Phillips v. State

• Court: Florida District Court of Appeals
• Writing for the Court: M.K. Thomas, J.
• Citation: Phillips v. State, 316 So.3d 779 (Fla. App. 2021)
• Decision Date: 23 April 2021
• Docket Number: No. 1D19-470,1D19-470
• Parties: Terry Jonathon PHILLIPS, Appellant, v. STATE of Florida, Appellee.

316 So.3d 779

Terry Jonathon PHILLIPS, Appellant,

v.STATE of Florida, Appellee.

No. 1D19-470

District Court of Appeal of Florida, First District.

April 23, 2021

Jessica J. Yeary, Public Defender, and Victor Holder, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Damaris Reynolds, Assistant Attorney General, Tallahassee, for Appellee.

M.K. Thomas, J.

Terry Phillips (Appellant) raises three arguments for reversal in this direct appeal of the criminal judgment and sentence against him. He argues reversible error because: 1) the admission of a videotaped copy of the child protection interview (CPI) into evidence during his jury trial violated his Sixth Amendment right to confrontation; 2) he received constitutionally ineffective assistance of counsel when his defense attorney did not object to the entry of the video on confrontation grounds; and 3) his trial was by a six-person jury—rather than one composed of twelve jurors. Appellant concludes that these errors require reversal and a new trial on all counts. Regarding his third issue, he requests that we certify a question of great public importance to the Florida Supreme Court. For the reasons explained herein, we affirm in part, reverse in part, and remand for further proceedings. We decline the request to certify a question of great public importance.

Appellant was tried on six counts. Counts one through five allege he sexually battered his daughter—a child between the ages of two and four during the abuse—in violation of section 794.011(2)(a), Florida Statutes. Count six alleged that he committed lewd and lascivious molestation of the child victim's sexual organs in violation of section 800.04(5)(b), Florida Statutes. A jury found Appellant guilty as charged on counts one, two, five, and six. Appellant was adjudicated guilty and sentenced to life in prison on counts one, two, and five, and twenty-five years in prison on count six. He now appeals these verdicts and sentences.

I. Confrontation Clause

After the mother became concerned and allegations against Appellant were reported to the authorities, the child victim participated in a forensic interview. A video of the CPI was admitted as evidence at trial. On appeal, Appellant first argues that the entry of the CPI into evidence at trial violated his constitutional right "to be confronted with the witnesses against him." Amend. VI, U.S. Const.; see also Art. I, § 16(a), Fla. Const. (requiring that an accused shall have the right "to confront at trial adverse witnesses ...").

Appellant did not raise the confrontation argument at trial, instead settling for a general "standing" objection to anything which would otherwise be hearsay. Because the confrontation argument was not raised and argued below, the issue is not preserved for appeal. See Harrell v. State , 894 So. 2d 935, 940 (Fla. 2005). However, an unpreserved argument is reviewable if it constitutes fundamental error. See § 924.051(3), Fla. Stat. ("An appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not properly preserved, would constitute fundamental error."). For an error to justify reversal absent a timely objection, the error must run so deeply through the trial proceedings that it affects the validity of the trial itself. F.B. v. State , 852 So. 2d 226, 229 (Fla. 2003). The error must be entwined so closely with the verdict that one is forced to conclude that the verdict could not have been obtained without the assistance of the error. Id. Further, "an error is deemed fundamental ‘when it goes to the foundation of the case or the merits of the cause of action and is equivalent to a denial of due process.’ " Id. (quoting J.B. v. State , 705 So. 2d 1376, 1378 (Fla. 1998) ).

Both the United States and Florida constitutions require that a criminal defendant be allowed to confront the witnesses against him. See Amend. VI, U.S. Const.; Art. I, § 16, Fla. Const. Typically, this requirement is satisfied by cross-examination of a witness during live testimony. In some instances, however, hearsay evidence may be offered against a defendant in accordance with one of several exceptions found in sections 90.803 and 90.804, Florida Statutes, in which case in-person cross-examination during trial may not be an option. In such instances, the requirements of the Confrontation Clause must be met for the evidence to be deemed admissible, regardless of whether any challenged evidence is found to meet any of the statutory exceptions to the general prohibition on hearsay. See Crawford v. Washington , 541 U.S. 36, 50–51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ; Frazier v. State , 250 So. 3d 794, 797 (Fla. 1st DCA 2018) (explaining that, "even though the Legislature balanced the defendant's rights, admission of the child hearsay statements under section 90.803(23) can still violate a defendant's constitutional rights"). Where the Confrontation Clause applies, the admissibility of any hearsay evidence is ultimately conditioned on the source of the hearsay being unavailable as a witness at trial and on the existence of a prior opportunity for the defense to have cross-examined said witness. Crawford , 541 U.S. at 59, 124 S.Ct. 1354.

The threshold question is whether the requirements of the Confrontation Clause apply to any particular piece of hearsay evidence. As the Supreme Court has explained, not all hearsay implicates the concerns of the Confrontation Clause; therefore, not all hearsay falls within the scope of its protections. See id. at 51, 124 S.Ct. 1354. The "principal evil at which the Clause was directed" was the use of "ex parte examinations as evidence against the accused." Id. at 50, 124 S.Ct. 1354. "Where nontestimonial hearsay is at issue," the Confrontation Clause is not implicated, and the admissibility of any hearsay evidence is wholly governed by the controlling laws of evidence. Id. at 68, 124 S.Ct. 1354. However, where a piece of hearsay evidence bears a "testimonial character," it is covered by the Confrontation Clause, and admissibility will also be dependent on unavailability and a prior opportunity for cross-examination." Davis v. Washington , 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).

The Supreme Court has not endorsed any specific definition for what constitutes a "testimonial" statement subject to the Confrontation Clause but has offered that, "[r]egardless of the precise articulation, some statements qualify under any definition," such as ex parte testimony offered at a preliminary hearing and statements taken by the police during an interrogation. See Crawford , 541 U.S. at 52, 124 S.Ct. 1354. The Supreme Court has further explained what constitutes a testimonial statement as follows:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Davis , 547 U.S. at 822, 126 S.Ct. 2266.

In Davis , the Supreme Court returned to the central theme of Crawford in reiterating that it was the "testimonial character" of certain hearsay statements that caused them to be covered by the Confrontation Clause. Id. at 821, 126 S.Ct. 2266. There, the Supreme Court was addressing statements made by a victim of domestic violence to a 911 operator during an ongoing emergency. Id. at 817, 126 S.Ct. 2266. The Court concluded that the statements made during the 911 questioning simply did not rise to the level of the victim testifying as a witness, as contemplated by the Confrontation Clause. Id. at 828–29, 126 S.Ct. 2266. The court in Davis noted that the statements described an ongoing emergency as it was occurring, as contrasted with the questioning of the victim in Crawford , which took place hours after the incident ended. Id. at 827, 126 S.Ct. 2266. "[V]iewed objectively," the statements "were necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford ) what had happened in the past." Id. Therefore, because "the circumstances of [the 911] interrogation objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency," the statements were found not to be a " ‘weaker substitute for live testimony’ at trial."¹ Id. (quoting United States v. Inadi , 475 U.S. 387, 394, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986) ).

In contrast, hearsay is testimonial "when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." State v. Contreras , 979 So. 2d 896, 903 (Fla. 2008) (quoting Davis , 547 U.S. at 822, 126 S.Ct. 2266 ). Contreras specifically addressed the question of whether the statements of a child victim taken during a CPI violated a defendant's right to confrontation. In finding the child hearsay at issue bore the testimonial character contemplated in the Sixth Amendment, the supreme court noted that child protection teams (CPT) are statutorily tied to local law enforcement and prosecuting agencies, and that one of the statutory purposes of CPTs is to provide testimony in court. Id. This supported their conclusion that such interviews were largely motivated by a search for evidence. Id. In concluding the CPT statements were testimonial, the court stated:

In light of the police presence and the electronic connection, we conclude that the CPT coordinator was serving as a police proxy in this interview. This is reinforced by the statutory connection of the CPT to such investigations and

...