two months after the State filed an information against Conner. Despite Mr. Ford's advanced age, the State did not attempt to perpetuate Mr. Ford's testimony pursuant to Florida Rule of Criminal Procedure 3.190(j) prior to his death. Before trial, however, the State provided Conner with notice that it intended to introduce as evidence the hearsay statements Mr. Ford made to the police pursuant to section 90.803(24),¹ pertaining to hearsay statements of elderly adults.

At a pretrial hearing, Conner attacked the elderly person hearsay exception as facially violative of Conner's right to confront witnesses and to due process under the Florida and United States Constitutions. See U.S. Const. Amends. V, VI; art. I, §§ 9, 16, Fla. Const. The trial court denied the motion and found that Mr. Ford met the definition of "elderly person" found in section 825.101(6),² Florida Statutes (1995), and that evidence corroborated his statements. Because the police officers were not available to testify at the hearing, the trial court ruled that before admitting the statements at trial the State would have to establish that the circumstances surrounding the statements guaranteed their reliability. Conner then pleaded nolo contendere, specifically preserving the right to appeal the issue of the constitutionality of the elderly hearsay exception. The parties stipulated that this issue was dispositive as to the armed kidnaping and armed robbery counts.³

On appeal, the Second District noted that the hearsay exception for elderly adults closely tracked the language of the hearsay exception for child victims of abuse or neglect, section 90.803(23), Florida Statutes (1995).⁴ See Conner, 709 So.2d at 171-72. Using the same analysis applied by this Court in State v. Townsend, 635 So.2d 949, 956-58 (Fla.1994), and Perez v. State, 536 So.2d 206, 207-10 (Fla. 1988), to uphold the constitutionality of the hearsay exception for child victims of abuse or neglect, the Second District found the elderly hearsay exception to be facially constitutional. See Conner, 709 So.2d at 171-72. The district court stated that it could not rule on the constitutionality of the hearsay exception as applied, because the trial court had yet made full findings concerning the admissibility of the hearsay. Id. at 172.

CONFRONTATION CLAUSE ANALYSIS

The issue in this case is whether subsection 90.803(24) violates the defendant's constitutional right of confrontation. We conclude that it does. The Sixth Amendment of the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." This right to confrontation is applicable to the states though the Fourteenth Amendment, see Idaho v. Wright, 497 U.S. 805, 813, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), and is echoed in article I, section 16(a) of the Florida Constitution, which states: "In all criminal prosecutions the accused ... shall have the right ... to confront at trial adverse witnesses...."

The defendant's right to confront witnesses has long been identified as among the minimum essentials of a fair trial. See Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). We have previously observed that the right of confrontation "has been a cornerstone of Western society for a number of centuries." Harrell v. State, 709 So.2d 1364, 1367 (Fla.1998) (citing Coy v. Iowa, 487 U.S. 1012, 1015-16, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988)),cert. denied, 525 U.S. 903, 119 S.Ct. 236, 142 L.Ed.2d 194 (1998). Over one hundred years ago, the United States Supreme Court explained that:

The primary object of the [Confrontation Clause] was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.

Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 39 L.Ed. 409 (1895).

Affording defendants a right to confront their accusers thus acts as a safeguard of the reliability of criminal proceedings. See Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). Through confrontation and cross-examination, defendants have the means of testing the accuracy of witnesses' testimony. See California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). In fact, the right of confrontation serves a threefold purpose because it:

(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"; (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.

Id. (footnote omitted). In Harrell, we recently affirmed these important aspects of the constitutional right of confrontation. 709 So.2d at 1368.

The denial of confrontation "calls into question the ultimate `integrity of the fact-finding process.'" Ohio v. Roberts, 448 U.S. 56, 64, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (quoting Chambers, 410 U.S. at 295, 93 S.Ct. 1038). As stated in Chambers:

The right of cross-examination is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation and helps assure the "accuracy of the truth-determining process." It is indeed, "an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal." Of course, the right to confront and cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. But its denial or significant diminution calls into question the ultimate "`integrity of the fact-finding process'" and requires that the competing interest be closely examined.

410 U.S. at 295, 93 S.Ct. 1038 (emphasis supplied) (citations omitted).

We have repeatedly recognized the critical importance of a defendant's "constitutional right to confront and cross-examine witnesses against him." Brown v. State, 471 So.2d 6, 7 (Fla.1985). Accordingly, we have even found that the State's failure to comply with the requirement to notify the defendant before taking a deposition to perpetuate testimony pursuant to rule 3.190(j) constituted fundamental error. See id.; Brown v. State, 721 So.2d 814 (Fla. 4th DCA 1998); see also State v. Clark, 614 So.2d 453 (Fla.1992) (finding a Confrontation Clause violation constituted harmful error where a discovery deposition taken outside the presence of the defendant was admitted as substantive evidence).

The United States Supreme Court has rejected a literal interpretation of the Confrontation Clause, which would prevent any hearsay testimony from being introduced in a criminal trial. See, e.g.,Wright, 497 U.S. at 813-14, 110 S.Ct. 3139; Roberts, 448 U.S. at 63-65, 100 S.Ct. 2531. Instead, the Court "has recognized that competing interests, if `closely examined,' may warrant dispensing with confrontation at trial." Roberts, 448 U.S. at 64, 100 S.Ct. 2531 (quoting Chambers, 410 U.S. at 295, 93 S.Ct. 1038). This is because "general rules of law of this kind ... must occasionally give way to considerations of public policy and the necessities of the case." Roberts, 448 U.S. at 64, 100 S.Ct. 2531 (quoting Mattox, 156 U.S. at 243, 15 S.Ct. 337).

However, an essential requirement for the admissibility of hearsay under the Confrontation Clause is that it bears such "indicia of reliability" that "adversarial testing would add little to its reliability."⁵ Wright, 497 U.S. at 821, 110 S.Ct. 3139; see Roberts, 448 U.S. at 65, 100 S.Ct. 2531. If, on the other hand, hearsay is admitted under a "firmly rooted" exception, then "[r]eliability can be inferred without more." Roberts, 448 U.S. at 66, 100 S.Ct. 2531.

"Firmly rooted" hearsay exceptions include exceptions such as excited utterances, dying declarations, and statements made to obtain a medical diagnosis. See White v. Illinois, 502 U.S. 346, 354-56, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992). The United States Supreme Court has...