Harrell v. State, 95-1984

• Decision Date: 05 March 1997
• Docket Number: No. 95-1984,95-1984
• Citation: 689 So.2d 400
• Parties: , 22 Fla. L. Weekly D582 David HARRELL, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 400

689 So.2d 400

65 USLW 2679, 22 Fla. L. Weekly D582

David HARRELL, Appellant, v. The STATE of Florida, Appellee.

No. 95-1984.

District Court of Appeal of Florida Third District.

March 5, 1997.

Bennett H. Brummer, Public Defender, and Donald Tunnage, Special Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General, and Fleur J. Lobree, Assistant Attorney General, for appellee.

Before NESBITT and GERSTEN, JJ., and BARKDULL, Senior Judge.

GERSTEN, Judge.

Appellant, David Harrell ("defendant"), appeals his conviction, claiming violation of his constitutional rights under the Confrontation Clause of the Sixth Amendment. We affirm because the procedures used in admitting live satellite testimony of two material witnesses residing in Buenos Aires, Argentina adequately preserved the defendant's Sixth Amendment rights.

The admission of material witnesses' testimony by satellite explores a panoply of issues not contemplated by our Founding Fathers. For example, with current technology, we could conduct satellite trials in a virtual ¹ courtroom, while the jury deliberates in a secure cyber chat room. Unfortunately, the Constitution does not address this specific issue, but its timeless language, having survived the Industrial Revolution and other technological revolutions, must apply to all judicial proceedings. ² Our courts, however, must integrate procedural rules with the techno-evolutionary reality beyond the insulated stone walls of the courthouse. We wholeheartedly embrace the concept of satellite testimony, because it enhances the efficiency of our courts.

I. FACTS

The victims in this case are a married couple who are residents of Argentina and were vacationing in Florida. While attempting to return their rental car, they got lost, and were robbed by a man purporting to offer them directions. Prior to being robbed, the couple handed the man a map which allowed him to reach inside the car and grab their belongings.

Before returning to Argentina, the wife identified the defendant in a photographic line-up and he was subsequently arrested. After booking him, the police discovered that the defendant's fingerprints matched the prints lifted from the map. After pleading not guilty to robbery, burglary, and assault and battery, the defendant filed a speedy trial demand. Thereafter, the State moved to allow production of material witnesses by satellite transmission.

At a pre-trial hearing, the State proffered that the victims were unavailable, because one witness suffered from cancer, both witnesses resided in Buenos Aires, Argentina and both were unwilling to return to Miami, Florida. Prosecutors made five-to-ten phone calls to persuade the witnesses to return to the United States, but to no avail. The State argued that it would be futile to serve the witnesses, because they resided beyond the jurisdiction of the court.

To remedy this problem, the State suggested a procedure in which the parties would be visible to one another through satellite testimony, where questions would be posed and answered contemporaneously. The transmission was compared to a talk-show satellite interview between people in different countries.

Defense counsel objected to the asserted unavailability and requested that the State provide evidence of the witness's cancer. The State, however, did not provide any evidence of the illness. The trial court determined that the satellite testimony was admissible as in-court testimony. Furthermore, the trial court determined that the trial must go forward in deference to the defendant's speedy trial demand.

The court developed the following procedural guidelines for the satellite testimony: (1) The defendant, counsel, judge, and jury were to be in the same room during the transmission; (2) The testimony in Argentina was to be simultaneously broadcast to the defendant in Miami; (3) The witnesses were to see the inquiring attorney and defendant at all times during the proceedings; (4) The deputy clerk in Miami was to administer an oath upon the witnesses in Argentina in the presence of the jury, judge, interpreter, clerk, and any other necessary court personnel; (5) The State stipulated that it would not attempt to have the testifying witness make an in-court identification of the defendant.

Two screens and two cameras were in the courtroom. One camera filmed the jury, and another filmed the remaining people in the courtroom, with the exception of the judge. Meanwhile, in Argentina, a screen and camera allowed the defendant in Miami and the witnesses in Argentina to observe each other.

At trial, minor technical difficulties developed which prevented the audio and video from operating simultaneously. At the close of the first witness's testimony, the judge agreed with defense counsel that the audio transmission was not synchronized with the witness's lip movement for a short period of time. Subsequently, during one witness's testimony, defense counsel objected because the witness glanced to the right of the camera. The trial court remedied the objection by ordering the camera to focus on both the witness and the in-room satellite technician. The jury convicted the defendant and the trial court sentenced the defendant. The defendant appeals his conviction.

II. HEARSAY

We first address the appellant's contention that the satellite testimony is hearsay. Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted," and is excludable because of its unreliability. § 90.801(1)(c), Fla. Stat. (1995). We find the satellite testimony reliable and admissible, because it is not hearsay testimony.

The satellite testimony is admissible, because it was offered in-court and the declarant was subject to cross-examination. The hearsay rule generally applies only to an out-of-court declarant who cannot be cross-examined at the time the testimony is given. See Anderson v. United States, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974); Topping v. People, 793 P.2d 1168 (Colo.1990)(defense cross-examined witness by telephone); Michael H. Graham, Handbook of Federal Evidence, § 801.1 (4th ed. 1996).

Here, the testimony was given, through the assistance of an official interpreter, in the presence of the judge, jury, defendant, counsel, clerk, and court reporter. Even though the witnesses' bodies were not physically in the courtroom, their testimony was nevertheless available. See Mason v. United States, 408 F.2d 903 (10th Cir.1969), cert. denied, 400 U.S. 993, 91 S.Ct. 462, 27 L.Ed.2d 441 (1971); Jori K. Mandelman, Comment, Telephonic Testimony: Talking with the Experts, 29 U.C. Davis L.Rev. 413 (1996); Ronald L. Carlson et al., Evidence in the Nineties 152 (3d ed. 1991); McCormick, Evidence § 253 at 130-31 (4th ed. 1992)(witnesses' testimony may be unavailable when they are on the witness stand because they are incompetent).

The reliability of the testimony is assured by the presence of an oath or affirmation. See Lombardi v. Flaming Fountain, Inc., 327 So.2d 39 (Fla. 2d DCA 1976). The defendant argues that the oath administered by the Florida clerk did not "subject the witnesses to perjury charges." We disagree and find that the manner of administering the oath was binding.

Oaths are binding if they convey the seriousness of the proceeding to the witness and assure the truthfulness of the testimony. ³ See § 90.605, Fla. Stat. (1995); Fed.R.Evid. 603. Moreover, courts have upheld the admissibility of depositions taken without an oath or affirmation in foreign countries which were subsequently used against criminal defendants in the United States. See, e.g., United States v. Casamento, 887 F.2d 1141 (2d Cir.1989), cert. denied, 493 U.S. 1081, 110 S.Ct. 1138, 107 L.Ed.2d 1043 (1990); United States v. Salim, 855 F.2d 944 (2d Cir.1988).

Further, the testimony is reliable because it was not transferred orally along a chain of people. The witnesses spoke directly to the jury, allowing the jury to observe the witnesses' demeanor. Moreover, the defendant had the opportunity to cross-examine the witnesses. Therefore, we conclude that satellite testimony is not hearsay because the witnesses spoke directly to the jury and the defendant in the courtroom.

III. CONFRONTATION CLAUSE

We next turn to whether the satellite testimony violated the Confrontation Clause of the Sixth Amendment, which guarantees criminal defendants the right to confront and cross-examine adverse witnesses. U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him."); Art. I, § 16, Fla. Const. See Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965)(the right to confront one's accusers is fundamental and is applicable to the states through the fourteenth amendment).

The Confrontation Clause requires the defendant to cross-examine the adverse witness face-to-face, thereby permitting the finder of fact to evaluate the witness's credibility. Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990); Delaware v. Fensterer, 474 U.S. 15, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985); Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970)(plurality opinion).

While it is well established that the right to confront one's accusers is a fundamental right, it is not an absolute right. Craig, 497 U.S. at 836, 110 S.Ct. at 3158-59 (stating that if the right to confrontation were absolute it would nullify most of the hearsay exceptions); Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895); State v. Ford, 626 So.2d 1338 (Fla.1993). The United States Supreme Court does not require actual face-to-face testimony in all trials. Testimony is admissible as long as it contains the essential components of face-to-face confrontation: testimony under oath, cross-examination, and the...