Russell v. State

• Decision Date: 01 May 2008
• Docket Number: No. SC06-335.,SC06-335.
• Citation: 982 So.2d 642
• Parties: Anthony K. RUSSELL, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

982 So.2d 642

Anthony K. RUSSELL, Petitioner, v. STATE of Florida, Respondent.

No. SC06-335.

Supreme Court of Florida.

May 1, 2008.

James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, FL, and Pamela J. Koller and Kellie A. Nielan, Assistant Attorneys General, Daytona Beach, Florida, for Respondent.

QUINCE, J.

Petitioner Anthony Russell seeks review of the decision of the Fifth District Court of Appeal in Russell v. State, 920 So.2d 683 (Fla. 5th DCA 2006), on the ground that it expressly and directly conflicts with a decision of the Fourth District Court of Appeal in Santiago v. State, 889 So.2d 200 (Fla. 4th DCA 2004), and the Second District Court of Appeal in Colwell v. State, 838 So.2d 670 (Fla. 2d DCA 2003), and Colina v. State, 629 So.2d 274 (Fla. 2d DCA 1993), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons that follow, we approve the decision of the Fifth District Court of Appeal in Russell, disapprove the decision of the Fourth District Court of Appeal in Santiago, and disapprove the decisions of the Second District Court of Appeal in Colwell and Colina to the extent that they are inconsistent with this opinion. We hold that the decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), is not applicable to probation revocation proceedings and that the trial court properly revoked Russell's probation.

FACTS AND PROCEDURAL BACKGROUND

Anthony Kalick Russell pled guilty in 2002 to one count of carrying a concealed firearm. In January 2003, the trial court withheld adjudication and placed him on two years' probation. In November 2003, Russell pled guilty to a charge of sexual battery upon a child under the age of sixteen. The court sentenced him as a youthful offender to 365 days in the county jail followed by five years of sex offender probation, with the composite sentence to run concurrently with his existing probation. On October 1, 2004, a notice of violation of probation was filed alleging that Russell failed to report and submit written monthly reports, failed to perform his fifty hours of public service, and failed to make payments towards his court costs and fines.

On October 14, 2004, Marion County Sheriff's Deputy Raymond Torrellas was dispatched to a gas station in response to a battery call, where he met Russell's girlfriend, Nicole D'Alessandro. She told the deputy what had just transpired and wrote out a statement. Russell was arrested later that evening and charged with aggravated battery on a pregnant person. On October 20, 2004, an addendum to the October 1 notice of violation was filed to include the alleged battery as a violation of probation. Russell denied the battery allegation and demanded a hearing.

Russell's Probation Revocation Hearing

At the July 15, 2005, probation violation hearing, the victim did not testify and Deputy Torrellas related the above version of the incident. The detective testified that the victim seemed nervous and scared when he arrived some ten minutes after the call. He observed a red mark on the back of the victim's neck that was consistent with her story. Although Polaroid pictures of the bruise had been taken, they were not presented at the hearing. Over objections on the ground of hearsay within hearsay, the State introduced a copy of the victim's handwritten statement, which stated the following:

Anthony Russell (my boyfriend) and me Nicole D'Alessandro were going to vacuum my car before I take him to his sex offenders class. We were fighting [at the BP] about me not dropping him off. He wanted to go by himself and I said no because I had things to do. So we kept fighting and as I told him no as I turned around and he hit me in the back of the neck and I went to grab my key out of the car & he pulled me back & pulled my hair. So I got away & ran to the BP & he pulled off w/ my car.

Trial counsel further objected that use of the statement would violate Russell's Sixth Amendment right to confrontation. The trial judge responded that it could be "quadruple hearsay" and still be admissible in a probation violation hearing, but it could not be the sole basis to find a violation.

The detective further testified that he arrested Russell that evening and read him his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He stated that Russell did not initially want to make any statement but, nonetheless, began a conversation en route to the jail. The detective testified that Russell admitted knowing that the victim was pregnant, but said that he did not believe that he was the baby's father. Russell also told the detective that he does not hit the victim, "he just roughs her up." On cross-examination, the detective admitted that his police report did not mention the reading of Miranda rights or Russell's knowledge of the victim's pregnancy. The detective said that he remembered this particular arrest because Russell cried on the way to the station.

Russell testified at the hearing regarding the missing probation reports and his failure to make scheduled payments toward his court costs, but he invoked his Fifth Amendment right regarding the battery allegation. In closing, trial counsel argued that the reporting and financial violations were neither willful nor substantial. As to the battery violation, trial counsel raised Crawford v. Washington as an objection to the admission of the victim's written statement. Counsel also argued that the State failed to present a prima facie case of battery on a pregnant woman, contending that the victim was admittedly not visibly pregnant and that Russell's acknowledgement of the pregnancy should be suppressed because it was questionable whether he had even been read his Miranda rights.

The court found Russell guilty of the battery violation by the greater weight of the evidence and found him not guilty of all other allegations of violation. The court emphasized that "absolutely no weight" was given to the victim's written statement. The court stated that it relied upon both hearsay and non-hearsay and found the officer's testimony to be credible. The court adjudicated Russell guilty of the 2003 sexual battery charge and sentenced him to fifteen years on that charge and five years on the 2001 weapons charge. On July 20, 2005, Russell was acquitted of the battery charge in a jury trial. The court rendered its final order of violation of probation on July 26, 2005. Soon thereafter, the court denied Russell's motion to mitigate the sentence based on the acquittal.

Russell appealed to the Fifth District, which affirmed the revocation. Russell v. State, 920 So.2d 683 (Fla. 5th DCA 2006). The Fifth District acknowledged contrary authority in Santiago, Colwell, and Blair v. State, 805 So.2d 873 (Fla. 2d DCA 2001), but it held that its decision was controlled by its prior ruling in Arndt v. State, 815 So.2d 674 (Fla. 5th DCA 2002), where it found the hearsay statement of the victim coupled with the officer's observation of injury sufficient to prove a probation violation. This Court granted review based on the express and direct conflict.

ANALYSIS

The case presents the Court with two issues: (1) whether admission of hearsay from the alleged victim denied the defendant his Sixth Amendment right to confrontation; and (2) whether the trial court erred in sustaining the revocation of probation based only upon the hearsay statements of the victim and observation of an injury to the victim.

Crawford Issue

The first issue in the case is whether the admission of hearsay testimony from the victim denied Russell his Sixth Amendment right to confrontation. Russell contends that the victim's statements are testimonial hearsay under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and further contends that Crawford applies to probation revocation proceedings because such proceedings are criminal prosecutions. Russell argues that, as a result, he was denied his constitutional right to confront and cross-examine the only witness to the alleged battery, the victim, because she did not appear at the revocation hearing.

Although jurisdiction in this case is based upon express and direct conflict regarding the legal sufficiency of the non-hearsay evidence needed to revoke probation, having granted jurisdiction, this Court may examine all issues raised and argued before the lower court. See Savoie v. State, 422 So.2d 308, 310 (Fla.1982).

In Crawford, the United States Supreme Court held an out-of-court testimonial statement of an unavailable declarant is not admissible at a criminal trial unless the defendant had a prior opportunity to cross-examine the declarant. If these requirements are not satisfied, the Confrontation Clause requires exclusion of the evidence. The Crawford decision applies specifically to the use of testimonial statements during a criminal prosecution. However, we recently addressed the issue of whether Crawford applies to probation revocation proceedings in Peters v. State, No. SC06-341, ___ So.2d ___, 2008 WL 1901668 (Fla. May 1, 2008), as a certified question of great public importance.¹ In Peters, we held that revocation of probation or community control proceedings are not criminal prosecutions and therefore Crawford does not apply to revocation proceedings. Accordingly, because Crawford addresses the use of testimonial hearsay only in the context of criminal prosecutions, the decision does not apply to Florida revocation proceedings.

Violation of Probation Proceeding

The second issue is whether a trial court may find that a violation of probation for an alleged battery has been proven by a preponderance of the evidence through a hearsay statement of the victim, which would be inadmissible at trial, and non-hearsay testimony of direct...