Salter v. State, BI-266
| Citation | 500 So.2d 184,11 Fla. L. Weekly 1947 |
| Decision Date | 11 September 1986 |
| Docket Number | No. BI-266,BI-266 |
| Parties | 11 Fla. L. Weekly 1947 Larry SALTER, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Henry R. Barksdale, Pensacola, for appellant.
Jim Smith, Atty. Gen., Kurt L. Barch, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant appeals his conviction for a lewd and lascivious assault upon a five year old girl. We find that there was competent, substantial evidence to support his conviction and that the error in permitting the hearsay testimony of the Child Protection Team counselor was harmless.
On the afternoon of March 7, 1985, the child's mother and a friend observed appellant driving a truck from the direction of some woods. The child was on some leaves in the back of the open-bed truck. Both women testified that when the truck stopped in an area to dump the leaves, the girl jumped from the truck and ran to her mother crying. After a few minutes, she told them that appellant had unzipped her pants and touched her privates. Both women testified that the child's pants were partially unzipped and her clothing was wrinkled. The child also testified at appellant's trial, relating that appellant pulled her pants down and touched her in the vaginal area.
After the incident, the child was taken to the doctor and was interviewed by a counselor of the Child Protection Team. The counselor was permitted to testify, over a hearsay objection, that the child told her that a man had touched her on her private parts out in the woods, when she was on some leaves in a truck.
Comments made by the trial court and counsel below indicate that the trial court was probably traveling under the erroneous impression that the newly enacted hearsay exception for the statement of a child victim of a sexual offense 1 automatically apply to this testimony by the counselor.
Authorities indicate that in order to balance the need for reliable out-of-court statements of child abuse victims against the rights of the accused, the Legislature enacted this exception which will apply only if a number of foundation requirements have been shown to exist. Ehrhardt, Florida Evidence, § 803.23(a) (2d Ed.1984). Specifically, before the trial court may admit the statement of a child who testifies during the trial under this exception, the trial court is required to (1) hold a hearing outside the presence of the jury to determine that the circumstances surrounding the making of the statement demonstrate that the statement is reliable, and (2) make specific findings of fact on the record setting forth the reasons why the trial court determined that the statement was reliable and why the reasons indicating lack of reliability were discounted. Finally, the prosecution is required to give the defendant notice of its intent to offer at trial a statement under this exception, such notice to include the contents of the child's statement, the time the statement was made, the circumstances surrounding the statement which indicates its reliability, and any other particulars "necessary to provide full disclosure of the statement." Id.
In this case, neither the court nor the prosecuting attorney complied with the procedural safeguards written into the statute, and accordingly the counselor's testimony was not admissible under this hearsay exception.
The state argues that the statement was admissible nevertheless under the excited utterance exception to the hearsay rule. See § 90.803(2), Fla.Stat. (1985). However, the child's statement to the counselor was made several hours after the incident and the state failed to demonstrate that it was made when the child was still in an "excited" state of mind and before she had an opportunity to reflect or deliberate. Begley v. State, 483 So.2d 70 (Fla. 4th DCA 1986); Jackson v. State, 419 So.2d 394 (Fla. 4th DCA 1982); and Lyles v. State, 412 So.2d 458 (Fla. 2d DCA 1982). Compare, Fitter v. State, 261 So.2d 512 (Fla. 3d DCA 1972) (...
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