State v. Kleinfeld, 91-1437
| Decision Date | 09 October 1991 |
| Docket Number | No. 91-1437,91-1437 |
| Parties | 16 Fla. L. Weekly D2631 STATE of Florida, Appellant, v. Morris KLEINFELD, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., Tallahassee, and John Tiedemann, Asst. Atty. Gen., West Palm Beach, for appellant.
John F. Tierney, III and Carey Haughwout of Tierney & Haughwout, West Palm Beach, for appellee.
The defendant was convicted of the first degree murder of his wife's divorce lawyer. On appeal, we reversed and sent this cause back for retrial. Kleinfeld v. State, 568 So.2d 937 (Fla. 4th DCA 1990), rev. denied, 581 So.2d 167 (Fla.1991). 1 Preparatory to commencement of the retrial, the trial court granted several motions in limine. From these orders, the state filed this non-final appeal. The sole motion in limine meriting discussion excluded the testimony of three important witnesses from the first trial who were dead by the time of the retrial. We reverse.
As to the state's right to a non-final appeal on this issue, we hold that the testimony of the deceased witnesses included admissions made by the defendant. Our supreme court has squarely upheld the state's right to non-final review of orders suppressing admissions. State v. Brea, 530 So.2d 924 (Fla.1988); State v. Palmore, 495 So.2d 1170 (Fla.1986). See also State v. Segura, 378 So.2d 1240 (Fla. 2d DCA 1979), which held that the motion in limine in that case was, in effect, a motion to suppress subject to review under Florida Rules of Appellate Procedure 9.140(c)(1)(B).
Having concluded that we have jurisdiction, the question is whether the trial judge committed error when he prohibited the former testimony of the deceased witnesses to be used at the retrial because the defendant was denied his right to self representation at the initial trial. Unfortunately, we have not been cited to any decisions directly on point. However, there are several United States Supreme Court cases suggesting that there are exceptions to the defendant's rights under the confrontation clause.
Where a witness is unavailable to testify at a subsequent hearing, prior testimony is admissible. To overcome the obstacles of the Sixth Amendment challenge, the prior statement must contain adequate "indicia of reliability." It is necessary that the proponent of the evidence show that the testimony was given under circumstances that "indicate that its content is probably true." The starting point for the foregoing reasoning is Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972). In that case, a defendant was being retried because he was denied effective assistance of counsel. The eyewitness to the case had moved to Sweden. The defendant argued that the eyewitness' testimony at the previous trial was inadmissible because he was denied his right to cross-examine the eyewitness. The court held that where a witness is bona fide unavailable, the requirements of the confrontation clause are met when the prior recorded testimony bears "indicia of reliability" that would afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement.
The Supreme Court, in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), explained the matter further. In that case, a witness was unavailable for the trial. However, the witness appeared at a preliminary hearing and was cross-examined. The court held that when a hearsay declarant is not present for cross-examination, the confrontation clause requires a showing of unavailability. Even then, his statement is admissible only if it contains adequate "indicia of reliability." Reliability can be inferred where the evidence falls within a hearsay exception. Additionally, the court in United States v. Owens, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988), held that the confrontation clause guarantees only an opportunity for effective cross-examination, not cross-examination in whatever way the defendant might wish.
Here, the witnesses are definitely unavailable since they are all dead. They testified at the previous trial. Although the defendant was unable to question the witnesses at the prior trial, his trial counsel did. It is clear that his trial counsel was not ineffective and the defendant's claim that he was, set forth in his motion for post conviction relief pursuant to Florida...
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State v. Sowers, 1D99-939.
...granting a pretrial motion in limine is a nonfinal order. See State v. Polak, 598 So.2d 150 (Fla. 1st DCA 1992); State v. Kleinfeld, 587 So.2d 592 (Fla. 4th DCA 1991). As a threshold matter, given the nature of the evidence adduced at the motion hearing, we find nothing in the law of Florid......
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Young v. State, 90-2186
...Kleinfeld v. State, 568 So.2d 937 (Fla. 4th DCA 1990), rev. denied, 581 So.2d 167 (Fla.1991), appeal after remand, 587 So.2d 592 (Fla. 4th DCA 1991). The trial judge's frustrations were not diminished by the fact that this defendant appeared to him to be manipulating the system. He "fired" ......
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State v. Marin
...tape recording based on the intelligibility and audibility of the tape" is reviewable under Rule 9.140(c)(1)(B) ); State v. Kleinfeld, 587 So. 2d 592, 593 (Fla. 4th DCA 1991) ("Our supreme court has squarely upheld the state's right to non-final review of orders suppressing admissions." (ci......
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Kleinfeld v. State
...Based on its observations during this second trial, a previously aborted trial over which it presided, see State v. Kleinfeld, 587 So.2d 592 (Fla. 4th DCA 1991), and a review of the proceedings from the first trial, the trial court found that, while defendant was prone to outrageous and ina......