Delgado-Santos v. State

• Decision Date: 11 June 1985
• Docket Number: A,DELGADO-SANTO,No. 83-2031,83-2031
• Parties: 10 Fla. L. Weekly 1426 Marioppellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 74

471 So.2d 74

10 Fla. L. Weekly 1426

Mario DELGADO-SANTOS, Appellant, v. The STATE of Florida, Appellee.

No. 83-2031.

District Court of Appeal of Florida,

Third District.

June 11, 1985.

Rehearing Denied July 8, 1985.

Bennett H. Brummer, Public Defender and John H. Lipinski and Arthur W. Carter, Sp. Asst. Public Defenders, for appellant.

Jim Smith, Atty. Gen. and Charles H. Fahlbusch, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and HUBBART and FERGUSON, JJ.

SCHWARTZ, Chief Judge.

This appeal is from convictions, after a jury trial, of first degree murder and armed robbery. The controlling question presented is whether a police interrogation is a "proceeding" under section 90.801(2)(a), Florida Statutes (1981), so as to permit the admission as substantive evidence of a trial witness's prior inconsistent statement made during such questioning. On the conclusion that it is not, we reverse the judgment below for a new trial.

The appellant Delgado-Santos and one Pizzaro-Ortiz were accused of the stabbing death of the co-owner of a service station in Homestead, Florida in the course of a holdup on July 29, 1981; the murder weapon was later found in a room they shared in a nearby rooming house. At about 6:00 p.m. on August 12, 1981, Ortiz, who was then sixteen years old, was taken into custody--although supposedly not "under arrest"--and was transported in handcuffs first to one and then to another police station for "questioning." ¹ Sometime after midnight, while confined to a holding cell, Ortiz made the statement which is the focal point of this case. At the conclusion of a long process of "pre-statement interrogation" and after being duly given his Miranda rights, he stated under oath, through an interpreter, that he had participated in the holdup only at the instigation of Delgado-Santos who had both planned and suggested it and who had stabbed the victim because he reached for something after being told to keep still. The statement was transcribed and read to Ortiz who initialed each page and signed at the conclusion. Only after the statement was taken, Ortiz was formally arrested and transported to Youth Hall. ²

Ortiz and Santos were separately indicted for first degree murder and armed robbery. During the pendency of these cases, Ortiz, without conditions with respect to giving testimony in the Santos case, was permitted to plead guilty to armed robbery and a reduced charge of second degree murder and was given an unrestricted life sentence. ³

Before the commencement of the Santos trial which followed and with which we are now concerned, Ortiz then indicated that he would not testify against Santos. For this reason, the state sought and was granted leave to call Ortiz as a court's witness subject to cross-examination by both sides. ⁴ Upon initial questioning by the state, Ortiz stated that he had committed the holdup and murder entirely on his own and that Santos was home sleeping at the time and had nothing to do with it. When he was impeached, without objection, with the police statement, Ortiz acknowledged that he had made it, but said he had done so only to avoid the electric chair and that, insofar as Santos was concerned, it "was a lie." The state then offered the statement itself as direct evidence of Santos's guilt. Overruling the defendant's specific objection that it could not be received for that purpose, the trial court admitted it into evidence. This was reversible error.

The question before us is governed by section 90.801(2)(a), Florida Statutes (1981). For the first time in Florida, that provision permits, under rigidly circumscribed conditions, the use of prior inconsistent statements like Ortiz's, which are clearly hearsay, as substantive evidence, rather than, as before, solely for impeachment purposes. Moore v. State, 452 So.2d 559 (Fla.1984), approving, 424 So.2d 920 (Fla. 4th DCA 1983); Diamond v. State, 436 So.2d 364 (Fla. 3d DCA 1983); Webb v. State, 426 So.2d 1033 (Fla. 5th DCA 1983), pet. for review denied, 440 So.2d 354 (Fla.1983). In language which is essentially identical to Federal Rule of Evidence 801(d)(1)(A), from which it was obviously taken, it states:

(2) A Statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is:

(A) Inconsistent with his testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition....

Since Ortiz testified at trial and his previous statement, which was violently inconsistent with his trial testimony, was under oath, compare, Mazzara v. State, 437 So.2d 716 (Fla. 1st DCA 1983), pet. for review denied, 444 So.2d 417 (Fla.1984); Starchk v. Wittenberg, 411 So.2d 1000 (Fla. 5th DCA 1982), the determinative issue is whether it was given at an "other proceeding" and thus justified its substantive admissibility below.

In answering this question in the negative, we draw on several sources of interpretation:

(1) First, the congressional history of the expression "other proceeding" demonstrates that its insertion by the conference committee represented a compromise between the version drafted by the advisory committee and approved by the Senate, which permitted the substantive use of any prior inconsistent statement, S.Rep. No. 1277, 93rd Cong., 2d Sess. (1974), and that adopted by the House, which required that the statement have been given at a trial, hearing or deposition under oath and subject to cross-examination. H.R.Rep. No 650, 93rd Cong., 2d Sess. (1974). It is clear that the "other proceeding" language, taken with the dropping of the cross-examination requirement, "covers statements before a grand jury." H.R.Rep. No. 1597, 93rd Cong., 2d Sess. (1974) (Conference Committee Report) reprinted in U.S.C.A. The Federal Rules of Evidence and in 4 U.S.Code Cong. & Adm.News 7104 (1974), quoted in United States v. Castro-Ayon, 537 F.2d 1055, 1057 n. 3 (9th Cir.1976), cert. denied, 429 U.S. 983, 97 S.Ct. 501, 50 L.Ed.2d 594 (1976). It is just as plain, however, in the light of the far more restrictive House language which was only slightly expanded, that the term should not be applied to any situation which is not at least close to that analogue. ⁵ As two commentators have stated,

the term "other proceeding" ... was intended to inject into the Rule the stricter limitations of the House version ... lest the meaning of the compromise be read out of the Rule.

Case Comment, Federal Rule of Evidence 801(d)(1)(A)--Prior Inconsistent Statements--Scope of the Term "Other Proceeding"--United States v. Castro-Ayon, 537 F.2d 1055 (9th Cir.1976), 10 Loy.L.A.L.Rev. 497, 503 (1977);

the only appropriate construction of the term "other proceeding" is a narrow one.... [T]o give [it] a liberal construction is to undermine the foundation of reliability that Congress sought to establish for this Rule.

Note, United States v. Castro-Ayon: An Interpretation of Federal Rule of Evidence 801(d)(1)(A), 10 SW.U.L.Rev. 985, 987 (1978).

(2) Applying the widely used, but nonetheless valuable tool of statutory construction which has been Latinized as ejusdem generis, the general word "proceeding" must be construed so as to limit its meaning to one similar to that of the specific terms, "trial" and "hearing," which it follows. 49 Fla.Jur.2d Statutes § 128 (1984); Black's Law Dictionary 608 (rev. 4th ed. 1968). Indeed, the order of the words in section 90.801(2)(a), Florida Statutes (1981) indicates a descending sequence from the most formal setting to the least formal. Thus, an "other proceeding" must be no less formal than a deposition and no more so than a hearing. See Case Comment, Other Proceeding, 10 Loy.L.A.L.Rev. at 503.

(3) Even taken alone, the word "proceeding" itself implies--employing various permutations of the expression--a degree of formality, convention, structure, regularity and replicability of the process in question. Dunn v. United States, 442 U.S. 100, 107, 99 S.Ct. 2190, 2195, 60 L.Ed.2d 743, 751 (1979) ("[T]he Government contends that any statements made under oath for submission to a court, whether given at an attorney's office or in a local bar and grill, fall within the ambit of § 1623.... In our judgment, the term 'proceeding,' which carries a somewhat more formal connotation suggests that Congress had a narrower end in view when enacting § 1623."); United States v. Tibbs, 600 F.2d 19, 21 (6th Cir.1979) ("[C]ommon experience indicates that every proceeding, including an ancillary proceeding, must incorporate certain notions of formality and convention."); see 1 Am.Jur.2d Actions § 3 (1962); 1 C.J.S. Actions § 1h (1936); cases collected, 34 Words and Phrases "Proceeding" (1957).

Using these tools, it seems obvious to us on the face of it that no process of police questioning--much less one of the kind involved here--can qualify as a 90.801(2)(a) "proceeding." Investigative interrogation is neither regulated nor regularized; it contains none of the safeguards involved in an appearance before a grand jury and does not otherwise even remotely resemble that process; and it has no quality of formality and convention which could arguably raise the interrogation to a dignity akin to that of a hearing or trial.

In accordance with this view, the overwhelming weight of authority on the issue is that no variation of police investigatory activity constitutes an 801(d)(1)(A)-90.801(2)(a) proceeding. Martin v. United States, 528 F.2d 1157 (4th Cir.1975) (substantive admissibility of sworn inconsistent statement to federal agents by witness-co-conspirator error since interrogation was not "proceeding"); United States v. Livingston, 661 F.2d 239 (D.C.Cir.1981) (prior inconsistent statement to postal inspector not made in "proceeding," distinguishing Castro-Ayon on ground that "the circumstances fall far short of those in a grand jury proceeding, the paradigmatic 'other...