Kopko v. State
| Decision Date | 14 February 1991 |
| Docket Number | No. 89-1497,89-1497 |
| Citation | 16 Fla. L. Weekly 1058,577 So.2d 956 |
| Parties | , 16 Fla. L. Weekly 1058, 16 Fla. L. Weekly 508 Martin David KOPKO, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Christopher A. Grillo, Fort Lauderdale, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Judy Taylor Rush, Asst. Atty. Gen., Daytona Beach, for appellee.
This case brings to our attention an evidentiary problem peculiar to prosecutions for sexual battery perpetrated on children--admission of repetitive hearsay testimony recounting the child victim's out-of-court statements describing the criminal sexual acts.
The child victim in this case was nine years old when she reported lewd acts and sexual battery allegedly perpetrated by her stepfather, the appellant, David Kopko. Appellant had been married to the child's mother for approximately three years. Mrs. Kopko also had a son from her former marriage, and she and appellant together had a daughter.
Mrs. Kopko testified that, on June 21, 1987, she informed her older daughter, the victim, that she had decided to leave the appellant. The child then told her mother of an incident involving appellant that had occurred around the previous Halloween. She related that appellant had taken off his clothes, climbed into the shower with her and "stuck his private in [her] butt." She also stated that sometimes while her mother was away from the house, the appellant would call her into the bedroom, remove his clothing, place her on the bed and move around on top of her. The incidents always ended with her wriggling out from underneath him and leaving the room. She reported that the last such incident had occurred within a month of these revelations to her mother.
On or about June 24, 1987 appellant's wife left the marital home, taking all three children. The following week, mother and child met with a police officer and made a statement concerning the appellant's alleged sexual abuse. Two days later, the child made a videotaped statement concerning the above-described incidents in the form of an interview with a counselor for the Child Protection Team ("CPT"). The child was also examined by a CPT physician, but no objective evidence of abuse was found. Appellant subsequently sued his wife for divorce and requested custody of his natural daughter. On October 26, 1987, appellant was charged with sexual battery and lewd assault.
Prior to trial, the state filed a motion seeking admission at trial of the CPT counselor's videotaped interview with the child. In its motion, the state described the testimony on the tape and summarily stated that "the circumstances surrounding the making of the statement demonstrate it is reliable." 1 Prior to trial, the defense challenged both the sufficiency of the notice and the admissibility of the videotape based on hearsay. The court found the notice to be adequate and held a hearing to determine admissibility under the provisions of section 90.803(23), Florida Statutes (1987). At the hearing, the state argued that the statements made by the child victim contained the requisite indicia of reliability because: (1) the incidents were disclosed to the mother as soon as the child found out they were leaving her stepfather; (2) the questions posed by the interviewer were not leading; 2 (3) the child had no motive to lie; (4) the statements were corroborated in part by the mother's testimony; and (5) the statements made by the child were consistent with other statements she had given. Appellant's counsel argued that the videotaped statements were unreliable because of the time lapse between the incidents and the time they were reported, and because of the further delay between the report and the interview. He contended there was a motive to lie because of the disputes between the victim and the appellant about discipline, and, more important, because the child and her mother were anxious to keep custody of the child's little sister. He also pointed out that the child appears to be sophisticated about sexual matters so that her story does not depend on her having experienced the events. According to defense counsel, the child's testimony was obviously coached. Counsel also pointed out that there was no physical evidence to corroborate the statements made by the child. Finally, the videotape was objected to as "cumulative" and "prejudicial".
In finding the videotape admissible under section 90.803(23), Florida Statutes (1987), the trial court stated:
I find that it's clear from the tape that the victim is able to testify competently. She recites the facts well, her memory seems clear; she was not unduly prompted by the interviewer. The circumstances are relaxed, she seems relaxed, very forthright with the interviewer in answering the questions and answers the questions fully and concisely.
Further, the content of the tape coincides with the testimony that the victim gave as part of the hearing. Further, it coincides with the statement related by her mother after the, or at the first initial reporting of this matter.
The court, nevertheless, found that the prejudicial value of the videotape outweighed its probative value and refused to allow it to be presented to the jury. The court said:
Unless during the testimony of this trial the testimony of the victim is ostensibly less, then the Court may reconsider that motion, possible motion by the state, the motion of the videotape at the time if I deem its probative value becomes more important.
But right now it appears to me the the [sic] victim is able to testify clearly to the facts that have occurred and therefore the probative value would be minimal in admitting the tape.
In response to the court's ruling, the state moved for the court to allow the CPT counselor who performed the interview to testify to the statements made by the child during the interview. For some reason not clear on the record, the trial court elected to allow the CPT worker who conducted the videotaped interview to testify.
At trial, the state called four witnesses: the child, the child's mother, the CPT counselor and the CPT physician who examined the child. The testimony of the child victim, who was then approximately two years older than when the videotape interview was made, was clear, concise and very similar to the statements she had previously made to her mother, the CPT counselor and the physician. The testimony of the CPT counselor, over renewed hearsay objection, related the events of the interview, recounting once again for the jury virtually the same version of events the child had given at trial. The counselor was not qualified as an expert witness and gave no evidence beyond the substance of the statements that had been made. The CPT physician also recounted for the jury, in slightly less detail, the child victim's description of her stepfather's sexual abuse. The doctor further testified that she found no evidence of anal penetration, scarring, fissures or other objective symptoms of abuse.
This case is further complicated because, during defense counsel's cross-examination of the CPT counselor, he had her acknowledge, apparently for impeachment purposes, that the videotape of the interview with the child would be "more accurate [than the counselor's own recollection] and the best evidence of what really went on during that session." Thereafter, on the state's motion, the court ruled that the defense had "opened the door" and allowed portions of the videotaped interview to be shown.
Appellant testified at trial, denying all charges. He described the family situation, including the fact that his ex-wife was approximately eight years his senior and they had been married when he was nineteen or twenty, shortly after her divorce from her first husband. He testified that he and his ex-wife had fought regularly during their marriage about discipline, the children and money. He maintained that his ex-wife would do anything to prevent him from obtaining custody of their youngest daughter.
The jury found appellant guilty of both sexual battery and lewd assault on the child. Appellant, who had no prior criminal record, was sentenced to life imprisonment, with a minimum mandatory sentence of twenty-five years on the sexual battery count; he was given fifteen years incarceration to be served concurrently on the lewd assault.
On appeal, appellant contends that the admission of the hearsay statements of the child through the CPT counselor, the CPT physician, and the videotape was reversible error. 3 Appellant initially complains that the statutory notice required under section 90.803(23) was inadequate. We agree that the state's attempt to comply with the statutory notice requirements was defective because the state failed to identify the circumstances surrounding the statement that indicate reliability. By merely adverting to the videotape, the state left the defense to guess what factors the state would argue to establish trustworthiness. Because, however, the arguments actually made by the state were discernible from viewing the tape and because none of the state's reliability arguments even approach surprise, we do not see that this defective notice could constitute reversible error. 4 Distefano v. State, 526 So.2d 110 (Fla. 1st DCA 1988).
Appellant also urges that the testimony of the CPT counselor and the videotape of the counselor's interview with the child did not meet the statutory requirements of "trustworthiness" sufficient to justify admission in evidence. Here, the trial court viewed the videotape and concluded that the time, content and circumstances of the statement, as well as the other factors referenced in the statute, provided adequate safeguards of reliability. In reaching its determination, the trial court considered indicia both intrinsic to the statement and factors...
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Flanagan v. State
...not be a basis for reversal under the rationale of Salter v. State, 500 So.2d 184 (Fla. 1st DCA 1986), described in Kopko v. State, 577 So.2d 956 (Fla. 5th DCA 1991) as reflective "of the overwhelming view that cumulative or repetitive evidence cannot be harmful error." In Salter, the couns......
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...v. State, 159 Fla. 574, 34 So.2d 100 (1947); Perez v. State, 371 So.2d 714 (Fla. 2d DCA 1979). See generally Kopko v. State, 577 So.2d 956, 960 n. 9 (Fla. 5th DCA 1991). As in several recent cases in which, like this one, the prior consistent statements were those of a victim whose credibil......
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Adkins v. State, 91-1389
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