State v. Contreras

• Decision Date: 13 March 2008
• Docket Number: No. SC05-1767.,SC05-1767.
• Citation: 979 So.2d 896
• Parties: STATE of Florida, Petitioner, v. Rodolfo CONTRERAS, Respondent.
• Court: Florida Supreme Court

979 So.2d 896

STATE of Florida, Petitioner, v. Rodolfo CONTRERAS, Respondent.

No. SC05-1767.

Supreme Court of Florida.

March 13, 2008.

Bill McCollum, Attorney General, Tallahassee, FL, Celia Terenzio and Melanie Dale Surber, Assistant Attorneys General, West Palm Beach, FL, for Petitioner.

Valentin Rodriguez, Jr. of the Law Offices of Valentin Rodriguez, P.A., West Palm Beach, FL, for Respondent.

QUINCE, J.

This case is before the Court for review of the decision of the Fourth District Court of Appeal in Contreras v. State, 910 So.2d 901 (Fla. 4th DCA 2005). The district court certified that its decision is in direct conflict with the Fifth District Court of Appeal's decision in Blanton v. State, 880 So.2d 798 (Fla. 5th DCA 2004), approved, 978 So.2d 149 (Fla. 2008), on the issue of whether a discovery deposition can satisfy the Crawford requirement of a prior opportunity for cross-examination of a witness. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons expressed in this opinion, we approve in part and quash in part the decision of the Fourth District in this case.

FACTS AND PROCEDURAL HISTORY

Rodolfo Contreras was convicted of sexual battery and lewd and lascivious molestation of his daughter when she was nine years old. The coordinator of a Child Protection Team (CPT) took the daughter's statement at a local domestic violence victims' shelter. The statement was videotaped and a police detective in a different room was electronically connected to the interviewer and was able to suggest questions to the interviewer. The daughter stated that Contreras had committed sexual acts on her on one particular night. She stated that Contreras had touched her, kissed her all over, touched her "pee pee" with his private part, and that it "hurted." Contreras was charged with capital sexual battery on his daughter based on this videotaped statement.

Six months later, the defense counsel assigned to Contreras's case took a discovery deposition from the daughter. Contreras was not present during the deposition. In substance, the deposition was not different from the daughter's earlier videotaped statement. Ten months after the first deposition, Contreras's new defense counsel was granted permission to take another discovery deposition because prior defense counsel had destroyed his discovery notes. The judge watched the second deposition from another room via closed circuit television in order to rule on any objections raised during the questioning.

In this second deposition, the daughter stated that she expected to be questioned again before trial and at the trial and that she did not expect to be nervous at trial because defense counsel would probably ask her the same questions. The daughter also revealed new information. She had asked to see her videotaped statement before giving the second deposition because she "didn't have such a good memory" of the incident and was having problems remembering what had happened. She had watched the videotape before she gave her second deposition in order to say the same things during the deposition if she had trouble remembering the facts. During the initial videotaped statement, she had tried to tell the CPT interviewer what she thought the interviewer wanted to hear. She did not have a good understanding of her anatomy or how to describe the incident at the time she gave the videotaped statement, but had since learned the difference between a "vagina" and a "pee pee." She did not know what "penetrate" meant, but her father did not "stick himself inside her." She remembered talking to someone in a previous interview and not wanting to tell the truth because her mother was present. She has related the incident to a lot of different people, including law enforcement officers, therapists, and attorneys. She knows the incident was not her fault and that it happens to a lot of young girls.

The case did not go to trial until the daughter was thirteen years old. The State initially moved to have the daughter testify via closed circuit television. However, a few days later the State amended its request, asked that the daughter be declared unavailable for trial, and requested to use her initial videotaped statement to the CPT interviewer instead. A psychologist opined that the daughter would suffer emotional and psychological harm if required to testify in person. The trial court found the daughter to be unavailable based on the expert's opinion and admitted the videotaped statement.

At trial, the State's evidence consisted of this videotaped statement; the father's confession to molestation and perhaps union with the child's genitals, but not penetration; and the mother's testimony that she saw Contreras and the daughter in differing stages of undress afterward. The CPT interviewer corroborated the substance of the videotaped statement. A doctor found no physical evidence of molestation.

At the close of the State's case, Contreras moved for a judgment of acquittal based on the State's failure to prove a prima facie case. Contreras argued that the only evidence of the element of penetration was the daughter's videotaped statement, during which he had not been able to cross-examine her. The trial judge denied the motion, ruling that, while confrontational cross-examination is preferable, the daughter's videotaped statement was corroborated by other evidence. When defense counsel renewed his motion at the close of all evidence, the trial judge ruled that Contreras was not denied his right of confrontation because he was given the opportunity to depose the victim at the deposition that was not offered into evidence at trial. The judge also reiterated that the State's case contained a "tremendous amount of credible and consistent evidence" and that the State's witnesses corroborated each other. Contreras was convicted and appealed to the Fourth District Court of Appeal.

On appeal, the Fourth District addressed Contreras's claim that his Sixth Amendment Confrontation Clause rights were violated by the State's introduction of the victim's videotaped pretrial statement as the primary evidence of guilt. Contreras v. State, 910 So.2d 901 (Fla. 4th DCA 2005). The Fourth District concluded that the victim's statements to the CPT interviewer were testimonial under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), because of the statutes dealing with Child Protection Teams. Contreras, 910 So.2d at 905.¹ The Fourth District noted that other states with functional equivalents of Florida's CPTs have held similar statements to be testimonial. Id. at 906.

The Fourth District also concluded that even if the use of the CPT videotaped statement complied with the Confrontation Clause under this Court's previous decisions in State v. Townsend, 635 So.2d 949 (Fla.1994), and Perez v. State, 536 So.2d 206 (Fla.1988), it did not satisfy the requirements of Crawford. The Fourth District noted that Townsend and Perez were based on Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which is no longer applicable to Confrontation Clause challenges in the wake of Crawford. The Fourth District also held that the trial court's finding that the child victim was unavailable to testify under section 90.803(23), Florida Statutes (2002), did not satisfy the Confrontation Clause requirement of physical unavailability as provided in Crawford. The Fourth District concluded that unavailability for Confrontation Clause purposes requires something more than subjective mental anguish and emotional scarring from testimony. The Fourth District certified conflict with Townsend and Perez on this issue.² Contreras, 910 So.2d at 906-08.

The Fourth District also certified conflict with the Fifth District's decision in Blanton v. State, 880 So.2d 798 (Fla. 5th DCA 2004), on the issue of whether a discovery deposition can satisfy the Crawford requirement of a prior opportunity for cross-examination of a witness. The Fourth District stated that had the discovery deposition of the child victim been admitted into evidence along with the CPT statement, it might have satisfied the right to confrontation. However, the Fourth District noted, it was the State's decision to only present the ex-parte CPT statement and the defendant had no responsibility to "clean up" the State's evidence against him in his criminal trial. Contreras, 910 So.2d at 908 n. 1. Further, the Fourth District noted, Contreras was not present at either of the depositions of the victim. The Fourth District ruled that where a statement is testimonial under Crawford, the prior opportunity for cross-examination under the Sixth Amendment requires face-to-face confrontation of a defendant and the witness against him. Thus, the Fourth District concluded, the "opportunity for cross-examination" at the later depositions did not save the State's reliance on the CPT statement. Contreras, 910 So.2d at 908-09.

However, the Fourth District distinguished its holding from that of the First District Court of Appeal in Lopez v. State, 888 So.2d 693 (Fla.1st DCA 2004), approved, 974 So.2d 340 (Fla.2008), which held that a criminal discovery deposition could never satisfy Crawford's prior cross-examination requirement. The Fourth District stated that it could "envision circumstances where [a] defendant is aware of the State's intention to use a prior testimonial statement, is present at a deposition, and so conducts the cross examination of the witness that it might satisfy Crawford." Contreras, 910 So.2d at 909. Finally, the Fourth District concluded that the Crawford violation was not harmless error, as the erroneously admitted statement was the "single most persuasive evidence of [Contreras's] guilt." Id. at 910 (quoting People v. Vigil, 104 P.3d 258, 265 (Colo.Ct.App.2004), aff'd in part and rev'd in part, 127 P.3d 916 (Colo.2006)).

The State sought review of the Fourth District's decision by this Court on...