Harrell v. State

• Decision Date: 23 April 1998
• Docket Number: No. 90114,90114
• Parties: 23 Fla. L. Weekly S236 David HARRELL, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 1364

709 So.2d 1364

23 Fla. L. Weekly S236

David HARRELL, Petitioner, v. STATE of Florida, Respondent.

No. 90114.

Supreme Court of Florida.

April 23, 1998.

Bennett H. Brummer, Public Defender, and Donald Tunnage, Assistant Public Defender, Eleventh Judicial Circuit, Miami, for Petitioner.

Robert A. Butterworth, Attorney General, and Richard L. Polin, Assistant Attorney General, Miami, for Respondent.

David Henson of Kirkconnell, Lindsey, Snure and Henson, P.A., Winter Park, and Elliot H. Scherker of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., Miami, for Florida Association of Criminal Defense Lawyers, Amicus Curiae.

HARDING, Justice.

We have for review Harrell v. State, 689 So.2d 400 (Fla. 3d DCA 1997), in which the Third District Court of Appeal certified the following question as being one of great public importance:

DOES THE ADMISSION OF TRIAL TESTIMONY THROUGH THE USE OF A LIVE SATELLITE TRANSMISSION VIOLATE THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION, OR ARTICLE I, SECTION 16 OF THE FLORIDA CONSTITUTION, WHERE A WITNESS RESIDES IN A FOREIGN COUNTRY AND IS UNABLE TO APPEAR IN COURT?

Id. at 406. We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution. We answer the question in the negative.

David Harrell was charged with robbery and burglary of a conveyance. The facts of the case are as follows. Pedro Mielniczuk and Perla Scandrojlio, a married couple from Argentina, were on vacation in Florida. The couple was robbed near the Miami Airport while attempting to return their rental car. The couple was lost and stopped to ask a man for directions. After being handed a map, the man reached into the car and grabbed the couple's belongings. Before returning to Argentina, Scandrojlio identified Harrell in a photographic line-up. Harrell's fingerprints also matched the prints lifted from the couple's map. Harrell was subsequently arrested and tried for the crime.

Before the trial, the State requested to introduce the testimony of the two victims via satellite transmission. The State argued that satellite transmission was necessary because the victims were unable to be physically present in the courtroom, both because of the distance between the United States and Argentina and because of health problems that Scandrojlio was experiencing. Over Harrell's objection, the trial judge agreed to allow the testimony via satellite.

The following procedure was used at trial. There were two cameras in the courtroom in Miami. One camera filmed the jury and another filmed the attorneys and the defendant. The judge was not filmed. There was also a screen in the courtroom which allowed the people in the courtroom to see the witness in Argentina. In Argentina, there was a camera which filmed the witness and a screen which allowed the witness to see the courtroom in Miami. The system permitted the defendant in Miami and the witness in Argentina to observe each other. The oath was administered to each witness by a deputy clerk in Miami, in the presence of the jury and the judge. Because the witnesses did not speak English, an interpreter was used.

Some problems occurred during the satellite transmission. The visual transmission of the victims' testimony was not simultaneous with the audio, causing a split-second delay between what was said and what was seen. Further, while Scandrojlio was testifying, she repeatedly looked at an individual off the screen. The individual off the screen was Maria Alvarez, who was the manager of the broadcast studio in Argentina. Initially, the cameras focused only on Scandrojlio and not on Alvarez. This problem was corrected and the camera focused on both individuals.

Harrell was subsequently found guilty and he appealed his conviction to the Third District Court of Appeal. The district court upheld the conviction in Harrell v. State, 689 So.2d 400 (Fla. 3d DCA 1997). The district court concluded that the procedure did not violate the Confrontation Clause and certified the question to this Court.

The issues for this Court on appeal are whether or not testimony via satellite in a criminal case violates the Confrontation Clause and, if so, whether the satellite procedure constitutes a permissible exception. This question is one of first impression for our Court. However, we are guided by other cases dealing with the Confrontation Clause in analogous situations (i.e., closed-circuit television) that were decided by this Court and the United States Supreme Court.

The Sixth Amendment of the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with witnesses against him...." Similarly, article I, section 16(a) of the Florida Constitution states: "In all criminal prosecutions the accused ... shall have the right ... to confront at trial adverse witnesses...." This concept of confrontation has been a cornerstone of Western society for a number of centuries. The Bible quotes the Roman Governor Festus as saying, "It is not the manner of the Romans to deliver any man up to die before the accused has met his accuser face to face, and has been given a chance to defend himself against the charges." Coy v. Iowa, 487 U.S. 1012, 1015-16, 108 S.Ct. 2798, 2800, 101 L.Ed.2d 857 (1988) (quoting Acts 25:16 and a statement made while the Apostle Paul was a prisoner). Many argue ¹ that the founders of this country wanted to include the Confrontation Clause in the Bill of Rights to prevent against ex parte affidavits, which allowed individuals to be convicted without ever laying eyes on their accusers. See California v. Green, 399 U.S. 149, 156, 90 S.Ct. 1930, 1934, 26 L.Ed.2d 489 (1970). ² Providing criminal defendants the opportunity to confront their accusers imparts a component of reliability on the judicial process.

In addition to allowing for face-to-face confrontation, the Confrontation Clause serves other important interests. As the United States Supreme Court stated in Mattox v. United States:

The primary object of the [Confrontation Clause] was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.

156 U.S. 237, 242-43, 15 S.Ct. 337, 339-40, 39 L.Ed. 409 (1895). Thus, the Confrontation Clause also ensures (1) that the witness will give the testimony under oath, impressing upon the witness the seriousness of the matter and protecting against a lie by the possibility of penalty of perjury, (2) that the witness will be subject to cross-examination, and (3) that the jury will have the chance to observe the demeanor of the witness, which aids the jury in assessing credibility. See Maryland v. Craig, 497 U.S. 836, 851, 110 S.Ct. 3157, 3166, 111 L.Ed.2d 666 (1990).

Although the Confrontation Clause guarantees a criminal defendant the right to physically confront accusers, this right is not absolute. See id. at 849-51, 110 S.Ct. at 3165-66. There are certain exceptions where a defendant's right of face-to-face confrontation will give way to "considerations of public policy and the necessities of the case." Id. at 849, 110 S.Ct. at 3165 (quoting Mattox, 156 U.S. at 243, 15 S.Ct. at 340). However, such exceptions are only permitted when the reliability of the testimony is otherwise assured. See Craig, 497 U.S. at 850, 110 S.Ct. at 3166. Reliability can be exhibited through the other three elements of confrontation--oath, cross-examination, and observation of the witness's demeanor. Id. at 851, 110 S.Ct. at 3166.

The State is urging this Court to conclude that the satellite procedure used in this case is the equivalent of physical, face-to-face confrontation. We decline to make such a finding. But see United States v. Gigante, 971 F.Supp. 755, 759 (E.D.N.Y.1997) ("[T]he [two-way closed circuit television procedure] proposed by the government in this case satisf[ies] fully the requirements of the Constitution...."). At its essence, a trial in 1791, the year the Sixth Amendment was ratified, involved attorneys and parties, witnesses, a jury, and a judge, all of whom physically appeared in a courtroom. The same holds true for a trial today. We are unwilling to develop a per se rule that would allow the vital fabric of physical presence in the trial process to be replaced at any time by an image on a screen. Perhaps the "virtual courtroom" will someday be the norm in the coming millennium; for now, we do not conclude that virtual presence is the equivalent of physical presence for the purposes of the Confrontation Clause.

Therefore, the satellite procedure can only be approved as an exception to the Confrontation Clause. In order to qualify as an exception, the procedure must (1) be justified, on a case-specific finding, based on important state interests, public policies, or necessities of the case and (2) must satisfy the other three elements of confrontation--oath, cross-examination, and observation of the witness's demeanor. See Craig, 497 U.S. at 849-51, 110 S.Ct. at 3165-66.

The first part of our analysis begins with the public policy considerations and necessities of this case and whether these circumstances were enough to justify an exception to the Confrontation Clause. In making this determination, we look to the analogous case of Glendening v. State, 536 So.2d 212 (Fla.1988). In Glendening, this Court held that it was not a violation of the Confrontation Clause to allow the introduction of an allegedly abused child's videotaped testimony. We recognized the important State interest and public...