Hopkins v. State, No. 80514

• Court: United States State Supreme Court of Florida
• Writing for the Court: HARDING; BARKETT
• Citation: 632 So.2d 1372
• Parties: 19 Fla. L. Weekly S42 James Harvey HOPKINS, Petitioner, v. STATE of Florida, Respondent.
• Docket Number: No. 80514
• Decision Date: 20 January 1994

Page 1372

632 So.2d 1372 19 Fla. L. Weekly S42 James Harvey HOPKINS, Petitioner,
v.
STATE of Florida, Respondent. No. 80514. Supreme Court of Florida. Jan. 20, 1994.
Rehearing Denied March 31, 1994.

Page 1373

Ronald W. Johnson, Kinsey, Troxel, Johnson & Walborsky, P.A., Pensacola, for petitioner.

Page 1374

Robert A. Butterworth, Atty. Gen., James W. Rogers, Bureau Chief and Amelia L. Beisner, Asst. Atty. Gen., Tallahassee, for respondent.

HARDING, Justice.

We have for review Hopkins v. State, 608 So.2d 33 (Fla. 1st DCA 1992), in which the First District Court of Appeal certified the following question as being one of great public importance:

Does a trial court commit fundamental error by failing to make the findings required by section 92.54(5), Florida Statutes, prior to allowing a child witness to testify by means of closed circuit television?

Id. at 37. We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution, and answer the question in the negative.

James Harvey Hopkins was charged with three counts of sexual battery on a child less than twelve years old and one count of lewd and lascivious assault on the same child. Pursuant to section 92.54, Florida Statutes (1989), ¹ the State filed a motion to present the trial testimony of the five-year-old victim by means of closed circuit television. At the hearing on the motion, the State presented testimony by the child's mother and a psychologist. The mother expressed concern for the child's emotional welfare if required to testify in front of Hopkins: "She probably thinks that he'd tried [sic] to hurt her if she said anything. I don't think she would talk." Based upon his examinations and observations, the psychologist gave more detailed conclusions regarding harm to the child. In ruling that the child could testify via closed circuit television, the trial court made the following findings:

[T]he Court makes a finding of fact that based on the testimony of ... the mother of the child, and Dr. Michael DeMaria, there is a substantial likelihood that the child ... will suffer more than moderate emotional harm if she were required to testify in open court in the presence of the defendant.

And further the Court hereby adopts and [ratifies] as findings of fact the Direct Examination Testimony of [the mother] and Dr. Michael DeMaria, a copy of which is attached.

On appeal, Hopkins argued that the trial court's findings did not satisfy the statutory requirement that "[t]he court shall make specific findings of fact, on the record, as to the basis for its ruling under this section." Section 92.54(5), Fla.Stat. (1989). The district court found that the issue was not preserved for appellate review as Hopkins' counsel failed to make a specific objection. Hopkins, 608 So.2d at 37. However, recognizing that no objection is required when a trial court commits fundamental error, the district court certified the issue of whether failure to make the findings required by section 92.54(5) constitutes fundamental error.

Fundamental error is "error which goes to the foundation of the case or goes to the merits of the cause of action." Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970). If a procedural defect is declared fundamental error, then the error can be considered on appeal even though no objection was raised in the lower court. Id.; Ray v. State, 403 So.2d 956, 960 (Fla.1981). However, this Court has cautioned that the fundamental error doctrine should be used "very guardedly." Sanford, 237 So.2d at 137. "[F]or an error to be so fundamental that it can be raised for the first time on appeal, the error must be basic to the judicial decision under review and equivalent to a denial of due process." State v. Johnson, 616 So.2d 1, 3 (Fla.1993). We find that failure to make the statutory findings required by section 92.54

Page 1375

does not rise to this level. Thus, any shortcomings in the statutory findings must be brought to the trial court's attention by an objection in order to preserve the issue for appellate review.

In the instant case, the district court held that Hopkins' "very general objection," which was " 'couched in terms of a confrontation rights argument,' " was not sufficient to preserve for review the issue of whether the trial court's findings satisfied the requirements of section 92.54(5). Hopkins, 608 So.2d at 36 (quoting the State's characterization of the objection). Prior to the child's testimony by closed circuit television, Hopkins' defense counsel made the following objection:

I would like to renew my previous objection objecting to this witness be[ing] allowed to testify outside of the presence of the jury and outside of the presence of Mr. Hopkins. And also object to [our] not being present to the jury to receive their reactions at the time that they view this testimony outside the presence--

Under the circumstances of this case, we find that this objection properly preserved the issue for appellate review. Although the objection did not specifically address the sufficiency of the factual findings under section 92.54, it properly raised the issue of Hopkins' constitutional right "to be confronted with the witnesses against him." U.S. Const. amend. VI; see also art. I, Sec. 16(a), Fla. Const. ("In all criminal prosecutions the accused ... shall have the right ... to confront at trial adverse witnesses...."). As the district court correctly noted, the procedure authorized by section 92.54 impacts a criminal defendant's right to "a face-to-face meeting with witnesses appearing before the trier of fact," a right guaranteed by the Sixth Amendment's Confrontation Clause. Coy v. Iowa, 487 U.S. 1012, 1016, 108 S.Ct. 2798, 2800, 101 L.Ed.2d 857 (1988). However, the right to face-to-face confrontation is not absolute and may give way "where denial of such confrontation is necessary to further an important public policy and ... where the reliability of the testimony is otherwise assured." Maryland v. Craig, 497 U.S. 836, 850, 110 S.Ct. 3157, 3166, 111 L.Ed.2d 666 (1990).

While the use of closed circuit television infringes upon the confrontation right, this Court has determined that " 'the defendant's right to confront his accusers must give way to the State's interest in sparing child victims of sexual crimes the further trauma of in-court testimony.' " Glendening v. State, 536 So.2d 212, 217 (Fla.1988) (finding no violation of guarantee of right to confrontation...