James v. State

• Citation: 400 So.2d 571
• Decision Date: 22 October 1980
• Docket Number: No. 79-11,79-11
• Parties: Richard Sylvester JAMES, Appellant, v. STATE of Florida, Appellee. /T4-352.
• Court: Court of Appeal of Florida (US)

Page 571

400 So.2d 571

Richard Sylvester JAMES, Appellant, v. STATE of Florida, Appellee.

No. 79-11/T4-352.

District Court of Appeal of Florida, Fifth District.

Oct. 22, 1980.

Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Daytona Beach, for appellee.

ORFINGER, Judge.

James appeals his conviction for burglary of a dwelling, attempted sexual battery with great force, and robbery. His principal attack is to the admission into evidence of a discovery deposition of the victim who died after the deposition was taken, but prior to trial.

Appellant contends that the use of the deposition at trial violates his Sixth Amendment rights of confrontation and cross-examination; that Rule 3.220(d), Florida Rules of Criminal Procedure, precludes the use of the deposition for any purpose other than contradiction or impeachment of the deponent unless the procedure prescribed by Rule 3.190(j), Florida Rules of Criminal Procedure, is complied with; and that the State failed to show a proper predicate for use of the deposition.

The record shows that appellant was not in custody, but was free on bond prior to trial. Appellant's counsel took the deposition in question. Nevertheless, appellant contends that his rights of confrontation were violated when the deposition was introduced at trial, because he was not present when it was taken, and relies on State v. Basiliere, 353 So.2d 820 (Fla.1977). There is one very significant difference in the factual situation here as compared to Basiliere. Here, defendant was free on bond and was therefore not prevented from attending the deposition. In Basiliere, defendant was incarcerated and was never notified of the deposition or given the opportunity or right to attend. The Rules of Criminal Procedure accentuate this distinction by providing that where the procedure is followed to perpetuate testimony, a defendant in custody shall be produced at the deposition, but a defendant not in custody "may be present at the examination, but his failure to appear after notice shall constitute a waiver of his right to be present." Rule 3.190(j), Fla.R.Crim.P. In this case, appellant was not in custody, the deposition was taken by his attorney, whose failure to have appellant present may have been trial strategy or a desire not to again expose appellant to the victim ¹, but in any event could very well have been a waiver of defendant's right to be present and to confront the deponent. McArthur v. State, 303 So.2d 359 (Fla. 3d DCA 1974). See also, Chapman v. State, 302 So.2d 136 (Fla. 2d DCA 1974). ²

Nevertheless, despite the persuasive argument by the State that the right of confrontation is not involved here because defendant was not in custody so that his absence from the examination was voluntary, thus a waiver, the State cannot overcome the procedural hurdle established by the Supreme Court in Basiliere. It must be noted that here, as in Basiliere, the deposition was taken by defendant's counsel for discovery purposes, and no attempt was made by either party to perpetuate testimony under Rule 3.190(j), Florida Rules of Criminal Procedure. In holding that a discovery deposition of a witness who died before trial was not admissible, the Supreme Court said:

As to the second question certified, we hold that Rule 3.220(d), Florida Criminal Procedure Rules, providing that depositions may be used for the purpose of contracting or impeaching testimony of the deponent as a witness provides the exclusive use of depositions in criminal proceedings unless Rule 3.190(j), Florida Criminal Procedure rules, is met.

353 So.2d at 825.

Again we are convinced that this statement was bottomed on the proposition that the use of an out of court statement in these circumstances violated defendant's right of confrontation under the Sixth Amendment, and that the result would have been the same even had he been present.

Although this interpretation seems to produce an untoward result, we are without power to alter a rule of law as construed and established by the Supreme Court. Hoffman v. Jones, 280 So.2d 431 (Fla.1973). However, in the light of a recent decision of the U.S. Supreme Court, further discussion is warranted.

Sworn testimony given at prior hearings has been held admissible under certain circumstances. When a re-trial becomes necessary, the prior trial testimony of a witness unavailable for the second trial has been held properly admitted because of the full right of confrontation and cross-examination available to defendant at the first trial. Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895); Blackwell v. State, 79 Fla. 709, 86 So. 224 (1920). The United States Supreme Court has also recognized the admissibility into evidence of a witness' testimony taken at a preliminary hearing,

Although noting that the preliminary hearing is ordinarily a less searching exploration into the events of a case than a trial, we recognized that "there may be some justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demand of the confrontation clause where the witness is shown to be actually unavailable."

California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).

In Richardson v. State, 247 So.2d 296 (Fla.1971), our Supreme Court held that a state witness could testify to his recollection of a deceased witness' testimony at a preliminary hearing when the testimony at the preliminary hearing was not reported, finding that there was a full and adequate opportunity to confront and cross-examine the witness. However, in Basiliere, the Supreme Court apparently refused to extend this doctrine to a discovery deposition, taking the position that such deposition does not satisfy the right to confrontation.

Yet, when the defendant sought discovery through means of deposition, it was only to ascertain facts upon which the charge was based. Being unaware that this deposition would be the only opportunity he would have to examine and challenge the accuracy of the deponent's statements, defendant could not have been expected to conduct an adequate cross-examination as to matters of which he first gained knowledge at the taking of the deposition.

Basiliere, 353 So.2d at 824, 825.

In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the U.S. Supreme Court was again faced with a confrontation question as it pertained to the admissibility of out of court testimony. Defendant had been charged with possession of stolen credit cards and forgery of a check belonging to Bernard Isaacs. At a preliminary hearing held in Municipal Court, after the prosecution called several witnesses, defendant's attorney called Isaacs' daughter, Anita, and questioned her at some length, attempting to elicit from her an admission that she had given the checks and credit cards to the defendant. Anita denied this. Defendant's attorney did not ask to have Anita declared hostile and did not request permission to place her on cross-examination. The...