Fricke v. State

• Decision Date: 03 April 1990
• Docket Number: No. 88-993,88-993
• Citation: 561 So.2d 597
• Parties: 15 Fla. L. Weekly D858 William S. FRICKE, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 597

561 So.2d 597

15 Fla. L. Weekly D858

William S. FRICKE, Appellant, v. The STATE of Florida, Appellee.

No. 88-993.

District Court of Appeal of Florida,

Third District.

April 3, 1990.

Rehearing Denied June 18, 1990.

Benjamin & Aaronson, Daniel Aaronson, and Richard L. Rosenbaum, Fort Lauderdale, for appellant.

Robert A. Butterworth, Atty. Gen., and Yvette Rhodes Prescott, Asst. Atty. Gen., for appellee.

Before HUBBART, LEVY and GERSTEN, JJ.

HUBBART, Judge.

This is an appeal by the defendant William S. Fricke from a judgment of conviction and sentence for sexual battery upon a person eleven years of age or younger, and for lewd and lascivious assault. The dispositive issues presented for review are (1) whether the child-victim in this case was properly allowed to testify at trial via closed-circuit television without having to confront the defendant in court, and (2) whether certain out-of-court hearsay statements of the child-victim were properly allowed in evidence at trial. Because no case-specific findings of necessity or reliability, respectively, were made by the trial court as required by Florida statute to support the above evidentiary rulings, we conclude that the defendant's Sixth Amendment right to confrontation was violated, and, accordingly, reverse and remand for a new trial.

I

The defendant William S. Fricke was charged by information with four counts of sexual battery on a person eleven years of age or younger [§ 794.011(2), Fla.Stat. (1985) ] and four counts of lewd and lascivious assault [§ 800.04, Fla.Stat. (1985) ], upon one C.S., a six-year-old child. After a plea of not guilty was entered, the state filed (1) a pretrial motion to present C.S.'s testimony at trial via closed-circuit television, and (2) a pretrial notice of intent to offer in evidence at trial certain out-of-court hearsay statements of C.S. The court conducted separate pretrial hearings on the above motion and notice.

At the hearing on the state's closed-circuit television motion, no live testimony was adduced. Instead, the state relied entirely on the testimony of Dr. Jerome Poliacoff, a child psychologist, given at a prior hearing on the defendant's motion to conduct a discovery deposition of C.S. At this prior hearing, Dr. Poliacoff testified that he had interviewed C.S. on two occasions, that he had been deposed himself by defense counsel in the case and found the atmosphere at the deposition combative, that in his opinion the deposition was structured to diminish the self-esteem or to intimidate the witness, and that in his opinion C.S. would be "traumatized" by appearing at such a deposition. After hearing argument of counsel, the trial court granted the state's closed-circuit television motion based on a finding that such a procedure would protect C.S. "from the impact of having to testify in a courtroom full of strange people" and thus would "minimize the impact of this trial" on a child "with her emotional stability." (T.267, 269-70). No other findings, however, were made by the trial court.

At the hearing on the state's hearsay statement notice, five out-of-court statements by C.S. were proffered by the state. These statements accused the defendant of sexually molesting C.S., and were testified to by Clifford S. (C.S.'s father), Beverly S. (C.S.'s stepmother), Detective Julio Padron (Sexual Battery Unit, Metro-Dade Police Department), and Dr. Jerome Poliacoff (child psychologist). After receiving this evidence and hearing argument of counsel, the trial court ruled that it would "allow this information ... to be admitted in the [sic] evidence during the trial pursuant to [s] 90.803 sub. 23 [Fla.Stat. (1987) ]." (T.376). No findings, however, were made by the trial court to support this result. Moreover, the trial court during trial specifically declined to give any case-specific reasons for its ruling, stating:

"I granted the motion on intent to rely and that's the entire motion and I don't need to sit here and lay out reasons for doing it. I granted it."

T.671.

At trial, C.S. was allowed to testify via closed-circuit television from the trial judge's chambers outside the presence of the defendant; only the prosecutor and defense counsel were allowed to confront and question C.S. in the judge's chambers while the defendant, the judge, and jury watched the testimony from a television monitor in the courtroom. The defendant was able to communicate with his counsel, but not vice versa, during C.S.'s testimony. In addition, the state introduced in evidence, over objection, the aforesaid hearsay statements of C.S. Both C.S.'s trial testimony and her hearsay statements were highly incriminating and tended to establish the unlawful sexual acts charged in the information; the defendant, however, denied these charges in his trial testimony.

At the close of all the evidence, the trial court entered a judgment of acquittal on three of the sexual battery counts and on three of the lewd and lascivious counts on the ground that such counts were repetitious. The trial court sent the case to the jury on one count of sexual battery [count 1] and one count of lewd and lascivious assault [count 5]; the jury found the defendant guilty on these two counts. Based on this verdict, the trial court sentenced the defendant to life imprisonment, with a minimum mandatory term of twenty-five years, on the sexual battery count, and five years imprisonment on the lewd and lascivious count--the two sentences to run concurrently. This appeal follows.

II

The defendant's central point on appeal is that the trial court's rulings in (a) authorizing C.S. to testify at trial via closed-circuit television without any case-specific finding of necessity, and (b) admitting in evidence C.S.'s accusatory hearsay statements without any case-specific finding of reliability, violated the defendant's right of confrontation guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. We entirely agree.

A

Turning first to the closed-circuit television ruling, the United States Supreme Court has held that it is a violation of a defendant's Sixth Amendment right of confrontation for a state by statute to preclude a face-to-face encounter between an accusing child abuse witness and a criminal defendant by requiring that a screen be placed between the defendant and the witness while the witness testifies in open court--based solely on a statutory presumption that such screen was necessary to protect child abuse victims from the trauma of facing the defendant while testifying in a sex abuse case. Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). Specifically, the Court concluded that the confrontation clause of the Sixth Amendment provides a criminal defendant with the right to confront face to face the witnesses giving evidence against him at trial; indeed, in the Court's view, this physical confrontation between the accused and his accuser is a "core guarantee" of the confrontation clause with a strong historical foundation. The Court stated:

"The Confrontation Clause does not, of course, compel the witness to fix his eyes upon the defendant; he may studiously look elsewhere, but the trier of fact will draw its own conclusions. Thus the right to face-to-face confrontation serves much the same purpose as a less explicit component of the Confrontation Clause that we have had more frequent occasion to discuss--the right to cross-examine the accuser; both 'ensur[e] the integrity of the fact-finding process.' Kentucky v. Stincer, supra, 482 U.S. at 736, 107 S.Ct. [2658], at 2662 [96 L.Ed.2d 631 (1987) ]. The State can hardly gainsay the profound effect upon a witness of standing in the presence of the person the witness accuses, since that is the very phenomenon it relies upon to establish the potential 'trauma' that allegedly justified the extraordinary procedure in the present case. That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult. It is a truism that constitutional protections have costs."

108 S.Ct. at 2802.

In the instant case, as in Coy, a child abuse witness was allowed to testify at trial without having to physically confront the defendant in open court; this witness testified from the judge's chambers via closed-circuit television while the defendant remained in the courtroom. This denial of the right to physically confront his accuser face to face constitutes a prima facie violation of the defendant's Sixth Amendment right to confrontation based on the authority of Coy--absent a recognized exception thereto. We turn now to a discussion of whether such an exception exists, and, if so, whether it is applicable to this case.

It seems reasonably clear that the Court in Coy did not establish an absolute rule requiring physical confrontation between the accused and his accuser in all cases as part of the Sixth Amendment guarantee, but left for another day ¹ the question of exceptions. Specifically, the Court stated that any exceptions would "be allowed only when necessary to further an important public policy," and that "something more than the type of generalized finding [of necessity] underlying [the Iowa] statute is needed." 108 S.Ct. at 2803.

In a concurring opinion, Justice O'Connor further elaborated on the possibility of exceptions to the right of physical confrontation. According to Justice O'Connor the right is not absolute and "may give way in an appropriate case to other competing interests." 108 S.Ct. at 2803. Justice O'Connor wrote:

"I would permit use of a particular trial procedure that called for something other than face-to-face confrontation if that procedure was necessary to further an important public policy. The protection of child witnesses is, in my view and in the view of a substantial majority of the States, just...