State v. Abreu

• Decision Date: 09 January 2003
• Docket Number: No. SC01-2596.,SC01-2596.
• Parties: STATE of Florida, Appellant, v. Jose ABREU, Appellee.
• Court: Florida Supreme Court

837 So.2d 400

STATE of Florida, Appellant, v. Jose ABREU, Appellee.

No. SC01-2596.

Supreme Court of Florida.

January 9, 2003.

Charlie Crist, Attorney General, Celia A. Terenzio, Bureau Chief, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, FL, for Appellant.

Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Appellee.

WELLS, J.

We have on appeal Abreu v. State, 804 So.2d 442 (Fla. 4th DCA 2001), a decision of the Fourth District Court of Appeal declaring invalid a state statute. We have jurisdiction, see art. V, § 3(b)(1), Fla. Const., and conclude that section 90.803(22), Florida Statutes (1999), is unconstitutional in criminal proceedings to the extent that it allows the prosecutor to use at trial a witness's testimony from a previous judicial proceeding without a showing by the prosecutor that the witness is unavailable. We affirm the Fourth District's decision in Abreu.

Appellee Jose Abreu was charged with and subsequently convicted of burglary of a dwelling. During the first trial, Jeffrey Eckman was the State's key witness, and he testified in person. Abreu's first trial ended in a mistrial declared after the jury deadlocked. On retrial, the trial court granted the State's request pursuant to section 90.803(22), Florida Statutes (1999), to present Eckman's testimony from the first trial in lieu of his live testimony. Abreu repeatedly objected to the presentation of the former testimony and asserted that the Sixth Amendment of the United States Constitution and article I, section 16(a) of the Florida Constitution guaranteed him the right to confront his accuser. Over Abreu's objection, Eckman's former trial testimony was read to the jury.

Eckman, who was apparently ill, moved out of the state after the crime occurred but before the first trial. The prosecutor secured Eckman's presence for the first trial. The record from Abreu's second trial reveals that the prosecutor told the trial judge that Eckman had become uncooperative and it was unlikely that Eckman would return to Florida for the retrial. The State, however, did not attempt to have Eckman declared unavailable for purposes of the retrial, and the record does not contain any supporting documentation that the State attempted to secure Eckman's attendance for the retrial. The record also reveals no express finding by the trial court that Eckman was unavailable.

Abreu appealed the admission of the former testimony. The Fourth District agreed with Abreu's objections, reversed his conviction, and remanded for a new trial. Abreu, 804 So.2d at 444-45. That court determined that a 1998 amendment to section 90.803(22) effectively removed the unavailability requirement of section 90.804(2)(a), Florida Statutes (1999), as a prerequisite to the use of former testimony in lieu of live testimony. See Abreu, 804 So.2d at 443

. Prior to 1998, only section 90.804(2)(a) governed the admission of former testimony in criminal proceedings, and it required that the witness be unavailable. At the same time, section 90.803(22) allowed the admission, notwithstanding a declarant's availability, of "[f]ormer testimony given by the declarant at a civil trial, when used in a retrial of said trial involving identical parties and the same facts." The 1998 amendment, however, greatly expanded the scope of section 90.803(22) to allow, notwithstanding a declarant's availability, the admission of

[f]ormer testimony given by the declarant which testimony was given as a witness at another hearing of the same or a different proceeding ... if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination....

This amendment appeared to allow the introduction of former testimony at not only civil but also criminal trials without a showing of unavailability. After reviewing federal Sixth Amendment jurisprudence, however, the Fourth District concluded that "live testimony may not be constitutionally supplanted with former testimony in criminal cases absent a showing of unavailability." Id. at 444. Based upon this conclusion, the Fourth District held section 90.803(22) unconstitutional as applied in all criminal cases, absent a showing of unavailability. Id.

In the instant case, the record does not show that the prosecutor demonstrated or even asked the trial court to declare that witness Eckman was unavailable for the second trial. Thus, the issue before this Court is whether section 90.803(22) is contrary to the Sixth Amendment of the United States Constitution by authorizing the use of a witness's testimony from a previous judicial proceeding in the trial of a criminal defendant in the absence of demonstrated unavailability.

The Sixth Amendment of the United States Constitution states in pertinent part that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." The Supreme Court of the United States has stated that the Sixth Amendment requires that witnesses generally must testify in person. However, the Court has also held that former testimony may be used at trial when a witness is unavailable due to death. See Mattox v. United States, 156 U.S. 237, 242-44, 15 S.Ct. 337, 39 L.Ed. 409 (1895)

. The Court in Barber v. Page, 390 U.S. 719, 722, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), explained that prior to a finding by the trial court that a prosecutorial witness is unavailable for trial, the burden is on the State to demonstrate good-faith efforts at securing the witness's presence for trial. See also Berger v. California, 393 U.S. 314, 315, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969) ("[T]he absence of a witness from the jurisdiction would not justify the use at trial of preliminary hearing testimony unless the State had made a good-faith effort to secure the witness' presence.").

In Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the Court held that, based upon this constitutional requirement, a prosecutor must demonstrate a witness's unavailability prior to allowing at a trial former testimony from a previous judicial proceeding. In Roberts, the former testimony was garnered at a preliminary hearing, and the witness's preliminary hearing testimony was read to the jury at trial. The Supreme Court explained:

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."

....

In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate "indicia of reliability."

Id. (emphasis added) (citations and footnote omitted).

We recognize that subsequently, in United States v. Inadi, 475 U.S. 387, 392-93, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986), and White v. Illinois, 502 U.S. 346, 354, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992), the Court limited Roberts to a resolution of only the issue before the Court at that time and not as addressing all out-of-court statements. However, both Inadi and White expressly state that a showing of unavailability is constitutionally required by the Confrontation Clause of the Sixth Amendment where a prosecutor seeks to use former testimony from a previous judicial proceeding in lieu of live testimony. Inadi, 475 U.S. at 394,106 S.Ct. 1121; White, 502 U.S. at 354,112 S.Ct. 736.

The issue in Inadi was whether the Confrontation Clause requires the government to demonstrate that a nontestifying coconspirator is unavailable to testify as a prerequisite for admission of that coconspirator's out-of-court statements. Inadi, 475 U.S. at 388, 106 S.Ct. 1121. In addressing this claim, the Supreme Court limited the unavailability requirement of Roberts to the situation described in Roberts, i.e., testimony from a prior judicial proceeding proffered in place of live testimony at trial. Id. at 392-93, 106 S.Ct. 1121. The Supreme Court observed:

The Confrontation Clause analysis in Roberts focuses on those factors that come into play when the prosecution seeks to admit testimony from a prior judicial proceeding in place of live testimony at trial. See Fed. Rule Evid. 804(b)(1). In particular, the Roberts Court examined the requirement, found in a long line of Confrontation Clause cases involving prior testimony, that before such statements can be admitted the government must demonstrate that the declarant is unavailable. All of the cases cited in Roberts for this "unavailability rule" concern prior testimony. In particular, the Court focused on two cases, Barber and Mancusi, that directly "explored the issue of constitutional unavailability." 448 U.S. at 76, 100 S.Ct. 2531. Both cases specifically limited the unavailability requirement to prior testimony. Barber, supra, at 722, 88 S.Ct. 1318; Mancusi, supra, at 211, 92 S.Ct. 2308.

Roberts must be read consistently with the question it answered, the authority it cited, and its own facts. All of these indicate that Roberts simply

...