State v. Ford
| Decision Date | 10 November 1993 |
| Docket Number | No. 79220,79220 |
| Citation | 626 So.2d 1338 |
| Court | Florida Supreme Court |
| Parties | , 18 Fla. L. Weekly S597 STATE of Florida, Petitioner, v. Rufus FORD, Respondent. |
Robert A. Butterworth, Atty. Gen., and Stephen A. Baker and Peggy A. Quince, Asst. Attys. Gen., Tampa, for petitioner.
James Marion Moorman, Public Defender, and Stephen Krosschell, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for respondent.
We have for review Ford v. State, 592 So.2d 271 (Fla. 2d DCA 1991), which expressly construes the constitutional right to confrontation 1 and expressly conflicts with Hernandez v. State, 597 So.2d 408, 409 n. 2 (Fla. 3d DCA 1992). We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution.
This case presents three issues: (1) whether a judge must have express statutory authority or a rule of court to employ a procedure that deviates from a defendant's right of face-to-face confrontation in a criminal trial, (2) whether the trial court's admission of a child witness's videotaped testimony in a homicide case violated the defendant's constitutional right to confrontation, and (3) if the admission of the child witness's videotaped testimony violated the defendant's right to confrontation, whether the defendant is entitled to a new trial.
First, we hold that absent appropriate authority 2 a trial court in a criminal case may employ a procedure if necessary to further an important public policy interest. In this case, though, the procedure employed was improper, and we find that the trial court erred in admitting the child witness's testimony by way of videotape. However, we disapprove the district court's holding that the improper admission of a child witness's testimony is an automatic basis for reversal.
Second, we hold that the videotaped testimony lacked sufficient indicia of reliability. Thus, the trial court should not have admitted the videotaped testimony.
Finally, we hold that the violation of the defendant's right to confrontation by admission of the videotaped testimony is subject to the harmless error analysis and that the error in this case was harmful. Therefore, we approve the reversal of the judgment and order the case remanded for a new trial.
We adopt the district court's rendition of the facts, which were set out as follows:
[Rufus] Ford married Sybil Ford on September 29, 1987. Tamara Alcendor, four years old at the time, was Sybil's natural daughter but not Ford's daughter. Ford and Sybil had a daughter, Jennifer. During the trial, a neighbor who lived six apartments away from the Fords, testified he was sitting on his front porch on the night of November 10, 1987, when he saw Ford drive to his house and park in the front yard. Sybil walked to the car and spoke to Ford, then returned to the house. Ford, with some shopping bags, walked into the house shortly thereafter. The neighbor testified that Ford came out several minutes later, holding his head, crying, was very upset, and asked him to call the police.
When the paramedics arrived, followed later by the police, they saw Ford running around the front yard, hysterical and saying that his wife was dead. The two children were inside a car. The officers entered the house and found Sybil in a second floor bedroom dead of a gunshot wound. Sybil sat against the wall with her right arm on the night stand. The investigating officer saw gun powder in her mouth. Blood was splattered on the wall behind her body. Two officers separately talked with Ford outside of the house. He had no blood on his body or clothing. Corporal Queen testified that Ford told him that after he arrived he went inside and put some beer on a table. Ford heard a loud boom, went upstairs and saw Sybil lying on the floor. He went outside with one of the children and returned for the other child.
Two fingerprints were found on the shotgun, but one had no comparison value and the other did not match either Ford's or Sybil's prints. The medical examiner testified that the stippling pattern, the size of the wound, the gas lacerations and the burned gunpowder suggested a close range shot within a few inches but not contact inside the mouth or on the skin. Death occurred within a matter of seconds. The cause of death was a shotgun wound to the head, but the doctor was not sure of the manner of the death and deferred to the police to decide this point. It could have been either a suicide or a homicide.
On November 12, 1987, Ford voluntarily went to the police station with Tamara for a police interview. During the interview, Ford remarked he thought he had caught a venereal disease from his wife. He believed that she must have been having an affair with someone because he had not been with any other women. He stated that he did not touch or strike Sybil on the night she died, but they had argued about the stereo being too loud. The police also talked with Tamara separately who related to the officers that while she was playing with her younger sister on the bed, her mother took a shotgun from a shelf in the closet, stuck it in her mouth and pulled the trigger, firing the gun. Tamara also told the police that she wanted to live with Ford because he treated her well. She added that her mother had sometimes "come at" her "like a monster."
On November 12, 1987, the police asked the medical examiner to check Sybil's body for venereal disease. He found none. The police eventually decided that Sybil death was a suicide. Their decision was based primarily on Tamara's statement. On November 13, 1987, the police informed the medical examiner that the manner of death was suicide.
In December 1988, different police officers reviewed the decision made a year earlier and reopened the investigation. On December 23, 1988, they again interviewed Tamara, this time they taped the interrogation. The tape revealed she first told them that she did not know what happened, but after further questioning through the use of leading questions and repetitive prodding by the police, she changed her story and stated that on the night in question, she was in bed with her sister, Jennifer, and her cousin, Crissy, watching television when Ford walked upstairs with Sybil. At the time, the Fords were arguing about which child was better and bigger. After further prodding by the police, Tamara stated that while they argued, Ford got a big gun from the closet. Tamara first said that Ford cut Sybil with Sybil's knife, but later again changed her story and said that Ford put a big gun (the shotgun) near Sybil's face and shot her two times, once in the nose and once in the leg, before putting the gun on the bed. Tamara said Ford took Crissy, then herself and then Jennifer outside.
Later, Tamara was placed in foster care and a Dr. Kathryn Kuehnle began treating her in January 1989. The Guardian Ad Litem appointed for Tamara intervened and filed a motion for a protective order to require that all questions asked of Tamara at depositions be made by Dr. Kuehnle in her office rather than by lawyers. At a hearing on May 1, 1989, Dr. Kuehnle testified that Tamara was an emotionally disturbed child due to the many traumatic events she had experienced. Dr. Kuehnle did not believe that Tamara was competent to testify in court at that time because she had given many inconsistent statements in the past about the case.
Dr. Kuehnle stated that Tamara had a good prognosis and might later become competent to testify. Dr. Kuehnle believed that Tamara would find the standard deposition setting to be very stressful and traumatic and would not give competent testimony. Under stress, Tamara was likely to say "yes" to almost any question. The deposition might also affect her ability to give competent testimony at future court hearings. Dr. Kuehnle testified that when young children are repeatedly questioned and answers are suggested to them, as here, they sometimes develop false learned memories which they later believe to be true. Dr. Kuehnle recommended that Tamara be interviewed in her office and that she be given a list of questions to ask, preferably with the attorneys watching the interview through a one-way mirror.
Dr. Melvyn Gardner, a psychiatrist, testified that in his opinion Tamara could be subjected to the usual deposition process without psychological injury. He had no evidence that she suffered from any mental illness. Dr. Gardner did not personally examine Tamara but based his opinion on the police reports, witness depositions and Dr. Kuehnle's testimony.
On May 2, 1989, the trial court denied the guardian's motion but strictly structured the ground rules governing the deposing of Tamara. The judge permitted the taking of the deposition in Dr. Kuehnle's office but required that each questioner ask as few questions as possible, and in a gentle, patient and nonaggressive manner. On May 12, 1989, the defense conducted a brief deposition of Tamara in which she stated that Ford shot Sybil, but the deposition quickly concluded after Tamara began saying repeatedly that she did not remember what had happened.
On September 29, 1989, the prosecutor moved, pursuant to section 92.55, Florida Statutes (1987), that Tamara's testimony be videotaped for trial. On October 3, 1989, the defense moved for a determination of her competency to testify. At hearings on October 11 and 12, 1989, Dr. Kuehnle testified that she had earlier given testimony in another case that Tamara was competent to give testimony. In that case, the defense videotaped Tamara's testimony and played it in court. Dr. Kuehnle believed that Tamara was still competent but would suffer moderate emotional or mental harm if she had to testify in court rather than by videotape. She stated that even though the last videotaping session had been conducted in a safe setting, Tamara afterwards became very disturbed at home. Dr. Kuehnle said that testifying in open court with a jury, judge strangers...
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