Lewis v. State, 92-744

• Decision Date: 12 November 1993
• Docket Number: No. 92-744,92-744
• Citation: 626 So.2d 1073
• Parties: 18 Fla. L. Weekly D2405 Ricky Lamar LEWIS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1073

626 So.2d 1073

18 Fla. L. Weekly D2405

Ricky Lamar LEWIS, Appellant, v. STATE of Florida, Appellee.

No. 92-744.

District Court of Appeal of Florida First District.

Nov. 12, 1993.

Rehearing Denied Dec. 6, 1993.

Nancy A. Daniels, Public Defender, Glen P. Gifford, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Charlie McCoy, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, for appellee.

ERVIN, Judge.

Lewis appeals his convictions for sexual battery on a person under the age of 12 and lewd and lascivious assault on the same person. Of the numerous errors alleged, we find merit in only one, i.e., that the trial court permitted the child victim to testify by closed-circuit television outside the presence of the defendant during trial, and we reverse as to it and remand the case for new trial. The remaining errors asserted, i.e., the admission of hearsay statements under the medical-diagnosis exception to the hearsay rule, the admission of collateral-crime evidence, and the giving of a jury instruction on witness tampering, are affirmed, in that the evidence was admissible or the alleged error was not preserved for appellate review.

In reversing the trial court's order permitting the child victim to testify by closed-circuit television, which is authorized under Section 92.54, Florida Statutes (1989), we initially agree with the state that because the appellant did not object to the trial court's failure to make the specific findings required by section 92.54(5), he waived this error for purposes of appeal. See Hopkins v. State, 608 So.2d 33 (Fla. 1st DCA 1992), review granted, 618 So.2d 1368 (Fla.1993). As in Hopkins, however, we certify the following question to the supreme court as a question 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?

Our conclusion in this regard, however, does not apply to the issue of the sufficiency of the evidence undergirding those findings. In support of the state's motion to allow the child to testify outside the defendant's presence, only the child and her mother gave evidence regarding the child's mental state. Their testimony, at most, showed only that the child would be frightened if she were required to testify in the presence of the defendant.

In Myles v. State, 602 So.2d 1278, 1281 (Fla.1992), the Florida Supreme Court stated that in order to comply with the United States Supreme Court's pronouncement in Maryland v. Craig, 497 U.S. 836, 855-56, 110 S.Ct. 3157, 3169, 111 L.Ed.2d 666, 685 (1990), the trial court must (a) hold an evidentiary hearing to determine whether the closed-circuit procedure is necessary to protect the welfare of the child witness, (b) find that the child witness will be traumatized by the presence of the defendant, rather than by the courtroom generally, and (c) find that any emotional distress the child might suffer in the presence of the defendant would be more than de minimis, meaning that any such resulting distress is more than mere nervousness, excitement, or reluctance to testify. In an earlier opinion, the Florida Supreme Court interpreted the similar statutory standard provided in Section 92.53(1), Florida Statutes (1987), and specifically cautioned "that mere discomfort or even fright, without more, does not meet the statutory criterion." Leggett v. State, 565 So.2d 315, 317 (Fla.1990).

The quantum of evidence offered below contrasts sharply with that submitted in other cases in which courts have approved the use of videotaped or closed-circuit testimony. Compare Feller v. State, 617 So.2d 1091 (Fla. 1st DCA 1993) (psychologist testified that the child had suicidal ideation and fear that she would cause irreparable damage to her family if she were required to testify in the presence of the defendant), review granted, 626 So.2d 205 (Fla.1993); Hopkins v. State, 608 So.2d 33 (Fla. 1st DCA 1992) (child's mother and psychologist testified that victim would suffer substantial and high emotional or mental harm if required to testify), review granted, 618 So.2d 1368 (Fla.1993); Hernandez v. State, 597 So.2d 408 (Fla. 3d DCA 1992) (expert testimony was elicited stating that the victim's children would suffer severe emotional harm if they testified in the presence of the person whom they believed killed their mother).

We consider that the evidence in the above cases conforms generally with the rule enunciated by the Supreme Court in Craig, recognizing that a closed-circuit television procedure is appropriate upon a showing that if the child were to testify in the direct presence of the defendant, the resulting trauma would "impair the child's ability to communicate." Craig, 497 U.S. at 857, 110 S.Ct. at 3170, 111 L.Ed.2d at 686. The Court reasoned that if "face-to-face confrontation causes [such] significant emotional distress in a child witness [as to affect the child's ability to communicate], there is evidence that such...