State v. Jones

• Decision Date: 26 August 1993
• Docket Number: No. 80,069,80,069
• Citation: 625 So.2d 821
• Parties: 18 Fla. L. Weekly S456 STATE of Florida, Petitioner, v. Johnny JONES, Respondent.
• Court: Florida Supreme Court

Page 821

625 So.2d 821

18 Fla. L. Weekly S456

STATE of Florida, Petitioner, v. Johnny JONES, Respondent.

No. 80,069.

Supreme Court of Florida.

Aug. 26, 1993.

Rehearing Denied Nov. 9, 1993.

Robert A. Butterworth, Atty. Gen., and Nancy Ryan, Daytona Beach, and Gypsy Bailey, Tallahassee, Asst. Attys. Gen., for petitioner.

James B. Gibson, Public Defender; James R. Wulchak, Chief, Appellate Div., and Anne Moorman Reeves, Asst. Public Defenders, Seventh Judicial Circuit, Daytona Beach, for respondent.

BARKETT, Chief Justice.

We have for review Jones v. State, 600 So.2d 1138 (Fla. 5th DCA1992), in which the district court certified conflict with Flanagan v. State, 586 So.2d 1085 (Fla. 1st DCA1991). ¹ For the reasons expressed below, we quash Jones.

Johnny Jones was charged with two counts of sexual battery on a child less than twelve years old. After a jury trial, he was found guilty and sentenced to concurrent life sentences. The child testified at trial that Jones had intercourse with her twice in the spring of 1987 when she was eight years old. Jones was the child's mother's boyfriend at the time of the alleged offenses; he was the child's stepfather at the time of the trial. The child also testified that a different man committed a similar act with her in December 1986, and a doctor testified that he treated her for gonorrhea after that incident.

Dr. Matthew Seibel, a pediatrician in private practice who also is medical director of the Orange County Child Protection Team, examined the child on June 17, 1987. He determined that the child had gonorrhea and asked her if anyone had "messed with" her. ² She responded that Johnny Jones had done so. Dr. Seibel's testimony as to her answer was admitted into evidence over a hearsay objection based on the State's argument that the child's statement was made in connection with a physician's treatment. Sec. 90.803(4), Fla.Stat. (1985).

Another member of the child protection team, Dr. Lynda Pollack, conducted a follow-up examination of the child on July 1, 1987. Dr. Pollack found the girl's hymenal ring to be slightly enlarged and torn in three places. Dr. Pollack testified over a hearsay objection that her notes reflected that the child told her during the examination that Johnny Jones had intercourse with her. ³

The child's mother testified that Jones did not have gonorrhea during the time they lived together in 1986 and 1987. A physical examination of Jones, unrelated to this case and conducted on June 7, 1987, showed no indication of gonorrhea, although the test was not designed to identify the disease.

The defense attempted to show that the child had been sexually abused by her natural father six years before the acts charged in this case; the evidence was proffered to show that the child protection team doctors' 1987 findings could have been the result of the 1981 abuse. The evidence was excluded.

The Fifth District Court of Appeal reversed Jones' convictions and remanded for a new trial. The court found that the doctors' testimony was not admissible under the medical diagnosis or treatment exception to the rule against hearsay because the physicians were providing services for the child protection team. Although noting that treatment would follow naturally from the examination, the court found that "the true and only initial purpose of the examination was to determine whether sexual abuse had occurred and, if so, the identity of the individual responsible for it." Id. ⁴ The court certified conflict with Flanagan. ⁵

The issues presented are whether statements to medical personnel by victims of child sexual abuse are admissible under section 90.803(4), the Florida Evidence Code's medical diagnosis and treatment exception to the rule against hearsay, ⁶ and whether statements to physicians working for child protection teams should be treated differently from statements to other physicians because of any investigatory role played by the teams. See generally Secs. 415.502, .503, .5055, Fla.Stat. (1985) (relating to role of child protection teams). Because of our resolution of the first issue, it is unnecessary to address the second.

It is undoubtedly difficult to balance the rights of the accused against the obvious desirability of admitting into evidence reliable out-of-court statements of child victims of abuse. Unfortunately, not every statement by a child that he or she has been abused is reliable, and the Florida Legislature has recognized the vital interests that must be balanced in child abuse prosecutions. In 1985, the Legislature enacted section 90.803(23), a special hearsay exception that was adopted in an effort to comprehensively address the issues relating to a child's out-of-court statements of abuse. The statute provides:

(a) Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by a child victim with a physical, mental, emotional, or developmental age of 11 or less describing any act of child abuse, sexual abuse, or any other offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if:

1. The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate; and

2. The child either:

a. Testifies; or

b. Is unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense. Unavailability shall include a finding by the court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to s. 90.804(1).

(b) In a criminal action, the defendant shall be notified no later than 10 days before trial that a statement which qualifies as a hearsay exception pursuant to this subsection will be offered as evidence at trial. The notice shall include a written statement of the content of the child's statement, the time at which the statement was made, the circumstances surrounding the statement which indicate its reliability, and such other particulars as necessary to provide full disclosure of the statement.

(c) The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection.

Sec. 90.803(23), Fla.Stat. (1985).

The legislative history of this section delineates the premise upon which it is based:

As a part of a legislative package dealing with the involvement of children in judicial proceedings, the 1985 session of the Florida legislature attempted to balance the need for reliable out-of-court statements of child abuse victims against rights of the accused, and enacted an exception that will apply only if the enumerated foundation requirements have been shown to exist.

Charles W. Ehrhardt, Florida Evidence Sec. 803.23, at 686-87 (1993 ed.) (emphasis supplied); see also ch. 85-53, Whereas Clauses, at 140, Laws of Fla. ("WHEREAS, the rights of the defendant in a criminal prosecution must be balanced with the right of a child victim to be protected....").

The medical diagnosis or treatment hearsay exception, on the other hand, is premised on the assumption that a person seeking medical help has a strong motivation to be truthful because of the desire for effective treatment. Ehrhardt, Florida Evidence Sec. 803.4. In addition to statements about symptoms, statements describing the inception or cause of an illness or injury are admissible under the exception if they are reasonably pertinent to diagnosis or treatment. Torres-Arboledo v. State, 524 So.2d 403, 407 (Fla.), cert. denied, 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988). However, statements of fault are not admissible. Id. (statement by man that he was shot was admissible because it was reasonably pertinent to diagnosis or treatment, but statement that black people tried to steal his medallion was not admissible because it was not reasonably pertinent to medical treatment); see also Conley v. State, 620 So.2d 180 (Fla.1993) (alleged victim's statements as to how she had been sexually assaulted were reasonably pertinent to diagnosis or treatment, but statement that she was assaulted at gunpoint was inadmissible because it was not reasonably pertinent to medical treatment).

The Florida district courts of appeal in dealing with cases involving child victims of sexual abuse generally have followed the rule that statements to medical personnel identifying the perpetrator are not pertinent to diagnosis or treatment. See State v. Ochoa, 576 So.2d 854, 855 n. 2 (Fla. 3d DCA1991); Hanson v. State, 508 So.2d 780 (Fla. 4th DCA1987). In Flanagan, however, the First District Court of Appeal relied on a line of federal cases construing a similar medical diagnosis or treatment exception in the Federal Rules of Evidence ⁷ to find that statements of identity by child victims of sexual abuse to medical personnel can be reasonably pertinent to diagnosis or treatment, particularly when the perpetrator is a member of the victim's family. Flanagan, 586 So.2d at 1092-99.

The leading case in this area is United States v. Renville, 779 F.2d 430 (8th Cir.1985), in which the court permitted a physician to testify regarding statements of an eleven-year-old child identifying her stepfather as her assailant. The court noted that the crucial question was whether the child's statements were "reasonably pertinent" to diagnosis...