Green v. State, 91-476

• Decision Date: 04 January 1995
• Docket Number: No. 91-476,91-476
• Citation: 667 So.2d 789
• Parties: 20 Fla. L. Weekly D125 Willie GREEN, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 789

667 So.2d 789

20 Fla. L. Weekly D125

Willie GREEN, Jr., Appellant, v. STATE of Florida, Appellee.

No. 91-476.

District Court of Appeal of Florida First District.

Jan. 4, 1995.

Appeal from the Circuit Court for Gadsen County. Judge Philip Padovano.

Nancy A. Daniels, Public Defender, and Carol Ann Turner, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Charlie McCoy, Asst. Atty. Gen., Tallahassee, for appellee.

BARFIELD, Judge.

Willie Green, Jr. appeals his convictions, after jury trial, of lewd, lascivious or indecent assault upon a child, in violation of section 800.04, Florida Statutes, and sexual battery by slight force, in violation of 794.011(5), Florida Statutes. We reverse.

The record shows that the 14-year-old victim was mildly to moderately mentally retarded, functioning at a developmental level below the age of 11. According to the evidence, the victim reported to her sister and to her sister-in-law that Willie Green, her mother's boyfriend, had committed sexual offenses against her. After the sisters reported her statements to the Department of Health and Rehabilitative Services (HRS), a Child Protection Team worker conducted a videotaped interview with the victim. During the interview, the victim described certain sexual acts committed upon her by Willie Green. The victim was also examined by a Child Protection Team pediatrician who found that the size of her vaginal opening was consistent with some form of vaginal penetration.

In a deposition taken by defense counsel after Green's arrest, the victim again implicated Green with statements about specific sexual offenses he had committed upon her. However, at trial, she recanted her earlier accusations against Green and stated instead that he had not committed those offenses against her and that she had never told anyone that he had. Thereupon, over defense counsel's objection, pursuant to section 90.801(2)(a), the trial court allowed the state to read to the jury the victim's deposition testimony. Also, after making extensive findings of reliability, pursuant to section 90.803(23)(a), the trial judge allowed the state to elicit from the sister and sister-in-law the accusations the victim had related to them concerning Willie Green and he allowed into evidence the videotaped interview.

The primary issues on appeal which we find necessary to address are whether the deposition testimony was admissible as substantive evidence, and if so, was the evidence in this case sufficient to sustain appellant's conviction.

We find that the deposition was admissible as substantive evidence. Section 90.801(2)(a), Florida Statutes, provides that a statement is not hearsay if the declarant testifies at trial and is subject to cross-examination, and the statement is inconsistent with her testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition. Clearly, the challenged deposition meets those requirements and was admissible evidence under that statute. In Moore v. State, 452 So.2d 559 (Fla.1984), the court declared:

We therefore hold that under section 90.801(2)(a), Florida Statutes (1981), the prior inconsistent statement of a witness at a criminal trial, if given under oath before a grand jury, is excluded from the definition of hearsay and may be admitted into evidence not only for impeachment purposes but also as substantive evidence on material issues of fact. We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence. Section 90.801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination. (Emphasis supplied.) ¹

In considering the question of the sufficiency of the evidence, we recognize that the supreme court has qualified its determination that statements admissible pursuant to 90.801(2)(a) may be considered as substantive evidence by later ruling that a prior inconsistent statement, even one admissible pursuant to the above statute, does not constitute sufficient evidence to sustain a conviction when the prior inconsistent statement is the only substantive evidence of guilt. See State v. Moore, 485 So.2d 1279 (Fla.1986). In the instant case, the deposition testimony of the victim did constitute the sole substantive evidence not only of "guilt" but that a crime had been committed. Other admissible, corroborating hearsay evidence of guilt included the trial testimony of the sister and sister-in-law, as well as the videotaped statements of the victim, all of which we find were admissible and properly admitted in this case in accordance with section 90.803(23)(a), Florida Statutes. Nevertheless, the sole evidence appellant committed a crime was a single out-of-court statement of the victim said on three separate occasions. We have not disregarded the pediatrician's testimony. However, the size of the vaginal opening being consistent with some form of vaginal penetration does not equate to proof of a crime.

We note that in Moore, supra at 1281, the court stated:

We agree that the risk of convicting an innocent accused is simply too great when the conviction is based entirely on prior inconsistent statements.

Recognizing the impact in cases of this type of our ruling in this case, we certify the following question to be one of great public importance:

WHEN AN ALLEGED VICTIM OF CHILD SEXUAL ABUSE RECANTS AT TRIAL, DOES HER PRIOR INCONSISTENT STATEMENT, ADMISSIBLE PURSUANT TO SECTION 90.801(2)(a), FLORIDA STATUTES, CONSTITUTE SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION WHEN THE ONLY OTHER EVIDENCE OF THE DEFENDANT'S GUILT IS OTHER PRIOR INCONSISTENT STATEMENTS MADE BY THE VICTIM, WHICH HAVE BEEN FOUND TO BE RELIABLE AND ARE ADMISSIBLE PURSUANT TO SECTION 90.803(23)(a), FLORIDA STATUTES?

We have considered the remaining issues raised by appellant and find them to be without merit.

REVERSED.

ERVIN, J., concurs and dissents, with written opinion.

MINER, J., concurs in part, and dissents in part, with written opinion.

ERVIN, Judge, concurring and dissenting.

I dissent from that portion of Judge Barfield's opinion holding the victim's deposition testimony admissible as substantive evidence pursuant to Section 90.801(2)(a), Florida Statutes (1989). In my judgment, the Florida Supreme Court's decision in Moore v. State, 452 So.2d 559 (Fla.1984), concerning a construction of section 90.801(2)(a), should have no application to cases involving facts dissimilar from those in Moore. I understand Moore simply to say that section 90.801(2)(a) permits admission as substantive evidence of a prior inconsistent statement of a witness testifying at a criminal trial when the prior statement had been given under oath before a grand jury. No facts were before the court, as here, regarding whether a prior, inconsistent statement made during a discovery deposition, taken pursuant to Florida Rule of Criminal Procedure 3.220(h), but not in compliance with Florida Rule of Criminal Procedure 3.190(j), which governs the procedure for taking depositions for the purpose of perpetuating testimony, is admissible at trial as substantive evidence.

I am fully aware that section 90.801(2)(a) provides that a sworn, out-of-court statement inconsistent with the declarant's trial testimony is not hearsay if its declarant testifies at trial and is subject to cross-examination. Nevertheless, I consider that the same judicial rule which bars the use of discovery depositions as substantive evidence, when such depositions are introduced as an exception to the hearsay rule under Section 90.804(2)(a), Florida Statutes, is equally applicable to exclude the similar use of prior, inconsistent statements obtained during a discovery deposition, if offered for admission under the provisions of section 90.801(2)(a). A summary of pertinent Florida case law offers strong support to this conclusion.

In State v. James, 402 So.2d 1169 (Fla.1981), the supreme court broadly stated that discovery depositions are not admissible as substantive evidence absent compliance with rule 3.190(j), and based its holding not on any perceived violation of the confrontation clause, but on certain language of rule 3.220(h), providing that discovery depositions "may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness." Thus, the court interpreted the rule as precluding the use of discovery depositions at criminal trials for any purpose other than for impeachment or contradiction. The James decision was recently reaffirmed by the Florida Supreme Court in Rodriguez v. State, 609 So.2d 493, 499 (Fla.1992), wherein the court, in refusing to extend the rule which allows the use of discovery depositions as substantive evidence in civil cases to criminal cases, noted that because the rules of civil procedure do not provide an exception to the common law rule excluding depositions as hearsay, the evidence code may provide such an exception in civil proceedings. Id. at 498. The court continued, however, that a similar result was not warranted in criminal cases "because greater latitude for the use of depositions in civil cases exists by virtue of Rule of Civil Procedure 1.330 which is much broader than the Rules of Criminal Procedure that provide for the use of deposition testimony." Id. See also Smith v. State, 606 So.2d 641, 644 (Fla. 1st DCA 1992); Clark v. State, 572 So.2d 929 (Fla. 5th DCA 1990), approved in part, quashed in part, 614 So.2d 453 (Fla.1992); Campos v. State, 489 So.2d 1238 (Fla. 3d DCA 1986); Jackson v. State, 453 So.2d 456 (Fla. 4th DCA 1984).

I recognize that all of the above cases involved attempts to admit discovery depositions as substantive evidence under section 90.804(2)(a) and not,...