Hernandez v. State

• Decision Date: 26 January 2007
• Docket Number: No. 2D05-4048.,2D05-4048.
• Citation: 946 So.2d 1270
• Parties: Javier HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

946 So.2d 1270

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

No. 2D05-4048.

District Court of Appeal of Florida, Second District.

January 26, 2007.

Jorge Leon Chalela, Tampa, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Tiffany Gatesh Fearing, Assistant Attorney General, Tampa, for Appellee.

WALLACE, Judge.

Javier Hernandez appeals his judgment and sentence for sexual battery by a person less than eighteen years of age upon a person less than twelve years of age, section 794.011(2)(b), Florida Statutes (2004). The young victim of the alleged sexual battery and her parents were unavailable at trial and Mr. Hernandez did not have a prior opportunity to cross-examine them. Over timely defense objection, the trial court permitted a nurse who was a member of the local "Child Protection Team" (CPT) to testify at trial concerning statements about the alleged sexual battery made by the child and her parents at an examination arranged by a sheriff's deputy. Because the nurse was acting in concert with law enforcement in questioning the child and her parents to gather information for a potential criminal prosecution, we conclude that their statements to the nurse were testimonial under Crawford v. Washington¹ and Davis v. Washington.² We also hold that the trial court erred in admitting Mr. Hernandez's confession into evidence under section 92.565, Florida Statutes (2004), because it failed to make the specific findings of fact required by the statute. For these reasons, we reverse Mr. Hernandez's judgment and sentence, and we remand this case for a new trial.

I. THE FACTS

The child who was the victim of the alleged sexual assault resided in Tampa with her parents. Mr. Hernandez and his sister lived in the same residence as the child and her parents. Both Mr. Hernandez and the child's family had come to the United States from Mexico. The child spoke some English, but Mr. Hernandez and the child's parents apparently spoke little or none.

In the early morning hours of November 4, 2004, Deputy Steven Connors of the Hillsborough County Sheriff's Office was dispatched to the residence that Mr. Hernandez shared with the child and her parents. Deputy Connors did not speak Spanish, and he was unable to converse with the child's parents. Deputy Connors called for a Spanish-speaking deputy, and Deputy Ricardo Hernandez arrived at the residence. After Deputy Hernandez spoke with the parents in Spanish, Deputy Connors contacted the CPT to arrange for a sexual assault examination to be performed on the child. Deputy Hernandez then escorted the child and her parents to Tampa General Hospital (TGH) where the examination was to take place.

At TGH, Deputy Hernandez, the child, and her parents met with Sandra Shulman. Ms. Shulman was employed as an advanced registered nurse practitioner with the CPT at TGH. Ms. Shulman performed sexual assault examinations on children on a regular basis. She also regularly testified in court as an expert in the area of medical examinations of children who have been the victim of a sexual assault.

Ms. Shulman began by speaking with Deputy Hernandez to "just get basic information." She then spoke with the parents to obtain the child's medical history. Although the record is silent on this point, one might infer that Deputy Hernandez acted as an interpreter for Ms. Shulman and the parents. After speaking with the parents, Ms. Shulman interviewed the child to obtain a history. Ms. Shulman began the process of taking the history by asking the child open-ended questions about what had happened to her. Next, Ms. Shulman used a standard questionnaire to ask the child about a series of specific acts of sexual abuse to which the child was asked to answer "Yes," "No," or otherwise respond. After taking the history, Ms. Shulman performed a physical examination of the child. The significant findings on the physical examination included a tissue tear at the posterior fourchette extending down to the perineum. At the time Ms. Shulman made her initial examination of the child, this tissue tear was already healing. On a second examination of the child conducted five days later, Ms. Shulman found that the tear had completely healed.

The parents informed Ms. Shulman that the alleged incident had occurred on October 28, 2004, one week earlier. Because of the lapse of time between the date of the alleged incident and the date of the examination, Ms. Shulman did not collect any samples or specimens for forensic purposes. She did obtain specimens to test for the presence of sexually transmitted diseases. There is no indication in the record that Ms. Shulman treated the child for her injuries or that she referred the child to a physician for further examination or treatment.

After Ms. Shulman had completed her examination, Deputy Hernandez escorted the child and her parents back to their residence. He then went to the district office where Mr. Hernandez had been taken. Upon his arrival at the district office, Deputy Hernandez acted as an interpreter for Detective Thomas Pettis. Detective Pettis had been assigned to interview Mr. Hernandez. Deputy Hernandez gave Mr. Hernandez the Miranda³ warning in Spanish. Mr. Hernandez indicated that he understood his rights and was willing to speak to Detective Pettis. But soon after the interview began, the deputies realized that Mr. Hernandez was only sixteen years old. Accordingly, they discontinued the interview until his adult sister arrived at the district office. Detective Pettis then proceeded with the interview in the presence of Mr. Hernandez's sister. In the meantime, a shift change occurred, and Deputy Carlos Cuevas assumed the responsibility for interpreting.

Mr. Hernandez made an oral statement about the incident, which he said had occurred about eight days earlier. In his oral statement, Mr. Hernandez admitted that he had penetrated the child's vagina with his penis. At the request of Detective Pettis, Mr. Hernandez also wrote a statement in Spanish describing the incident. Once Mr. Hernandez had made his oral and written statements, Detective Pettis called the CPT medical clinic and inquired about the results of the sexual assault examination that had been performed earlier on the child. Based on the results of Ms. Shulman's examination, Detective Pettis charged Mr. Hernandez with the commission of a sexual battery by a person less than eighteen years of age upon a person less than twelve years of age.

II. PRETRIAL MATTERS

After these events, the child and her parents vacated their residence and could not be located. The state attorney's office assigned an investigator to look for the child and her parents. The investigator began work on the assignment on January 31, 2005, but he was unable to find them. He surmised that the child and her parents "could possibly be in Mexico."

Prior to trial, the State filed a motion to determine the admissibility in evidence of Mr. Hernandez's statements under section 92.565. In its motion, the State alleged that the child had "left the country" and that Mr. Hernandez's "statements are corroborated by the physical findings of Sandi [sic] Shulman, the nurse practitioner that examined the victim shortly after the incident." In its motion, the State sought the entry of an order permitting it to introduce Mr. Hernandez's oral and written statements into evidence at trial without proof of the corpus delicti of the alleged sexual battery.

The case went to trial in June 2005. On the day the trial began, the trial court heard and denied Mr. Hernandez's motion to suppress his statements. After jury selection was completed, the trial court took up what the prosecutor referred to as the "confession without corpus motion." In support of the motion, the State offered Ms. Shulman's deposition testimony as independent evidence that corroborated Mr. Hernandez's statements. The defense had stipulated to the use of Ms. Shulman's deposition in lieu of live testimony only for the purposes of the motion. Without taking any additional evidence, the trial court found that Mr. Hernandez's statements were trustworthy. The trial court based its ruling exclusively on what it had "heard this morning in the motion to suppress." The trial court expressly disclaimed any reliance on Ms. Shulman's deposition as a basis for granting the motion. The trial court also found that "the State is unable to show the existence of each element of the crime because we don't have a victim who has testified." Based on these two findings, the trial court granted the State's motion.

III. THE TRIAL

At Mr. Hernandez's trial, there was no physical evidence that linked him to the alleged sexual battery. Mr. Hernandez did not take the stand in his own defense. The trial was relatively brief. Seven witnesses testified for the State. The four deputies told the jury about their respective roles in the investigation. Deputy Hernandez and Deputy Cuevas testified about the oral and written statements that Mr. Hernandez had made. A Spanish interpreter translated Mr. Hernandez's written statement from Spanish into English and read it for the jury. The investigator for the state attorney's office who had been assigned to locate the child and her parents testified about his unsuccessful efforts to locate them. In the child's absence, Ms. Shulman became the State's main witness to the facts of the case.

Ms. Shulman told the jury about her role on the CPT and the methods she generally employs to perform examinations on child victims of sexual assaults. Ms. Shulman also related the findings she had made upon her physical examination of the child. Based on these findings, Ms. Shulman opined that the child had experienced genital trauma that was consistent with her history of sexual abuse. Ms. Shulman was not asked—and she did not offer—an opinion on whether the child's injuries were also inconsistent with an accidental injury. Ms. Shulman also...