State v. Basiliere
Decision Date | 20 October 1977 |
Docket Number | No. 50658,50658 |
Citation | 353 So.2d 820 |
Parties | STATE of Florida, Plaintiff, v. Ronald BASILIERE, Defendant. |
Court | Florida Supreme Court |
Richard E. Gerstein, State Atty., and George Volsky, Asst. State Atty., Miami, for plaintiff.
Bennett H. Brummer, Public Defender, Julian S. Mack and Thomas S. Wilson, Jr., Asst. Public Defenders, Miami, for defendant.
We have before us certified questions from the Circuit Court of the Eleventh Judicial Circuit, in and for Dade County, relating to the use of deposition testimony as evidence in a criminal trial upon a finding of unavailability of the witness. It appears that the questions presented herein are determinative of the cause and are without controlling precedent in this state. We have jurisdiction to answer the certified questions. Florida Appellate Rule 4.6, Jaworski v. City of Opa-Locka, 149 So.2d 33 (Fla.1963), Boyer v. City of Orlando, 232 So.2d 169 (Fla.1970).
Ronald Basiliere was charged with aggravated battery upon Edward Daly. Defendant's attorney filed a notice to take the deposition of Daly pursuant to Florida Criminal Procedure Rule 3.220(d). The victim appeared at the deposition and was examined, under oath and in the presence of an official court reporter, by defense counsel although defendant, in custody at the Dade County jail, was not present during the taking of said deposition. Following the taking of his deposition, the victim became unavailable as a result of his death from natural causes. Because the deposition testimony is material to the state's case, the state will be unable to proceed with the case without the deposition testimony. Therefore, the state has filed a motion to use the deposition testimony of the victim as evidence in the defendant's trial.
The trial court has certified the following questions as dispositive of the cause:
Section 16 of the Declaration of Rights, Florida Constitution, provides in pertinent part:
"In all criminal prosecutions the accused . . . shall have the right . . . to confront at trial adverse witnesses."
Florida Criminal Procedure Rule 3.220(d) provides in part:
"
Rule 3.190(j), Florida Criminal Procedure Rules, which relates to depositions to perpetuate testimony, provides:
We find that, under the circumstances presented sub judice and rules of this Court, the deposition of the victim is not admissible as evidence in defendant's trial.
Defendant was in custody at the time the deposition was taken. In order to perpetuate Daly's testimony, the state would have had to proceed under Fla.R.Crim.P. 3.190(j), which requires, inter alia, the defendant's presence during the examination of the witness.
Blackwell v. State, 79 Fla. 709, 86 So. 224 (1920), involved inter alia the objection to introduction of testimony given at a former trial of the case of two witnesses who had become unavailable for the new trial due to illness. This Court held:
In Richardson v. State, 247 So.2d 296 (Fla.1971), this Court was confronted with the question of whether the trial court erred in allowing several state witnesses to testify as to their recollection of one Ernell Washington's testimony at Richardson's preliminary hearing regarding Richardson's confession to the poisoning of his children. Richardson was present and was represented by counsel at the time Washington testified. At this time, defense counsel cross-examined Washington. Washington was murdered before trial. No court reporter had been present at the preliminary hearing to transcribe his testimony. Therein, this Court explicated:
"A time-honored and universally recognized exception to the hearsay rule is the so-called 'former testimony' exceptions. Under this rule, evidence of third parties as to the testimony of a deceased witness given under oath in a preliminary hearing or other judicial proceeding where the defendant was represented by counsel, had opportunity to confront and cross-examine the witness, is admissible in a subsequent trial.
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State v. Belvin
...an adequate cross-examination as to matters of which he first gained knowledge at the taking of the deposition." State v. Basiliere, 353 So.2d 820, 824-25 (Fla.1977). This is especially true if the defendant is "unaware that this deposition would be the only opportunity he would have to exa......
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State v. Contreras
...Id. at 725, 88 S.Ct. 1318 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)); see also State v. Basiliere, 353 So.2d 820, 824 (Fla.1977) (concluding that defendant did not his constitutional right of confrontation because, at the time of deposition, the defe......
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Corona v. State
...functional substitute for in-court confrontation of the witness.Blanton, 978 So.2d at 155 (citations omitted) (quoting State v. Basiliere, 353 So.2d 820, 824–25 (Fla.1977)); see also Lopez, 974 So.2d at 347–50. Based on our analyses in Lopez and Blanton, it is clear that Corona lacked the p......
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Palm Beach Newspapers, Inc. v. Burk, 83-422
...in custody, his presence at the deposition, and a showing that attendance of the witness cannot be procurred at the trial. State v. Basiliere, 353 So.2d 820 (Fla.1978).3 Of course, depositions taken to perpetuate testimony, different from discovery depositions, would be admissible. See Fla.......