State v. Dolen, 80-565
| Decision Date | 05 November 1980 |
| Docket Number | No. 80-565,80-565 |
| Citation | 390 So.2d 407 |
| Parties | STATE of Florida, Petitioner, v. Lenard B. DOLEN, Jr., Respondent. |
| Court | Florida District Court of Appeals |
The state petitions for a writ of common law certiorari pursuant to Rule 9.100, Florida Rules of Appellate Procedure, and article V, section 4(b)(3), Florida Constitution, seeking review of a pre-trial order denying the state's motion for a protective order requesting that the discovery deposition of the victim of a sexual battery be taken out of the presence of respondent.
Respondent and one Clifford Glen Snider were arrested and charged with the sexual battery of the woman respondent now seeks to depose. Snider has been convicted and is now serving his sentence for that offense. The state alleges that the witness is a woman of Peruvian descent in her mid-fifties who speaks little or no English, suffers from a heart condition and is fearful of confronting respondent. The witness has already testified in two preliminary hearings and at the trial of Snider.
The record reflects that the trial judge based his determination on the belief that the sixth amendment right to confrontation allowed, if not required, defendant's presence at a discovery deposition and on the failure of the state to present contrary case authority.
Respondent contends that the trial judge's denial of the protective order does not violate the essential requirements of law which is necessary for this court's assumption of jurisdiction. The basis for this contention was that at the hearing the state failed to raise the question of the witness's heart condition or her physical health, and that the litigants must first present an issue to the trial court rather than raise it for the first time on an appellate level.
Article I, section 16 of the Constitution of the State of Florida, states:
In all criminal prosecutions the accused shall ... have the right ... to confront at trial adverse witnesses. (Emphasis added.)
The taking of a deposition of a witness which may or may not be used at trial cannot be construed as a part of the trial within the above constitutional mandate.
The right to take a deposition in criminal proceedings for discovery purposes is afforded by Rule 3.220, Florida Rules of Criminal Procedure. Prior to the adoption of the criminal rules in 1967, a defendant in a criminal prosecution had no right to take discovery depositions. State v. Lampff, 155 So.2d 10 (Fla. 2d DCA 1963), appeal dismissed, 166 So.2d 891 (1964). It is significant to note that the rule permitting a deposition to perpetuate testimony requires the presence of the defendant unless the defendant who is not in custody waives his right to appear. In State v. Basiliere, 353 So.2d 820 (Fla.1978), the Florida Supreme Court discussed the two types of depositions in the context of defendant's sixth amendment right of confrontation. In that case, the defendant was charged with aggravated battery upon Edward Daly. Defense counsel moved to take the deposition of Daly pursuant to Rule 3.220(d). Defendant, in custody, was not present. Daly died before the trial. The state then moved to use the deposition as substantive evidence. The court held that the deposition was inadmissible and that to have perpetuated the testimony, the state should have proceeded under Rule 3.190(j) which requires the defendant's presence during the examination of the witness. Because defendant was not present and his counsel could not have been expected to conduct an adequate cross-examination, the use of the deposition would have violated defendant's sixth amendment right of confrontation. Unless the provisions of Rule 3.190(j) are also met (i. e., defendant is present at the deposition), depositions taken pursuant to Rule 3.220(d) () may be used only for contradiction or impeachment and not as substantive evidence. Id. at 835.
The sixth amendment guarantees the right of an accused to confront the witnesses against him; however, the primary interest secured by the clause is the right of cross-examination rather than the right of physical confrontation. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). An adequate opportunity...
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