Mortimer v. State
| Decision Date | 21 November 2012 |
| Docket Number | No. 4D09–1958.,4D09–1958. |
| Citation | 100 So.3d 99 |
| Parties | Guy MORTIMER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Carey Haughwout, Public Defender, and Emily Ross–Booker, Assistant Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
The trial court admitted evidence under a common law hearsay exception that was not a part of the Florida Evidence Code 1 at the time of trial. After the trial, the legislature amended the Evidence Code to include the very hearsay exception applied by the trial court. Under these circumstances, the error in invoking the exception at the trial does not justify reversal, since the same evidence would now be admissible at a second trial.
On July 14, 2007, armed gunmen robbed a carwash in Pompano Beach. A car sped into the parking lot. Five masked men with guns jumped out, searched people at the car wash, and took jewelry and money. They got back into the car and rushed away. Two of the victims, Edder Joseph and Rubens Saint Remy, followed the robbers' car and called the police as they drove. Police pursued the getaway car on I–95 and unsuccessfully tried to stop it. The robbers exited at Hollywood Boulevard and raced away until they violently collided with another vehicle. An occupant of the getaway car was killed. Persons in the other vehicle were injured. Appellant Guy Mortimer was in the suspect vehicle, where the police found ski masks, gloves, and property taken in the robbery. Mortimer's DNA was found inside a ski mask and one of the gloves. Mortimer was charged with felony murder and robbery.
Prior to trial the State filed a motion to declare witness Edder Joseph “unavailable for trial,” claiming that Mortimer and his codefendants were part of the “Doom City” gang and had tampered with Joseph to the point he was afraid to testify. The State sought to introduce Joseph's testimony from a codefendant's bond hearing held pursuant to State v. Arthur, 390 So.2d 717 (Fla.1980), detailing the robbery at the car wash.
At a hearing on the motion, the State established that Mortimer and his codefendants were members of the Doom City gang and that the gang intended to assassinate anyone who testified at trial.
The State offered testimony about shootings that occurred on July 16, 2007, two days after the robbery. On that day, a man known to Joseph told him that “Doom City will not back down” and warned him to keep his mouth shut. A short time later, at 7:21 p.m., a codefendant's brother fired numerous shots at Joseph in front of his home. At 11:33 p.m., Joseph was present at a drive-by shooting at another location. At 11:38 p.m., another drive-by shooting targeted Joseph's residence.
From November 2007 to July 2008, Mortimer discussed Joseph on telephone calls from the jail, saying that he had been disrespected by Joseph, that Joseph was “the most important witness in his case,” that “all the soldiers” were “on the ground,” and that he should have been home already. On October 19, 2008, a masked man shot Joseph in the face, knee, and ankle. He sustained severe injuries; the shooting left him with no vision in one eye and limited vision in the other.
The State's investigator was unable to locate Joseph at his home to serve him with a trial subpoena. A person living at the house told him that Joseph had moved out. After the investigator made two more unfruitful trips to the house, Joseph called him and refused to testify. He said, Joseph refused to tell the investigator his location. He blamed the State for his injuries. The State's witness subpoena was never served.
The trial court ruled that Joseph was unavailable because of Mortimer's actions and allowed the prior testimony of Joseph to be read to the jury. The testimony detailed the robbery at the car wash and the subsequent chase on I–95.
Mortimer challenges the admission of Joseph's prior testimony as hearsay. The State contends that the prior testimony was admissible under the common law hearsay exception of forfeiture by wrongdoing. This exception permits the introduction of out of court statements of a witness, where the witness is kept away from trial by the “means or procurement” of the defendant. Giles v. California, 554 U.S. 353, 359, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008). 2 For the exception to apply, the defendant must have “engaged in conduct designed to prevent the witness from testifying.” Id. The Federal Rules of Evidence codified the doctrine of forfeiture by wrongdoing in 1997 in Federal Rule of Evidence 804(b)(6). Id. at 367.
At the time of the trial in this case, unlike the Federal Rules of Evidence, no provision of the Florida Evidence Code authorized forfeiture by wrongdoing as an exception to the hearsay rule, which is set forth in section 90.802, Florida Statutes (2010). We agree with the first district's analysis of the applicability of forfeiture by wrongdoing in Florida. See Chavez v. State, 25 So.3d 49, 51–52 (Fla. 1st DCA 2009). Section 90.802 plainly provides, “Except as provided by statute, hearsay evidence is inadmissible.” This means that the only exceptions to the hearsay rule in Florida are the ones recognized by statutes such as sections 90.803, 90.804, and 90.805, Florida Statutes (2010). See Chavez, 25 So.3d at 51–52. In this case, Joseph's testimony from the bond hearing was hearsay, in that it was “offered in evidence to prove the truth of the matter[s] asserted.” § 90.801(1)(c), Fla. Stat. (2010). Because no statutory exception operated to authorize the admission of Joseph's prior statement in evidence, the testimony was inadmissible at trial.
However, in 2012, the legislature codified the doctrine of forfeiture by wrongdoing by enacting section 90.804(2)(f) which provides:
(2) The following are not excluded under s. 90.802, provided that the declarant is unavailable as a witness:
....
(f) Statement offered against a party that wrongfully caused the declarant's unavailability.—A statementoffered against a party that wrongfully caused, or acquiesced in wrongfully causing, the declarant's unavailability as a witness, and did so intending that result.
Ch. 2012–152, Laws of Florida. Section 90.804(2)(f) became effective in April, 2012. If section 90.804(2)(f) is applied at a retrial, Joseph's testimony from the earlier bond hearing would be admissible.
Because section 90.804(2)(f) is a procedural statute, it would apply to a retrial if we were to reverse this case. A procedural statute is “to be applied retrospectively” and is “to be applied to pending cases.” Alamo Rent–A–Car, Inc. v. Mancusi, 632 So.2d 1352, 1358 (Fla.1994). Changes in laws regarding the admission of evidence, such as the creation of a new hearsay exception, are typically held to be procedural. See Glendening v. State, 536 So.2d 212, 215 (Fla.1988). Such a statutory change does not violate the prohibition against ex post facto laws because it does not “alter ‘substantial personal rights;’ ” the crime with which the defendant was charged, the punishment prescribed for it, and “the quantity or the degree of proof necessary to establish his guilt, all remain[ed] unaffected by” the enactment of section 90.804(2)(f). See id. Using this analysis, the Florida Supreme Court held that the application of another hearsay exception, section 90.803(23), Florida Statutes (1985) did not violate the prohibition against ex post facto laws when it was applied to a crime that occurred before the effective date of the statute. Id. at 214–15;see also McLean v. State, 854 So.2d 796, 803 (Fla. 2d DCA 2003) ().
A separate procedural/substantive issue arises as a result of article V, section 2(a) of the Florida Constitution, which provides that the “supreme court shall adopt rules for the practice and procedure in all courts.” As the fifth district has explained, the application of this provision means that
when the Legislature enacts a procedural rule of evidence, it must be adopted by the supreme court. See State v. McFadden, 772 So.2d 1209, 1213 (Fla.2000) () (citing State v. Page, 449 So.2d 813, 815 (Fla.1984); Bobb v. State, 647 So.2d 881, 883 (Fla. 4th DCA 1994)); see also In re Florida Evidence Code, 372 So.2d 1369, 1369 (Fla.1979). In order to comply with its constitutional responsibility and recognizing that the evidence code contains both substantive and procedural provisions, the Florida Supreme Court regularly issues opinions adopting or refusing to adopt the procedural rules enacted as amendments to the Florida Evidence Code. See, e.g., In re Amendments to the Fla. Evidence Code, 782 So.2d 339 (Fla.2000)[.]
Crumbley v. State, 876 So.2d 599, 602–03 (Fla. 5th DCA 2004).
For the purpose of article V, section 2(a), we conclude that section 90.804(2)(f) is a procedural statute. “Practice and procedure” under the constitutional provision,
encompass the course, form, manner, means, method, mode, order, process or steps by which a party enforces substantive rights or obtains redress for their invasion.... [Practice and procedure] is the method of conducting litigation involvingrights and corresponding defenses.
Massey v. David, 979 So.2d 931, 937 (Fla.2008) ( quoting Haven Fed. Sav. & Loan Ass'n v. Kirian, 579 So.2d 730, 732 (Fla.1991)) (citations omitted). The Florida Supreme Court...
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Brittain v. State
... ... State, 297 Ga.App. 626, 627, 677 S.E.2d 773 (2009) (Where a statute governs only court procedure, including the rules of evidence, it is to be given retroactive effect absent an expressed contrary intention.). 36 See Mortimer v. State, 100 So.3d 99, 10104 (Fla.Dist.Ct.App.2012) (holding that even though trial court erroneously applied common law rule of forfeiture by wrongdoing to admit hearsay testimony otherwise inadmissible under evidence code, there was no reversible error because evidence code had since been ... ...