Feller v. State, 91-1062
| Decision Date | 16 April 1993 |
| Docket Number | No. 91-1062,91-1062 |
| Citation | 617 So.2d 1091 |
| Parties | 18 Fla. L. Week. D1040 Joseph FELLER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender and David P. Gauldin, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen. and Carolyn J. Mosley, Asst. Atty. Gen., for appellee.
Joseph Feller appeals his conviction and sentences on three counts of sexual battery on a child less than twelve years old. He raises four issues for our consideration. We summarily affirm as to appellant's arguments involving the testimony of Dr. Harris, the admission of collateral crimes evidence, and the admission of certain statements made by the child victim to police officers and other child abuse investigators. Appellant's remaining issue concerns the propriety of the trial court's decision to allow the victim, W.O., to give her trial testimony by videotape, pursuant to section 92.53, Florida Statutes (1989). Having thoroughly considered appellant's arguments on these points, we find no reversible error.
Prior to trial the prosecutor filed a motion to allow the videotaped testimony of the victim, as opposed to live courtroom testimony. The matter came on for an evidentiary hearing, at which time the state presented the testimony of Dr. Harris, a practicing clinical psychologist from Brunswick, Georgia. Dr. Cheryl Harris rendered an expert opinion that W.O. would suffer at least moderate emotional harm were she required to testify in open court in the presence of Mr. Feller, who is her stepfather. Dr. Harris explained the reasons for her opinion, which included suicidal ideations on the part of W.O. and W.O.'s fear that she would cause irreparable damage to her family. Among the statements made by Dr. Harris are the following:
And I think she would be put in a very awful situation in open court if she were to be expected to tell the truth, and if the truth was that she was sexually abused by the defendant, she would be facing a choice to lie or to destroy her family, or what she thinks is going to destroy her family.
* * * * * *
And I said how would you feel if you had to go to court and tell what happened? And she said, would my daddy be there? And I said, well, yes. And she was very frightened by that and sort of made a gesture to me of how she anticipated her father looking at her, and just said repeatedly: 'I'm not going to do that, I'm not going to do that, I don't want to do that.'
And I said, well, what,--you know, what if you--could you do this: Could you talk if you were in a small room away from the courtroom and the lawyers and a judge were present? And she said, well, okay.
Dr. Harris also made it clear that she was "speaking about [W.O.] in this specific situation." She stated that there might be situations in which it would not be so traumatic for a child to come into court and testify.
The defense counsel requested that she be allowed to consult with her own expert psychologist prior to presenting argument on the state's motion. The court was in agreement, and accordingly reconvened the hearing on January 17, 1991. At that time, defense counsel objected on the basis that the video testimony "violates the Sixth Amendment right to confrontation ... the privilege of face to face confrontation." In response, the prosecutor called the court's attention to section 92.53, explaining the requirement that certain findings be made by the court. 1 In response to defense counsel's objection, the prosecutor pointed out that the statute has been held constitutional, and does not violate the defendant's constitutional right to confrontation of witnesses. See Glendening v. State, 536 So.2d 212 (Fla.1988), cert. denied, 492 U.S. 907, 109 S.Ct. 3219, 106 L.Ed.2d 569 (1989). The prosecutor then proceeded to remind the trial judge of the import of Dr. Harris' testimony with regard to the statutory requirement of specific findings. In so doing, the prosecutor paraphrased those portions of Dr. Harris' testimony set out in this opinion above.
At that point, defense counsel, without specifically referring to the statute or to any constitutional entitlement of Mr. Feller, asked "the court to allow Mr. Feller face-to-face contact with [W.O.] during her testimony." The court then inquired whether anyone had "anything else they wished to say." Counsel declined. The trial court ruled as follows:
I think I'm satisfied that Dr. Harris' testimony comports to the statute, that there is at least a substantial likelihood of--I believe it says even moderate harm, is sufficient to allow videotaping of the child; and therefore, I'm going to grant the state's motion to videotape the testimony of this child.... So having said that, are we ready to proceed now?
Defense counsel then moved into a discussion of the details of who would be present during W.O.'s testimony.
No defense objection was raised when the videotape was offered at trial. After the verdict, the defense moved for a new trial, alleging: "The Court erred in its pretrial ruling allowing [W.O.] to testify by means of video tape."
At no point prior to or during the trial did the defense object to any lack of specificity in the judge's findings made under section 92.53(1). The only objection ever raised was to the constitutional right of confrontation. Once the state cited Glendening, supra, the defense counsel modified her position somewhat by deleting a reference to constitutional rights, and merely asking the court to allow face to face confrontation. The defense has not preserved its right to argue on appeal that Mr. Feller is entitled to a new trial by virtue of the trial court's failure to make findings with the specificity required by section 92.53. Hopkins v. State, 608 So.2d 33 (Fla. 1st DCA), rev. granted, No. 80,514, --- So.2d ---- (Fla. Sept. 24, 1992); Sanders v. State, 568 So.2d 1014 (Fla. 3d DCA 1990), rev. denied, 581 So.2d 166 (Fla.1991); see also, Maddry v. State, 585 So.2d 359, 360 (Fla. 1st DCA 1991) (); Jackson v. State, 456 So.2d 916, 919 (Fla. 1st DCA 1984) ().
This case points out the salutary purpose of the rule requiring an objection to be made on specific grounds. It would appear that the testimony of Dr. Harris, apparently accepted by the trial court, is facially sufficient to comply with the dictates of section 92.53, as well as the case-specific findings requirement established in Maryland v. Craig, 497 U.S. 836, 855-57, 110 S.Ct. 3157, 3169, 111 L.Ed.2d 666 (1990). 2 Had a specific objection been contemporaneously made, the trial court could have easily amplified its findings, by extracting more specific information from the testimony of Dr. Harris. If, upon consideration of a specific objection, the trial court had determined that the requirements of the statute were not met, he could have required the state to make a further showing, or alternatively, simply denied the motion and ordered that the case proceed to trial without the use of videotaped testimony. Given the present posture of the case, and with ample reflection upon the overall force and effect of the evidence in this case, we are unable to perceive that the rights of all interested parties, including appellant and the child victim, would be served by a new trial. 3
This court has previously certified to the supreme court the question of whether the failure to make findings under a companion statute, section 92.54(5), Florida Statutes (1989) (), constitutes fundamental error. Hopkins, supra. We believe it is appropriate to certify the same question as it relates to findings required by section 92.53. We therefore certify the following question to the supreme court as a question of great public importance:
DOES A TRIAL COURT COMMIT FUNDAMENTAL ERROR BY FAILING TO MAKE THE FINDINGS REQUIRED BY SECTION 92.53(1), FLORIDA STATUTES (1989), PRIOR TO ALLOWING A
Our consideration of this case has led us to ponder a question apart from the substantive legal issues raised by the appellant and the state of Florida. In the event the supreme court determines that the trial court in this case committed fundamental error, what would be the appropriate remedy? It has generally been assumed, particularly in direct criminal appeals, that the remedy for harmful error is reversal for a new trial. 4 It appears, however, that in certain instances, error by a trial court in a criminal case may be dealt with by remand for an evidentiary hearing. See Marshall v. State, 593 So.2d 1161 (Fla. 2d DCA 1992) (). In the present case a record already exists upon which the trial court could consider the findings required by section 92.53(1). If the error is merely the trial court's failure to make certain findings, rather than the sufficiency of the evidence to support such findings, we question whether a new trial is the only efficacious remedy. In Marshall v. State, supra, an appeal in a capital sexual battery case, authorizing an evidentiary hearing as the initial remedy in the face of a Neil 5 violation, the court made certain well-considered observations:
In deciding to allow an evidentiary hearing before making a decision on the necessity of a new trial, we have taken into account various...
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Sigmon v. State, 90-03637
...[emphasis added] We conclude, however, that appellant has failed to preserve this issue for appellate review. Feller v. State, 617 So.2d 1091 (Fla. 1st DCA 1993) (although defendant requested that he be present during videotaping of child victim's testimony, he did not object to the trial c......
- Feller v. State