Distefano v. State
| Decision Date | 06 April 1988 |
| Docket Number | No. 87-87,87-87 |
| Citation | 526 So.2d 110,13 Fla. L. Weekly 1367 |
| Parties | 13 Fla. L. Weekly 1367, 13 Fla. L. Weekly 861 Vincent DISTEFANO, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Joel M. Cohen, Pensacola, for appellant.
Robert A. Butterworth, Atty. Gen., Kurt L. Barch, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant, Vincent Distefano, appeals his conviction for a lewd and lascivious act upon a nine-year-old child (S.D.). He raises two issues for our consideration, only one of which merits discussion. Appellant contends that the trial court erred in admitting in evidence the child's out-of-court account of the sexual incident where the state failed to adequately comply with the notice requirement in section 90.803(23), Florida Statutes (1985). More specifically, he asserts that the notice lacked information indicating that the child's statements were trustworthy and that in fact her statements were not trustworthy. We affirm.
About two weeks before trial, the state gave written notice to appellant of its intent to rely on the child's out-of-court accounts of the sexual incident, describing the hearsay evidence to be introduced as follows:
1. Video and audio tape recording of the interview of the victim, [S.D.], taken by the Child Protection Team concerning the incident which supports this cause of action and was taken on October 16, 1986.
2. On October 14, 1986, the day of the alleged crime, the victim, [S.D.], told her mother, Denise Erickson, that the defendant had placed her on his couch, pulled her panties down and kissed and licked her private parts and that he took On the same date as the trial was scheduled to commence, appellant filed a motion to exclude the hearsay testimony on the ground that the state's notice was deficient under the statute, section 90.803(23), in that it failed "to include the circumstances surrounding the statements which indicate their reliability and any other particulars necessary to provide full disclosure of the statements." Just before commencement of the trial, the court conducted a hearing on the motion, at which counsel for appellant asserted his inability to adequately prepare to meet the testimony since the notice did not inform him of any indicia of reliability. The state responded by informing the court that several weeks prior to receiving the notice, defense counsel had viewed the videotape and deposed the victim's mother for two hours during which time he inquired extensively into the child's statements made on the date of the incident. The state also informed the court that defense counsel had never requested a statement of additional particulars, even though he had received oral notice several days prior to the requisite written notice.
his pants down, braced himself over her and touched her legs with his male part.
In finding that the notice was sufficient, the trial court stated:
I think there is no question that the intent to offer is there, the time is there. The question is whether or not the contents of the child's statements or the circumstances that surround are there. There are two things they intend to offer. First of all, the video and audio tape recording of the interview that's been given of the child taken by the Child Protection Team. Although it's not real specific, I think it adequately notifies the defendant of the circumstances there. And I especially take that in light of the fact that the defense has viewed that and seen the tape earlier, much earlier in the discovery process.
As it relates to the second item, the child's statement is to her mother, the State does go into more detail there as to the contents of the child's statement, and what seems to be not as clear there might be the circumstances that surrounded her telling her mother those things. Inasmuch as you have taken the mother's deposition and you have fully explored that on the deposition, you're well aware of what they intend to offer in that regard.
The trial court then conducted a hearing to determine whether the hearsay statements were sufficiently reliable to be admitted at trial. The three witnesses who testified were the victim, S.D., the victim's mother, Denise Erickson, and the interviewer for the Child Protection Team, Linda Edwards.
S.D. testified that she was ten years old. She defined the truth as "something that--that you tell that's right, that's correct," which is the opposite of a lie. She admitted that she had lied lots of times (without clarifying what she meant by "lots") for which she had usually been spanked.
Denise Erickson testified that she granted S.D. permission to spend the night with appellant, who was their next door neighbor, but that he brought her back home about 10:00 p.m. because she claimed to be homesick. She stated that appellant remained in their home for a few minutes, and that immediately after his departure, the following conversation with her daughter took place:
I turned to [S.D.] and I said, "[S.D.], I can't believe you got homesick." And she had her head down, and she began pouting. Her eyes watered up a little bit. She said, "It's not that, Mom," and I said, "What was it?" And she began to cry and she said, "It's Dusty [appellant], he touched my privates."
The mother also testified that she had told S.D. about the dangers of child molesting and that S.D. knew what her "private parts" were. On cross-examination, the mother testified that S.D. told her story within 3-5 minutes after being returned home which contradicted her deposition testimony that appellant had remained in their home 5-10 minutes.
Linda Edwards testified that she was a senior case coordinator for the Child Protection Team and that she had interviewed In finding that the proffered statements were reliable, the trial court stated:
S.D. on videotape two days after the incident. She stated that the mother brought the child to the office but remained in the waiting room during the videotaped interview. She testified that the child was not asked any questions before the interview and that during the interview the only persons present were the child and the interviewer. She indicated that the interview room contained a two-way mirror behind which the video equipment was operated in the adjoining room by another case coordinator.
[T]he child appears to have a reasonable understanding of what's true and what's false. She appears to have ... typical maturity for a 10-year-old who would generally be able to tell the truth and know the truth. She seems to be bright enough to relate what occurred. The child immediately reported the offense, not leaving much time for fabrication. I think that's a very significant factor. Concedes [sic] to the defense that it was 10 minutes long, that's still reporting it right after she was brought home. Even if it had been a half hour, I think it still would be reasonably close enough to report rather than waiting until the next day or a week or something like that.
The child's emotional state when she told her mother, she seemed to be visibly upset. I think her emotional state is indicative of her relating truthfully what she felt happened to her at that time. Her recollection of other facts or data of things that occurred that were not directly related to any touching or anything, I think is indicative of the fact that she was aware and appreciated what was going on there at the time. I think the fact that the mother had previously discussed private parts and sort of what to look out for is indicative of the fact that the child might be able to adequately relate what had occurred to her.
There doesn't appear to be any evidence of coaching on the videotaped deposition. It seems to have been taken precaution. [sic] I think both statements for those reasons are admissible.
Section 90.803(23), Florida Statutes (1985), creates a limited exception to the hearsay rule for reliable statements of victimized children eleven or less who describe the act of abuse. Before the child's extra-judicial statements may be used, however, the prosecutor must inform the defendant of his intention to offer the statements at trial. Section 90.803(23)(b) states:
In a criminal action, the defendant shall be notified no later than 10 days before trial that a statement which qualifies as a hearsay exception pursuant to this subsection will be offered as evidence at trial. The notice shall include a written statement of the content of the child's statement, the time at which the statement was made, the circumstances surrounding the statement which indicate its reliability, and such other particulars as necessary to provide full disclosure of the statement.
In creating this provision, the Florida Legislature implicitly recognized that hearsay evidence is not inherently trustworthy, and that the admissibility of such statements in child sexual abuse cases, if in fact untrustworthy and ultimately believed by a jury, would deprive a defendant of his right to a fair trial, particularly where the alleged victimized child was unavailable for cross-examination at the trial. The notice requirement is one method selected by the Florida Legislature to prevent abuse of the newly-created hearsay exception. When the prosecution fails to provide adequate notice, it becomes more difficult for the defendant to attack the trustworthiness of the extra-judicial statement and this safeguard is frustrated.
From a review of the record in the present case, we find that the state attorney did not satisfy the notice requirement contained in the above subsection. Except for a reference to the names of the persons to whom the statements were made, the notice contains absolutely no details indicating that the statements were trustworthy. For purposes of the above subsection, statements made to a Child Protection Team member are not presumed to be reliable.
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