Hopkins v. State
| Decision Date | 23 July 1992 |
| Docket Number | No. 91-590,91-590 |
| Parties | 17 Fla. L. Week. D1774 John Harvey HOPKINS, Sr., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Ronald W. Johnson, Kinsey, Troxel, Johnson & Walborsky, P.A., Pensacola, for appellant.
Robert A. Butterworth, Atty. Gen., and Amelia L. Beisner, Asst. Atty. Gen., Tallahassee, for appellee.
Following a jury trial, the appellant was adjudicated guilty of three counts of sexual battery upon a child less than 12 years old and one count of handling or fondling the same child in a lewd and lascivious manner. Raising numerous issues, he appeals his conviction and sentences for these offenses. We conclude that the appellant failed to preserve his arguments concerning the child victim's testimony via closed circuit television and the court's admission of her out-of-court statements. We reject the appellant's other claims of error because we find them to be lacking in merit, not preserved for review or merely harmless. We affirm the appellant's conviction and sentences and certify a question to the supreme court.
Section 92.54, Florida Statutes (1989), permits a trial judge to order that the testimony of a child victim or witness to a sexual offense be taken outside of the courtroom and shown to the jury by means of closed circuit television. Such an order is permissible only upon motion and after an in camera hearing has persuaded the judge that "there is a substantial likelihood that the child will suffer at least moderate emotional or mental harm if required to testify in open court or that such victim or witness is unavailable as defined in section 90.804(1)." Sec. 92.54(1), Fla.Stat. Section 92.54(5) requires the judge to detail the reasons for his ruling with these words: "The court shall make specific findings of fact, on the record, as to the basis for its ruling under this section."
Pursuant to section 92.54, the prosecutor sought to present the trial testimony of the alleged child victim via closed circuit television. At the hearing on the motion, the prosecutor presented testimony by the child's mother and by a psychologist, Michael DeMaria. At the conclusion of the hearing, the judge granted the prosecutor's motion, saying:
I'm going to take and make a finding of fact that based upon the testimony that I heard from the mother, based upon the testimony that I heard from Dr. DeMaria, that there is a substantial likelihood and even a very large percentage when you talk about substantial likelihood that the child in this case will suffer more than moderate emotional or mental harm if required to testify in open court. I'm making a finding of fact that the child will suffer substantial and high emotional or mental harm if required to testify in court based upon the testimony of the natural mother and also Dr. DeMaria. And I want to make a specific finding of fact of that and I would like to adopt and ratify and make my finding of fact the testimony of the natural mother and the testimony of Dr. DeMaria's direct examination.
Thereafter, the judge entered a written order granting the prosecutor's motion and attached to it a transcript of the testimony given by the mother and DeMaria at the hearing.
The trial judge's recitation of the statutory standard and explanation that his ruling was based upon the testimony at the hearing might not have satisfied section 92.54(5)'s requirement of specific findings as to the basis for his ruling. In Jaggers v. State, 536 So.2d 321 (Fla. 2d DCA 1988), the state had filed a motion under section 92.53, Florida Statutes, to videotape the testimony of two children outside the presence of the defendant and use the videotape at trial in lieu of the children's live testimony. Section 92.53 sanctions such a procedure, but, as in section 92.54(5) at issue here, the trial court must "make specific findings of fact, on the record, as to the basis for its ruling." Section 92.53(7), Fla.Stat. Just as in the case before us, at the conclusion of the hearing in Jaggers's case, the judge granted the state's motion, ruled that there was a substantial likelihood that the children would suffer at least moderate emotional trauma or mental harm if they were required to testify in open court, and explained that his decision was based on hearing testimony of the children's guardian ad litem. Jaggers, 536 So.2d at 324. The appellate court reversed Jaggers's conviction because the trial judge had not made the findings of fact required under section 92.53(7). Significantly, the court observed that the statute would be unconstitutional without the case-specific findings mandated by section 92.53(7). Specifically, the court said:
A review of the record reflects that the trial court did not make the required findings of fact under section 92.53(7) necessary to support its determination that the two child witnesses, whose testimonies were video taped, would suffer at least moderate emotional or mental harm if they were required to testify in open court. Such a case-specific finding mandated by section 92.53 is precisely what renders that statute constitutional, because the statute is closely tailored to protect the child victim only in those particular circumstances were [sic] it is deemed necessary.
Jaggers, 536 So.2d at 329. In Leggett v. State, 565 So.2d 315, 318 (Fla.1990), the supreme court approved this language from Jaggers and reversed an attempt by this court in Leggett v. State, 548 So.2d 249 (Fla. 1st DCA 1989), to limit Jaggers to cases in which the record reveals inadequate evidentiary support for the judge's ruling.
Section 92.54, like its companion, section 92.53, impacts a defendant's right to a "face-to-face meeting with witnesses appearing before the trier of fact," a right which is guaranteed by the Sixth Amendment's Confrontation Clause. Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). This right to a face-to-face confrontation with witnesses is not absolute, however, and it may give way "where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured." Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). Thus, when a trial judge makes a case-specific finding that a child witness would be traumatized by testifying in the presence of the defendant, the state's interest in protecting the child from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits the child to testify at trial in the absence of a face-to-face confrontation with the defendant. Maryland v. Craig, at 855-56, 110 S.Ct. at 3169, 111 L.Ed.2d at 685. The case-specific findings required by section 92.54(5) serve the same purpose as those required by section 92.53(7); they render the statute constitutional and the consequent denial of the defendant's right to face-to-face confrontation permissible.
The state argues that we need not decide whether the trial court's findings were sufficient, because the issue has not been preserved for appellate review. The only record objection raised by the appellant's counsel prior to the closed circuit testimony was the following:
I would like to renew my previous objection objecting to this witness be [sic] allowed to testify outside of the presence of the jury and outside of the presence of Mr. Hopkins.
The state acknowledges that this objection was "couched in terms of a confrontation rights argument," but the state contends that it was not sufficient to preserve the issue of whether the trial court's findings satisfied the requirements of section 92.54(5). According to the state, preservation of the issue is accomplished by specifically bringing the deficiency of the factual findings to the attention of the trial court. We hold that the very general objection raised by the appellant's counsel was not sufficient to preserve the issue for review in this court.
In so holding, we rely upon Sanders v. State, 568 So.2d 1014 (Fla. 3d DCA 1990), wherein the court held that it was not required to decide whether the trial judge's findings contained the specificity required by section 92.54(5), because the findings were not contemporaneously challenged for competency or sufficiency. See also Jones v. State, 582 So.2d 110 (Fla. 3d DCA 1991); Russell v. State, 572 So.2d 940, 942 n. 3 (Fla. 5th DCA 1990); and Stone v. State, 547 So.2d 657, 660 (Fla. 2d DCA 1989), all requiring a similar objection in order to preserve an issue for appeal under a closely analogous provision in section 90.803(23), Florida Statutes.
Our holding also appears to be required by our decision in Jackson v. State, 456 So.2d 916 (Fla. 1st DCA 1984), wherein Jackson appealed his conviction of vehicular homicide. Jackson challenged the admissibility of the results of a blood test which revealed that he was under the influence of alcohol shortly after he was involved in a fatal automobile accident. We dealt with Jackson's challenge as follows:
Appellant also argues that the blood test was inadmissible because it was not conducted strictly in accordance with the procedures required by statute and regulations. We disagree, but find it necessary to discuss only one ground argued by appellant, i.e., that the blood test was inadmissible because the state failed to show that the individual who analyzed the blood specimen, Mr. Peter Lardizabel, held the statutorily required permit from the Department of Health and Rehabilitative Services. Sec. 316.1933(2)(b), Fla.Stat. (1982 Supp.). After the state had qualified Mr. Lardizabel as an expert and had offered the blood test results into evidence, counsel for appellant made a general objection to the admissibility of the blood test results because "the proper predicate" had not been laid...
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Feller v. State, 91-1062
...to a new trial by virtue of the trial court's failure to make findings with the specificity required by section 92.53. Hopkins v. State, 608 So.2d 33 (Fla. 1st DCA), rev. granted, No. 80,514, --- So.2d ---- (Fla. Sept. 24, 1992); Sanders v. State, 568 So.2d 1014 (Fla. 3d DCA 1990), rev. den......