Hutchins v. State, 72--1493

• Decision Date: 06 November 1973
• Docket Number: No. 72--1493,72--1493
• Citation: 286 So.2d 244
• Parties: Victor Edward HUTCHINS, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 244

286 So.2d 244

Victor Edward HUTCHINS, Appellant, v. The STATE of Florida, Appellee.

No. 72--1493.

District Court of Appeal of Florida, Third District.

Nov. 6, 1973.

Rehearing Denied Dec. 20, 1973.

Phillip Hubbart, Public Defender, and Mark King Leban, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and William L. Rogers, Asst. Atty. Gen., for appellee.

Before CHARLES CARROLL, HENDRY and HAVERFIELD, JJ.

CARROLL, Judge.

The appellant was informed against, tried by a jury and convicted of unlawful possession of a narcotic drug, a felony. See §§ 398.03 and 398.22, Fla.Stat., F.S.A. The sentence imposed was that the defendant be imprisoned in the Dade County jail for a period of ten months, and Thereafter to be on probation for a period of three years. The defendant filed this appeal from the judgment and sentence.

By a pretrial order reciting that it had been ascertained by the court that Melvin Brewer, a laboratory technician whose testimony was desired to be presented by the state at trial, would be 'unavailable to appear at the Courthouse for the taking of his testimony in the above styled cause on the date set for trial,' the court made provision for the testimony of said witness to be obtained and preserved by being taken and recorded on video tape. The order included details respecting the taking of the deposition by video tape, with direction that it be so taken in duplicate in order for a copy to be made available to counsel for the defendant, with provision for presence of the defendant and his counsel, and directions for the preservation and security of the master tape for presentation at trial.

Objections thereto by the defendant were considered and denied. They did not include a challenge or objection to the finding as to unavailability of the witness for testimony at trial.

The provision for the commission for the taking and preservation of the testimony of the witness was made pursuant to Rule 3.190(j) Cr.P.R., 33 F.S.A. In subparagraph (5) thereof it is stated that, except as otherwise provided for, the rules governing the taking and processing of oral depositions in civil actions shall apply in criminal cases. Civil Procedure Rule 1.310, 30 F.S.A., dealing with depositions upon oral examination, in subsection (c) (relating to record of examination) provides: 'The testimony shall be recorded verbatim stenographically or by mechanical means and transcribed unless the parties agree otherwise.'

It will be noted that while the provision last referred to authorizes the deposition testimony of a deponent to be taken or recorded by mechanical means, the rule appears to contemplate that the record thereof when so taken will be transcribed (for subsequent use at trial as if recorded stenographically). The difference in the instant case is that the deposition testimony taken by video tape was not submitted at trial in transcribed form, but was presented in the form of the video tape recording.

The appellant contends such video tape presentation of the evidence was prejudicial error because there was no authority or precedent for the preservation and presentation of the testimony by video tape, and because by its use the defendant was deprived of his right to confront the witness at time of trial. In response thereto the state argues that notwithstanding absence of express precedent or authority to present the testimony in that manner, no harmful error resulted...