Glendening v. State

• Decision Date: 01 December 1988
• Docket Number: No. 70346,70346
• Citation: 13 Fla. L. Weekly 690,536 So.2d 212
• Parties: , 13 Fla. L. Weekly 690 David Edward GLENDENING, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 212

536 So.2d 212

57 USLW 2391, 13 Fla. L. Weekly 690

David Edward GLENDENING, Petitioner, v. STATE of Florida, Respondent.

No. 70346.

Supreme Court of Florida.

Dec. 1, 1988.

Rehearing Denied Feb. 3, 1989.

Stuart C. Markman of Winkles, Trombley, Kynes & Markman, P.A., Tampa, and Ronald K. Cacciatore, P.A., Tampa, for petitioner.

Robert A. Butterworth, Atty. Gen., and Katherine V. Blanco and Kim W. Munch, Asst. Attys. Gen., Tampa, for respondent.

EHRLICH, Chief Justice.

We have for review Glendening v. State, 503 So.2d 335 (Fla.2d DCA 1987), in which the district court expressly declared valid section 90.803(23), Florida Statutes (1985). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

On July 26, 1985, Glendening was charged by information with sexual battery upon a child eleven years of age or younger, in violation of section 794.011(2), Florida Statutes (1985). The acts upon which the charge was based were alleged to have occurred between September 1, 1984 and June 24, 1985. The alleged victim was Glendening's three-and-one-half-year-old daughter.

Glendening was found guilty of the charged offense and received a life sentence with a mandatory minimum twenty-five years of incarceration. On appeal, the Second District Court of Appeal affirmed Glendening's conviction and sentence, rejecting the arguments that the trial court erred in admitting out-of-court statements made by the young victim under section 90.803(23), Florida Statutes (1985).

Glendening now seeks review of the decision of the Second District Court of Appeal. As the district court below noted, the major thrust of Glendening's argument involves the constitutionality of section 90.803(23), its applicability to his case, and compliance with the section's requirements. Section 90.803(23) is a hearsay exception which permits, under certain circumstances, the introduction of out-of-court statements made by a child victim of sexual abuse describing any act of child abuse, sexual abuse, or any other offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child, if the child has a physical, mental, emotional, or developmental age of eleven or less.

We first reject Glendening's contention that section 90.803(23) is unconstitutional on its face. Glendening relies upon the arguments set forth in the brief of Petitioner Perez filed in the case of Perez v. State, Case No. 70,027 in regard to this issue. We rejected these arguments in our decision in Perez v. State, 536 So.2d 206 (Fla.1988), released simultaneously with the present decision.

We next address Glendening's argument that because he was charged with an offense occurring before the effective date of section 90.803(23), application of the new hearsay exception to his case violated the prohibition against ex post facto laws. The United States Supreme Court has stated that there has been no attempt to precisely delimit the scope of the phrase "ex post facto law." One statement of the characteristics of an ex post facto law set forth by the Supreme Court, however, provided that " 'any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.' " Dobbert v. Florida, 432 U.S. 282, 292, 97 S.Ct. 2290, 2297, 53 L.Ed.2d 344 (1977) (quoting Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 69, 70 L.Ed. 216 (1925)). Another formulation, reiterated recently in Miller v. Florida, also provides that " '[e]very law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender' " violates the prohibition against ex post facto laws. 482 U.S. 423, 107 S.Ct. 2446 2450, 96 L.Ed.2d 351 (1987) (quoting Calder v. Bull, 3 U.S. (Dall.) 386, 1 L.Ed. 648 (1798)). No ex post facto violation occurs if a change is merely procedural and does not alter "substantial personal rights." Miller, 107 S.Ct. at 2451; Dobbert, 432 U.S. at 293, 97 S.Ct. at 2298.

Relying primarily upon that portion of the formulation of the scope of ex post facto laws from Miller which is set forth above, Glendening contends that section 90.803(23) alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense. He further contends that because he was disadvantaged by the retrospective application of the exception, admission of the out-of-court statements of the child victim pursuant to section 90.803(23) in his case violated the prohibition against ex post facto laws. We disagree.

The proscription against laws which affect the legal rules of evidence and receive less, or different, testimony in order to convict the offender has been construed as prohibiting those laws which " 'change the ingredients of the offence or the ultimate facts necessary to establish guilt.' " Miller, 107 S.Ct. at 2453 (quoting Hopt v. Utah, 110 U.S. 574, 590, 4 S.Ct. 202, 210, 28 L.Ed. 262 (1884)). Changes in the admission of evidence have been held to be procedural. Two examples of this, noted in Dobbert, are found in Hopt and Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204 (1898). In Hopt, the law in effect on the date of the alleged homicide provided that a convicted felon could not be called as a witness. Prior to trial of the case, the law was changed and a convicted felon, called to the stand to testify, implicated Hopt in the crime. The Supreme Court rejected the argument that the law was ex post facto, stating that "[a]ny statutory alteration of the legal rules of evidence which ... only removes existing restrictions upon the competency of certain classes of persons as witnesses, relate to modes of procedure only" and "are not ex post facto in their application to prosecution for crimes committed prior to their passage." 110 U.S. at 589, 590, 4 S.Ct. at 209-10. In Thompson, the Missouri Supreme Court reversed Thompson's conviction of murder because of the inadmissibility of certain evidence. Letters written by the defendant to his wife were submitted for handwriting comparison, which was prohibited by the rules of evidence. Prior to the second trial, the law was changed to make this objectionable evidence admissible and Thompson was again convicted. The United States Supreme Court rejected the argument that this change was violative of the ex post facto clause and held that the change was procedural. See Dobbert, 432 U.S. at 293, 97 S.Ct. at 2298.

The same reasoning which resulted in the Supreme Court's determination that the statutes in Hopt and Thompson were procedural leads to the conclusion that section 90.803(23), Florida Statutes, is also procedural and that the statute does not affect "substantial personal rights." As in Hopt, "[t]he crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by" the enactment of section 90.803(23). 110 U.S. at 589-90, 4 S.Ct. at 209-10. As in Thompson, section 90.803(23) "left unimpaired the right of the jury to determine the sufficiency or effect of the evidence declared to be admissible, and did not disturb the fundamental rule that the state ... must overcome the presumption of his innocence, and establish his guilt beyond a reasonable doubt." 171 U.S. at 387, 18 S.Ct. at 924. Accordingly, we conclude that the district court below correctly held that application of section 90.803(23) in the present case does not violate the prohibition against ex post facto laws.

The third issue addressed concerns compliance with the requirements of section 90.803(23) in the trial court below. Prior to trial, the state served a motion to videotape the child's testimony for introduction at trial pursuant to section 92.53, Florida Statutes (1985). Section 92.53 provides that upon a finding that there is a substantial likelihood that a victim or witness [in a sexual abuse or child abuse case] who is under the age of 16 would suffer at least moderate emotional or mental harm if he were required to testify in open court or that such victim or witness is otherwise unavailable as defined in s. 90.804(1), the trial court may order the videotaping of the testimony of the victim or witness in a sexual abuse case or child abuse case, whether civil or criminal in nature, which videotaped testimony is to be utilized at trial in lieu of trial testimony in open court.

The trial court heard evidence on the motion and found that there was a substantial likelihood that the child would suffer at least moderate emotional or mental harm if she were required to testify in open court. The trial court accordingly entered an order permitting the videotaping and required Glendening to view the testimony outside the child's presence.

At the videotaping session, the trial court first conducted a voir dire examination of the child to determine her competency to testify. The trial court concluded that the child was competent to testify because she showed an above average intelligence for a three-and-one-half-year-old child and was aware of her surroundings, attributing her inability to explain the difference between the truth and a lie to the inartful questioning by the court and the state attorney. Thereafter, when the child was interrogated concerning the matters involved in the case, she did not implicate her father in any misconduct.

Glendening made a pretrial motion to exclude all hearsay statements made by the child. In response, the state filed a notice of the various hearsay statements it intended to introduce. The trial court ruled that the state's...