Hernandez v. State

• Decision Date: 27 April 2010
• Docket Number: No. 4D08-2872.,4D08-2872.
• Parties: John HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

31 So.3d 873

John HERNANDEZ, Appellant, v. STATE of Florida, Appellee.

No. 4D08-2872.

District Court of Appeal of Florida, Fourth District.

March 17, 2010.

Rehearing Denied April 27, 2010.

Samuel R. Halpern, Fort Lauderdale, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.

POLEN, J.

Appellant, John Hernandez, appeals his convictions and sentences for two counts of lewd or lascivious molestation and one count of lewd or lascivious exhibition. First, he contends that the trial court erroneously permitted the State to call witness Sherill Hernandez for the sole purpose of introducing otherwise inadmissible impeachment evidence, which highly prejudiced appellant. Second, appellant claims error by the trial court in assessing points for victim contact pursuant to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), where the verdict form did not have a separate interrogatory for sexual contact. Although we must reverse for a new trial on the first issue, we also address appellant's sentencing issue, should this matter arise again.

Appellant was charged in Counts 1 and 2 with the lewd or lascivious touching of P.M.'s breast/genital area, or the clothing covering the breast/genital area, on one or more occasions, between October 31, 1999 and March 31, 2004. Count 3 alleged that on one or more occasions during the same time frame, appellant exposed his genitals to P.M. in a lewd or lascivious manner. P.M. was twelve years old when the alleged conduct began.

Appellant's wife, Sherill Hernandez, was P.M.'s cousin. P.M. referred to Sherill and appellant as aunt and uncle. During the time period in question, P.M. and her two younger sisters would sleep over at the Hernandez home every other weekend or so. It was during these weekends that the alleged molestation occurred.

P.M. described two incidents. In the first, she was sleeping in her cousin Jonathan's bedroom on the floor. Appellant entered the room and asked P.M. if she was awake and wanted to watch a movie with him in the living room. P.M. said okay and went into the living room with appellant. When she got cold, appellant put her on his lap. Appellant began to push her down onto his lap and began to grind his penis against her "butt" and genital area. Appellant then lowered his pants, unbuttoned P.M.'s "jumper dress" and continued to grind against her. P.M. still had her shirt and underwear on. She could see appellant's penis. When P.M. cried, appellant stopped and put her back in the other room. Another time, appellant entered the bedroom where P.M. slept, picked her up off the bed, laid her down on the floor and then laid on top of her. Appellant then began to grind against P.M., kiss her neck and touch her breast. Initially, P.M. testified that appellant touched her "naked" breast. Later, she testified that appellant never touched her underneath her clothes, although he attempted to do so.

The incidents occurred in the early morning hours when the house was dark and the rest of the family was asleep. P.M. said she screamed during the incident(s), but "never ... to the point where the whole house could hear her." The incidents all blurred together and P.M. did not know how many times appellant did this to her. P.M. did not make the allegations until she was eighteen years old, two years after the incidents had stopped. She first told her cousin, Sashana,¹ and then later, her mother, while in the car with Sashana. Upon hearing the allegations, P.M.'s mother drove straight over to the Hernandez residence. When appellant came to the door, he got down on his knees, said, "I'm sorry," and asked for forgiveness. However, P.M.'s mother did not confront appellant with any specific allegations.

Later that day, P.M. went to the police station where she agreed to make a recorded phone call to appellant. The tape began with a conversation between appellant and P.M., and ended with a conversation between P.M. and Sherill Hernandez. Initially, the parties agreed that only the conversation between P.M. and appellant would be admitted as evidence. That section of the tape, which follows, was published at the end of the State's case, and without objection:

Unknown male: Hello.

P.M.: Hey, is Uncle John there?

Unknown male: One second.

P.M.: All right.

Male: Hello.

P.M.: Hello.

Male: Yeah.

P.M.: John?

Male: Yes.

P.M.: It's P.M.

Male: Hi, P.M.

Male: Forgive me.

P.M.: I can't.

Male: Huh?

P.M.: I can't. I just want to know why. Hello.

Male: I'm sorry, P.M.

P.M.: Uncle John, why?

Male: Can you, can you just forgive me?

P.M.: No, I just want to know why you were touching me? Why did you do this? Why?

Male: (No audible response).

P.M.: Can you please answer me? Hello. Answer me.

Male: I have to go.

P.M.: No, you don't have to go.

Male: I'm sorry, P.M.

P.M.: Hello.

Male: I'm sorry.

P.M.: I deserve the right to know why.

(Thereupon the tape was stopped).

After appellant spoke to P.M., the phone was passed to Sherill Hernandez. Sherill and P.M. then had a conversation, in which Sherill indicated that appellant had confessed to her.

The State called Sherill Hernandez over appellant's objection that the witness was being called for the sole purpose of impeaching her with the transcript of the controlled call. The defense advised that the witness had told defense counsel she was going to deny that appellant had ever confessed to her. The prosecutor responded: "I don't know what she's going to come in and say. My only good faith basis is that she is on tape making statements that her husband has admitted this molestation to her specifically." Defense counsel noted that the State had never deposed the witness.

Before Sherill testified, a proffer was taken and the tape was played for her with the aid of a transcript. Sherill recognized her voice on the tape and recalled part of the phone call, but could not understand what she was saying because "it was very difficult to hear."

Later, when she testified before the jury, Sherill denied that appellant had admitted to molesting P.M. and said that neither the tape nor the transcript refreshed her memory. When asked whether she recalled telling P.M. that appellant told her he did these things because he "wasn't psychologically well," Sherill said: "I may have said it, I don't remember." She later said, "he never said that." Sherill said she must have been referring to the person that molested her (Sherill) as a child. After the tape was played for her again, outside of the jury's presence, Sherill testified that hearing her voice did not refresh her recollection about what was said in the conversation.

After extensive argument and objections, the court ruled that Sherill and P.M.'s taped conversation would be admitted as past recollection recorded. Appellant objected to the tape being admitted under that exception to the hearsay rule, citing a lack of predicate or foundation.

After Sherill's testimony, the conversation in its entirety was published to the jury:

Female: Hello.

P.M.: Hello?

Female: Hello.

P.M.: Hello?

Female: P.M.

P.M.: Hi.

Female: I'm sorry, baby.

P.M.: No, no, no. From when I was little. I was twelve years old and you knew.

Female: I did not know, I had no idea.

P.M.: He's your husband.

Female: I did not know.

P.M.: I'm your family, not him, me.

Female: I know.

P.M.: I'm blood, you're married to him.

Female: I know baby. I did not know, P.M. I did not know. I'm so sorry.

P.M.: I will never forgive nobody, never. The stuff I've been through, never. Can you please tell me, Uncle John?

Female: (Inaudible).

P.M.: Is he on the phone?

Female: No, he's not in the room.

P.M.: Can you just put him on the phone? I just want to know why. Hello.

Female: P.M.

P.M.: I just want to know why he touched my vagina, my breasts and he made me sit on him, can you, just please. I'm at an age, I'm grown, can somebody please—

Female: I know, I asked him why he did all of that, and that's what he said, psychologically he wasn't well.

P.M.: Well, him and his psychological problems need to tell me why he did this to me.

Female: P.M. he said psychologically he wasn't well and (inaudible) he's sorry.

P.M.: Auntie, I have to talk to him, please.

Female: (Inaudible) P.M., I'm sorry, I had no—if I knew I would have done the same thing, some relative or cousin did the same thing, I understand what you're going through.

P.M.: Okay, Auntie, are you going to put him on the phone?

Female: Are you tape recording this, P.M.?

P.M.: No.

Female: Where are you calling from? P.M.: I'm at my friend's house.

Female: (Inaudible) I know, I just (inaudible) I'm in so much pain right now. Travis, please don't pick up the phone.

P.M.: Well, I tried, all I wanted was an answer, so, I—

Female: I know—

P.M.: I don't want to hear it from you, you didn't do it, he did it, I wanted to hear it from him. Well, I got to go.

Female: P.M.

P.M.: I'm sorry, I got to go.

Female: P.M. P.M.

P.M.: Bye.

(Thereupon, the tape was stopped.)

Appellant argues that the trial court reversibly erred in allowing the State to call Sherill Hernandez as a witness for the sole purpose of impeaching her with this inadmissible hearsay evidence. The State responds that the taped statement was admissible as a past recollection recorded, and alternatively, any error was harmless. We agree with appellant and reverse.

The standard of review on the admission of evidence is abuse of discretion as limited by the rules of evidence. Hudson v. State, 992 So.2d 96, 107 (Fla.2008). Unless it falls within a statutory exception, hearsay evidence is inadmissible. See § 90.802, Fla. Stat. (2008).

Section 90.803(5), Florida Statutes (2008), provides an exception to the hearsay rule when a witness cannot recall matters of which he or she previously had knowledge.² If the proper foundation is laid, a tape-recorded statement may qualify as a recorded recollection. See Montano v. State, 846...