McLean v. State

• Decision Date: 06 July 2006
• Docket Number: No. SC03-1732.,SC03-1732.
• Citation: 934 So.2d 1248
• Parties: Ronald McLEAN, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

934 So.2d 1248

Ronald McLEAN, Petitioner, v. STATE of Florida, Respondent.

No. SC03-1732.

Supreme Court of Florida.

July 6, 2006.

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Ryan Thomas Truskoski, P.A., Orlando, FL, for Petitioner.

Charles J. Crist, Jr., Attorney General, Tallahassee, FL, Robert J. Krauss, Bureau Chief, Tampa Criminal Appeals and John M. Klawikofsky, Assistant Attorney General, Tampa, FL, for Respondent.

PARIENTE, J.

In this case we address a certified question of great public importance:

Does section 90.404(2)(b), Florida Statutes (2001), violate due process when applied in a case in which identity is not an issue?

McLean v. State, 854 So.2d 796, 803-04 (Fla. 2d DCA 2003). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We answer this question in the negative and hold that section 90.404(2)(b) comports with the requirements of due process of law when used as a conduit for evidence that corroborates the victim's testimony that the crime occurred rather than to prove the identity of the alleged perpetrator.

In so holding, we conclude that due process is satisfied by weighing the probative value of the evidence of prior acts of child molestation against its potential for unfair prejudice, which is compelled by section 90.403, Florida Statutes (2005). Application of section 90.403 in determining admissibility ensures that section 90.404(2)(b) does not open the door to introduction of any and all propensity evidence in sexual molestation cases. Where necessary to ensure that a defendant receives a fair trial, the trial court should either exclude the evidence or substantially limit its presentation so that it does not become a feature of trial. Further, under section 90.404(2)(c)(2), Florida Statutes (2005), when such evidence is admitted, the trial court shall, if requested, give an appropriate cautionary instruction and shall repeat the instruction in its final charge to the jury. Because the trial court in this case carefully and conscientiously followed these steps, we agree with the Second District that the defendant was not denied due process of law. Accordingly, we approve the Second District's decision.

FACTS AND PROCEDURAL HISTORY

Ronald McLean was charged with capital sexual battery and lewd molestation based on events that occurred on October 19, 2000, when McLean was visiting his brother, Gerald McLean. On that night, Gerald McLean's eight-year-old grandson, J.N., was also visiting.

J.N. and his grandfather regularly watched wrestling on television on Thursday nights and J.N. would stay over at his grandparents' home. On October 19, J.N.'s grandmother put him to bed around 9 p.m. Shortly thereafter, both grandparents went to bed.

At approximately 11 p.m., J.N. awoke his grandmother and announced that he wanted to go home. He was fully dressed and had his knapsack packed. He seemed nervous, but he did not say anything to his grandmother. She drove J.N. home about 11:15 p.m.

McLean, 854 So.2d at 798. The following day, J.N.'s mother asked J.N. why he had come home early. J.N.'s mother did not relate what J.N. told her but stated that the conversation caused her to report the matter to law enforcement.

Amy Wilkins, a case coordinator for the Children's Home Society who interviewed J.N., testified at trial that J.N. told her that he woke up during the night at his grandparents' house and that his "Uncle Ron" was rubbing J.N.'s bottom. J.N. explained that McLean inserted his finger into J.N.'s bottom.¹

Sharon Childress, an advanced registered nurse practitioner, conducted a physical examination of J.N. The exam did not reveal physical evidence of sexual abuse, but Childress testified that this is expected in a case of anal-digital contact unless there has been trauma in addition to the penetration with the finger.

J.N. was nine years old at the time of trial. He testified consistently with the information he had provided to Wilkins. McLean did not testify at trial and did not present any defense witnesses. The defense argued to the jury that the evidence presented by the State was unreliable due to the manner in which the investigation was handled and the manner in which the State elicited J.N.'s testimony.

To corroborate J.N.'s testimony, the State sought to introduce evidence of McLean's prior sexual molestation of another boy, whose last name was Chambers. The State relied on Williams v. State, 110 So.2d 654 (Fla.1959), and its progeny, as well as recently enacted section 90.404(2)(b).

Chambers, twenty-seven at the time of the trial, testified in a pretrial hearing on the admissibility of testimony that when he was twelve, McLean repeatedly molested him. Chambers stated that McLean worked with Chambers' father in a factory and often spent time with the Chambers family. The Second District summarized Chambers' testimony:

In 1986, when Mr. Chambers was twelve years old, Mr. McLean went on a hunting trip with Mr. Chambers and his father. On the first night of this trip, Mr. Chambers awoke to find Mr. McLean pressing his penis against Mr. Chambers' back and touching him under his underwear. Mr. McLean also touched Mr. Chambers' penis. Mr. McLean had been drinking prior to this event. Mr. Chambers pushed him away and went back to sleep. Later that same night, Mr. McLean returned and continued this conduct until Mr. Chambers ejaculated.

Mr. Chambers testified that several months later similar conduct occurred at his family's "mini-farm." Again, this conduct occurred after Mr. McLean had been drinking. On this occasion, Mr. McLean attempted to penetrate Mr. Chambers' anus with his penis. Mr. Chambers did not recall Mr. McLean fondling his bottom. Within a few months, similar conduct occurred when Mr. Chambers was at Mr. McLean's house.

Finally, on two more occasions, Mr. McLean assaulted Mr. Chambers while he was sleeping in a bedroom in Mr. Chambers' home. On one of these occasions, Mr. Chambers believed that Mr. McLean's penis penetrated his anus. On both of these occasions, Mr. McLean was a guest staying overnight in the home. By the final occurrence, Mr. Chambers was fourteen years old.

Mr. Chambers ultimately reported this conduct to his mother. He testified that his mother and father confronted Mr. McLean, who confessed to these crimes. They agreed not to report the matter to the police so long as Mr. McLean sought help from their church's minister. Mr. Chambers did not see Mr. McLean again until he testified at this trial, did not know the victim in this case, and had never met the victim's family prior to this trial.

McLean, 854 So.2d at 798-99.

Addressing the State's assertion that Chambers' testimony was admissible under section 90.404(2)(b), the trial court concluded that in enacting this new statute the Legislature was attempting to overrule or modify Saffor v. State, 660 So.2d 668 (Fla.1995), and Heuring v. State, 513 So.2d 122 (Fla.1987). The trial court also concluded that the Legislature intended section 90.403 to apply to evidence admissible under section 90.404(2)(b), requiring an evaluation of whether the probative value of the evidence outweighs its potential for unfair prejudice.

The trial court ruled that section 90.404(2)(b) governed the admissibility of Chambers' testimony and rejected McLean's argument that the statute violated his due process rights. The trial court determined, however, that pursuant to section 90.403, admission of all of Chambers' testimony would be overly prejudicial. The trial court therefore excluded testimony that McLean confessed to Chambers' parents and limited the testimony to events occurring in Chambers' home.

Before Chambers testified, the trial court instructed the jury that the collateral crime evidence could be considered only for the "purpose of proving opportunity, intent, the absence of mistake or accident on the part of the defendant, or to corroborate the testimony of [J.N.]." The trial court repeated this instruction during the final jury charge.

The State briefly mentioned Chambers' testimony during opening and closing statements but did not dwell on facts elicited from Chambers. The State also told the jury that Chambers' testimony was introduced to help the jury decide whether J.N. was telling the truth and whether what happened to J.N. was a mistake or accident.

The jury convicted McLean of both attempted capital sexual battery and lewd molestation. The trial court denied a motion for new trial and entered judgment on only the conviction of lewd molestation.² McLean was sentenced to thirty years' imprisonment and designated a sexual predator.

On appeal to the Second District, McLean challenged the constitutionality of section 90.404(2)(b). He argued that the statute violates due process and that the application of the statute to his case violates the prohibition against applying laws ex post facto. McLean also argued that even if the statute is constitutional, the trial court erred in admitting the collateral crime evidence in this case. See McLean, 854 So.2d at 800. The Second District rejected each of these arguments and affirmed McLean's conviction and sentence. See id. at 802-03. However, because this Court adopted section 90.404(2)(b) "in a divided opinion that did not address constitutional issues,"³ and because of the provision's implications "in many serious felony trials throughout the state," the Second District certified the question as a matter of great public importance. Id. at 803.

ANALYSIS

Section 90.404(2)(b) provides that in a case in which a "defendant is charged with a crime involving child molestation, evidence of the defendant's commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant." The Second District held that section 90.404(2)(b) does not violate due process when applied in a case in which identity is not an issue because

the new statute does not...