Knox v. State

• Decision Date: 03 October 2012
• Docket Number: No. 4D10–3023.,4D10–3023.
• Citation: 98 So.3d 679
• Parties: Timothy KNOX, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

98 So.3d 679

Timothy KNOX, Appellant,

v.STATE of Florida, Appellee.

No. 4D10–3023.

District Court of Appeal of Florida, Fourth District.

Oct. 3, 2012.

Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

GERBER, J.

The defendant appeals his conviction for three counts of robbery with a firearm. He primarily argues that the trial court violated the Confrontation Clause by allowing the state to perpetuate the videotaped testimony of one of the three victims and present that videotaped testimony at trial. We agree with the defendant's argument, reverse the defendant's convictions, and remand for a new trial.

The victims told the police that they were walking down a street at night when a man approached them. One of the victims thought she recognized the man from far away, but when he got five to six feet away, she realized it was a different person. At that point, the man pulled his skullcap down to his eyebrows, pulled a bandana up over his mouth, and pointed a gun at them. The man robbed the victims and ran away. The victims called the police, but the police were unable to find the man.

Seventeen days after the robbery, a detective went to the defendant's home to investigate an unrelated matter. The defendant allegedly gave the police a false name and consented to a search of his home. Inside the defendant's bedroom, the detective found a box containing credit cards which belonged to one of the victims. The box also contained a document with the defendant's correct name.

The police linked the credit cards to the robbery. Two months after the robbery, the police showed the victims a photo array. Two of the victims were unable to identify the defendant. However, the third victim, who thought she recognized the defendant as someone else on the night of the robbery, identified the defendant.

Based on that identification, the police suspected the defendant of having committed the robbery. The police found the defendant staying at a hotel several blocks from his home. When the police arrested the defendant, he allegedly said, “I'm glad you guys arrested me. I'm tired of running.” Then, according to the police, the defendant began to shake a little bit and said, “I'm in big trouble.”

On what was scheduled to be the trial's first day (a Wednesday), the state notified the defense that it intended to call two of the victims as witnesses, including the victim who identified the defendant. That victim now lived out-of-state and was flying in that night. Defense counsel advised the court that, after the parties picked a jury that day, he intended to depose the victim who still lived locally, and also intended to depose the out-of-state victim that night or the following morning.

The trial court expressed concern about whether the parties could complete the trial by the following day (Thursday) as scheduled. The court stated that it had other hearings scheduled on Friday which it could not move, and it also was covering other judges' dockets. The court indicated that it did not want to begin jury selection until the defense deposed the witnesses and filed any motions which may have arisen from the depositions. Based on this concern, the court, on its own motion, continued the trial until the following week.

The next day, the state filed a motion to perpetuate the out-of-state victim's testimony. According to the motion, the victim informed the state that “she is unable to travel again to Florida due to the economic hardship it would present her.” Attached to the motion was the victim's affidavit, which alleged: she was not able to pay for transportation; she worked 43 hours per week and did not receive leave pay when she missed work; whenever she missed work, she was unable to pay her bills and expenses; and her family heavily depended on her assistance.

When the parties appeared before the trial court for the hearing on the motion, the court stated: “I'm not sure that the case law is [going to] allow me to do it.” The defense argued that economic hardship was not an exceptional circumstance to justify perpetuating testimony. The state responded that perpetuating the victim's testimony would not prejudice the defense. However, the state conceded that it was not aware of a case which held that economic hardship alone was enough to justify granting the motion.

The trial court granted the motion, reasoning that the out-of-state victim “cannot afford to return to Florida for the trial and ... is a material witness.” In announcing its ruling, the court addressed the defense as follows:

I'll note the defense objection but I'm going to overrule it. I do find that these are exceptional circumstances. Had we not been in a recession ... I would [have] made the State ... spend the money[.] [B]oth ... you and I and [the prosecutor] are all taxpayers here and we have to be good stewards of the monies we ... have here. So that played a great role in my decision.

The parties then perpetuated the out-of-state victim's testimony on videotape. The victim testified, among other things, that, while she remained in Broward County after the robbery, she saw the defendant in a local store three or four times. She testified she had a “gut feeling” that the defendant was the robber. However, she did not call the police.

At the trial, which occurred three weeks later, the state said: “I know Your Honor ruled on this, but just to make it clear for the record, [the out-of-state victim's] situation has not changed, she's still suffering economic hardship and I again would be moving to ... produce that testimony during trial.” The defendant renewed his objection. The court overruled the objection. The court reasoned: “[The victim's] economic situation hasn't changed, everybody is still struggling so I'm going to allow that testimony in.” The state played the victim's videotaped testimony during its case-in-chief. The jury found the defendant guilty as charged.

After the court sentenced the defendant, this appeal followed. The defendant argues that the trial court violated the Confrontation Clause by allowing the state to perpetuate the out-of-state victim's videotaped testimony. We review the trial court's decision for an abuse of discretion. See Hurst v. State, 18 So.3d 975, 1007 (Fla.2009) (“[T]he decision whether to grant a motion to perpetuate testimony lies within the discretion of the trial court.”) (citations and quotations omitted); Gonzalez v. State, 971 So.2d 891, 891 (Fla. 3d DCA 2007) (“[W]e cannot conclude that the trial court erred in its determination that the State's witness was unavailable to testify in person at trial.... Thus, the court did not abuse its discretion when it admitted this witness's perpetuated deposition testimony.”).

We agree with the defendant's argument. The United States Constitution's Sixth Amendment's Confrontation Clause provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with witnesses against him....” According to our supreme court, the Confrontation Clause ensures:

(1) that the witness will give the testimony under oath, impressing upon the witness the seriousness of the matter and protecting against a lie by the possibility of penalty of perjury, (2) that the witness will be subject to cross-examination, and (3) that the jury will have the chance to observe the demeanor of the witness, which aids the jury in assessing credibility.

Harrell v. State, 709 So.2d 1364, 1368 (Fla.1998).

However, the court also has held that the right to physically confront accusers is not absolute. Id. “In order to qualify as an exception, the procedure must (1) be justified, on a case-specific finding, based on important state interests, public policies, or necessities of the case and (2) ... satisfy the other three elements of confrontation—oath, cross-examination, and observation of the witness's demeanor.” Id. at 1369.¹

As a recognition of the Confrontation Clause exception, Florida Rule of Criminal Procedure 3.190(i) (2010) permits parties to file a motion to perpetuate a witness's testimony by deposition. Rule 3.190(i)(1) requires the movant to show by verified application or affidavit “that a prospective witness resides beyond the territorial jurisdiction of the court or may be unable to attend or be prevented from attending a trial or hearing, that the witness's testimony is material, and that it is necessary to take the deposition to prevent a failure of justice.” Rule 3.190(i)(6) adds that “[n]o deposition shall be used or read into evidence when the attendance of the witness can be procured.”

Here, we conclude that the motion and the affidavit were insufficient to satisfy the Confrontation Clause exception and rule 3.190(i). According to the motion, the victim advised the state that “she is unable to travel again to Florida due to the economic hardship it would present her.” The victim's affidavit alleged: she was not able to pay for transportation; she worked 43 hours per week and did not receive leave pay when she missed work; whenever she missed work, she was unable to pay her bills and expenses; and her family heavily depended on her assistance.

What is missing from the motion and affidavit is any explanation of why the state could not have remedied the out-of-state victim's alleged economic hardship. That is, the victim did not quantify the cost of her transportation, travel-related expenses, and presumed one day's lost pay, and the state did not explain why it was unable to pay those costs when various statutes allow for such payments. See§ 29.005(3), Fla. Stat. (2010) (the expenses of state attorneys' offices to be provided from state revenues include “[w]itnesses ... summoned to appear for ... trial in a case when the witnesses are summoned by a state...