Perez v. State

• Decision Date: 01 December 1988
• Docket Number: No. 70027,70027
• Citation: 13 Fla. L. Weekly 683,536 So.2d 206
• Parties: , 13 Fla. L. Weekly 683 Paul PEREZ, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 206

536 So.2d 206

57 USLW 2391, 13 Fla. L. Weekly 683

Paul PEREZ, Petitioner, v. STATE of Florida, Respondent.

No. 70027.

Supreme Court of Florida.

Dec. 1, 1988.

Rehearing Denied Jan. 30, 1989.

James B. Gibson, Public Defender and Christopher S. Quarles, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for petitioner.

Robert A. Butterworth, Atty. Gen., and Ellen D. Phillips, Asst. Atty. Gen., Daytona Beach, for respondent.

EHRLICH, Chief Justice.

We have for review Perez v. State, 500 So.2d 725 (Fla. 5th DCA 1987), in which the district court expressly declared valid section 90.803(23), Florida Statutes (1985). ¹ We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

The petitioner, Paul Perez, was charged with a lewd assault upon a three-and-one-half-year-old child, in violation of section 800.04, Florida Statutes (1985). The state filed notice of intent to introduce at trial the hearsay statements made by the child regarding the alleged assault to his mother, Officer Matay, and Detective Massie. Perez made pretrial motions to exclude the child victim's hearsay statements from admissibility in evidence at trial, to compel the child to testify, and to declare section 90.803(23), Florida Statutes, the hearsay exception for statements of a child victim of sexual abuse, unconstitutional. The trial court denied Perez' motions to declare section 90.803(23) unconstitutional and to compel the child to testify. The trial court also, after an evidentiary hearing, found that the child victim's out-of-court statements were reliable, but the child was unavailable as a witness due to a substantial likelihood of severe emotional or mental harm if required to participate in the trial or proceeding. After the trial court's ruling on the motions, Perez entered a plea of nolo contendere reserving the right to appeal the issues raised by the motions which the trial court found were dispositive of the case. The recommended guidelines sentence was any nonstate prison sanction. The trial court withheld adjudication and placed Perez on probation for a period of three years with certain applicable conditions.

On appeal, the district court affirmed, holding that the provisions of section 90.803(23), Florida Statutes (1985), "meet the requirements of the confrontation clause of the federal constitution (U.S. Const. amend. VI) as interpreted by the United States Supreme Court in Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597, 607 (1980), and of the Florida constitution (Art. I, § 16, Fla. Const.)." 500 So.2d at 726. The district court also found that the trial judge in this case correctly followed the provisions of section 90.803(23). Id. Perez now challenges these determinations.

Perez first contends that section 90.803(23) is unconstitutional, arguing that it denies a defendant the opportunity to confront adverse witnesses by cross-examining declarants whose statements are introduced at trial, thereby violating both the sixth amendment to the United States Constitution ² and article I, section 16, of the Florida Constitution. ³ We disagree. The United States Supreme Court has "emphasized that the Confrontation Clause reflects a preference for face-to-face confrontation at trial, and that 'a primary interest secured by [the provision] is the right of cross-examination.' " Ohio v. Roberts, 448 U.S. at 63, 100 S.Ct. at 2537 (quoting Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965) (footnote omitted)). The Court has rejected the view that the confrontation clause bars the use of any out-of-court statements when the declarant is unavailable for cross-examination, recognizing that competing interests such as the jurisdiction's strong interest in effective law enforcement and the development and precise formulation of the rules of evidence applicable in criminal proceedings may warrant dispensing with confrontation at trial. Id. at 64, 100 S.Ct. at 2538. The United States Supreme Court has "attempted to harmonize the goal of the Clause--placing limits on the kind of evidence that may be received against a defendant--with a societal interest in accurate factfinding, which may require consideration of out-of-court statements." Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 2782, 97 L.Ed.2d 144 (1987).

In Ohio v. Roberts, the Court laid down a "general approach" to the problem of reconciling hearsay exceptions with the confrontation clause which provides:

The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers' preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.

The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that "there is no material departure from the reason of the general rule."

448 U.S. at 65, 100 S.Ct. at 2538-2539 (citations omitted). See also Bourjaily, 107 S.Ct. at 2782. Reliability may be inferred without more where the evidence falls within a firmly rooted hearsay exception. If the evidence does not fall within a firmly rooted hearsay exception, there must be a showing of "particularized guarantees of trustworthiness." Id. 448 U.S. at 66, 100 S.Ct. at 2539. ⁴

Section 90.803(23), Florida Statutes (1985), follows the general approach set forth by the United States Supreme Court in Ohio v. Roberts. The hearsay exception for statements of a child victim of sexual abuse is not a firmly rooted exception, and by its terms is to be used when the child's out-of-court statement is "not otherwise admissible." § 90.803(23)(a), Fla.Stat. (1985). Therefore, in accordance with Ohio v. Roberts, the statute provides that before the out-of-court statements of the child victim may be admitted the court must first find, in a hearing, that "the time, content, and circumstances of the statement provide sufficient safeguards of reliability." Secondly, the child victim must either testify or be unavailable as a witness. If the child testifies, the defendant has been afforded an opportunity to confront the hearsay declarant. See California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). If the child victim does not testify, section 90.803(23) requires, in addition to a determination that the child is unavailable, "other corroborative evidence of the abuse or offense," which provides particularized guarantees of trustworthiness. We agree with the district court below that section 90.803(23) comports with the requirements of the confrontation clauses of both the federal constitution and the Florida Constitution. Accord State v. Myatt, 237 Kan. 17, 697 P.2d 836 (1985); State v. Bellotti, 383 N.W.2d 308 (Minn.Ct.App.1986). ⁵

We also reject Perez' argument that the factors set forth in the statute for the court to consider in determining the reliability of the child victim's statements are too vague to guarantee an accused defendant that the statements bear sufficient indicia of reliability. The reliability of a hearsay declaration is a question to be determined by the court. See § 90.803(23)(a)(1), Fla.Stat. (1985). Accord State v. Superior Court, 149 Ariz. 397, 403, 719 P.2d 283, 289 (Ct.App.1986). The statute sets forth the factors to be considered in determining reliability: time, content, and circumstances. These factors are sufficient to enable the court to determine whether the hearsay is marked with such trustworthiness that " 'there is no material departure from the reason of the general rule' " excluding hearsay. Ohio v. Roberts, 448 U.S. at 65, 100 S.Ct. at 2538 (quoting Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 333, 78 L.Ed. 674 (1934)).

Although the legislature provided a list of various elements that the court may consider in determining whether the time, content, and circumstances of the child victim's statement provide sufficient safeguards of reliability, section 90.803(23)(a)(1), Florida Statutes (1985), the list is not exhaustive, as demonstrated by that portion of the subsection which provides that the court may also consider "any other factor deemed appropriate." Indeed, there could be no exhaustive list of elements to be considered. Each declaration, factually, will present varying elements relevant to the factors of time, content, and circumstance and the determination of reliability cannot rest upon any specific calculation.

Perez next argues that even if the hearsay exception is constitutional, the statute was unconstitutionally applied in his case. The trial judge did not examine the child victim before denying Perez' motions to exclude the hearsay statements and compel the child to testify. Perez contends the trial court must examine the child before determining that testifying in open court would create a substantial likelihood of severe emotional or mental harm. Perez also contends the trial judge must examine the child and make a determination that the child declarant is competent based on an ability to receive just impressions of the facts concerning the event before concluding that sufficient safeguards of reliability are present to allow introduction of the statements. We again disagree.

Absent a showing of an abuse of discretion, the trial judge's finding regarding the likelihood of severe emotional or mental harm to the child due to participating in the trial or proceeding or the trial judge's determination that the out-of-court statements bear sufficient indicia of reliability will be upheld. Cf. Rutledge v....