State v. Lopez

• Decision Date: 10 January 2008
• Docket Number: No. SC05-88.,SC05-88.
• Citation: 974 So.2d 340
• Parties: STATE of Florida, Petitioner, v. Moroni LOPEZ, Respondent.
• Court: Florida Supreme Court

974 So.2d 340

STATE of Florida, Petitioner, v. Moroni LOPEZ, Respondent.

No. SC05-88.

Supreme Court of Florida.

January 10, 2008.

Bill McCollum, Attorney General, Robert R. Wheeler, Bureau Chief Criminal Appeals, and Felicia A. Wilcox, Assistant Attorneys General, Tallahassee, FL, for Petitioner.

Nancy A. Daniels, Public Defender, and Jamie Spivey, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Respondent.

Paula S. Saunders, Office of the Public Defender, Tallahassee, Florida, and Michael Robert Ufferman, Tallahassee, FL, for the Florida Association of Criminal Defense Lawyers, as Amicus Curiae.

QUINCE, J.

This case is before the Court for review of the decision of the First District Court of Appeal in Lopez v. State, 888 So.2d 693 (Fla. 1st DCA 2004). The district court certified that its decision is in direct conflict with the decision of the Fifth District Court of Appeal in Blanton v. State, 880 So.2d 798 (Fla. 5th DCA 2004), review granted, No. SC04-1823 (Fla. Sept. 8, 2005). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons set forth below, we approve the decision of the First District Court of Appeal in Lopez that a prior discovery deposition of a declarant by the defendant's counsel did not qualify as a "prior opportunity for cross-examination" under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and that the admission of this testimonial statement at trial violated the defendant's confrontation rights. We also disapprove the decision of the Fifth District in Blanton to the extent that it conflicts with this opinion.¹

STATEMENT OF THE CASE AND FACTS

Moroni Lopez was convicted of possession of a firearm by a convicted felon. The evidence presented against Lopez was a hearsay statement made to a police officer by a person who stated that he had observed Lopez in possession of a firearm.

Police officers were dispatched to an apartment complex in Tallahassee to investigate a reported kidnapping and assault. The alleged victim, Hector Ruiz, met the police officers in the parking lot and told Officer Mel Gaston that a man had abducted him in his own car at gunpoint. Ruiz appeared upset and nervous as he spoke to the officer. Ruiz surreptitiously indicated that Lopez, who was also standing in the parking lot, was the person who had pointed a gun at him and forced him out of his home. Ruiz also told Officer Frank Arias that the gun used in his abduction was still in his car. The officers' search of the car revealed a loaded .38 caliber Smith & Wesson revolver under the front passenger seat.

Officer Arias advised Lopez of his rights and questioned him about the gun. Lopez admitted that the gun was his and explained that he had hidden the gun in Ruiz's car when he saw the police officers. The State charged Lopez with armed kidnapping, assault with a weapon, and possession of a firearm by a convicted felon. Lopez pled not guilty and sought discovery from the State. Ruiz appeared for a discovery deposition and was questioned by Lopez's defense counsel. At the time of trial, however, Ruiz was unavailable as a witness and the State was unable to serve him with a subpoena.

Just before trial, the State informed the court and defense counsel that it would be proceeding only on the charge of possession of a firearm by a convicted felon. The defendant moved to exclude Ruiz's statement to Officer Gaston. At a hearing outside the presence of the jury, the prosecutor argued that the statement was admissible as an excited utterance. Defense counsel argued that the statement did not qualify under the excited utterance exception and also argued that the admission of the statement would violate Lopez's Sixth Amendment confrontation rights. The trial court ruled that the statement was admissible and allowed the officers to relate an edited version of the events. The jurors were not told about the alleged abduction, but did hear Ruiz's statement to Officer Gaston identifying Lopez as the person who had the revolver.

Lopez testified in his own defense. He denied possession of the firearm and repudiated the admission attributed to him by Office Arias. Lopez also stated his belief that he had been set up by Ruiz and his employer Mario Morqucho in retaliation for sexual battery complaints he had made against them. The jury found Lopez guilty with a special finding that he was in actual possession of the firearm. Lopez was sentenced to three years in the Department of Corrections with a three-year mandatory minimum term.

On appeal, the First District Court of Appeal concluded that the admission of Ruiz's testimonial statement without an opportunity for cross-examination violated Lopez's confrontation rights. Lopez v. State, 888 So.2d 693, 695 (Fla. 1st DCA 2004). The First District agreed with the trial court that Ruiz's statement was an excited utterance because the abduction at gunpoint was a startling event, Ruiz made the statement in question only six to eight minutes after the crime had been reported, and Ruiz appeared to be under the stress of the event when he made the statement as he appeared nervous and was speaking rapidly. Id. at 696-97. The First District also concluded that Ruiz's "excited utterance" identifying Lopez as the suspect in response to Officer Gaston's questioning at the crime scene was a testimonial statement because Ruiz knew that this was a form of accusation that would be used against the suspect. Id. at 699-700. The First District concluded that a prior discovery deposition of Ruiz by Lopez's counsel did not qualify as a "prior opportunity for cross-examination" under Crawford. Id. at 700-01. Finally, the First District certified conflict with the Fifth District's decision in Blanton, 880 So.2d at 798, on the discovery deposition issue. Lopez, 888 So.2d at 701-02.

ANALYSIS

The State contends that the victim's statement was not testimonial and thus was outside the scope of Crawford v. Washington. The State also argues that even if the victim's statement was testimonial, the Confrontation Clause was satisfied when Lopez's counsel conducted a pretrial deposition of the witness who did not testify at trial. Lopez, on the other hand, asserts that the victim's statement was testimonial in violation of Crawford. Lopez further asserts that the pretrial deposition here did not satisfy his constitutional right to confront his accuser and that there was no opportunity for cross-examination because the witness did not testify at trial.

Was the Victim's Statement Testimonial under Crawford?

The trial court admitted Ruiz's statement under the excited utterance hearsay exception in section 90.803(2), Florida Statutes (2006). Section 90.803(2) authorizes the admission of "[a] statement or excited utterance relating to a startling event or, condition made while the declarant was under the stress of excitement caused by the event or condition," notwithstanding the general prohibition against the admission of hearsay. The rationale for this exception is that a statement made during a period of excitement is likely to be more reliable than a statement made after a period of reflection. See Evans v. State, 838 So.2d 1090 (Fla.2002). A person who is startled and excited does not have the capacity to analyze the facts or to make a conscious misrepresentation of the event. A statement made during a period of excitement is therefore less likely to be contrived.

With these guiding principles, the trial judge could properly conclude that the statement at issue was an excited utterance because Ruiz's abduction at gunpoint was obviously a startling event and he appeared to still be under the stress of that event when he made his statement to the officer, who described Ruiz as being nervous, shaken, and speaking rapidly. However, the mere fact that evidence meets the requirements of an exception to the hearsay rule does not necessarily mean it is admissible as evidence. The statement might be inadmissible for other reasons, including that the use of the statement would violate the defendant's constitutional right of confrontation. The Sixth Amendment provides that Tin all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. The right guaranteed by this part of the Sixth Amendment differs from the kind of protection that is afforded by state evidentiary rules governing the admission of hearsay.

The standard for determining whether the admission of a hearsay statement against a criminal defendant violates the right of confrontation was modified by the Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Before Crawford, the issue was controlled by Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which held that a hearsay statement could be admitted in a criminal trial without violating the right of confrontation if it was shown that the declarant was unavailable and the out-of-court statement bore adequate indicia of reliability. This test focused on the reliability of the statement. As explained in Roberts, a statement had adequate indicia of reliability if it either fell within a firmly rooted hearsay exception or if it bore "particularized guarantees of trustworthiness." Id.

In Crawford, the Supreme Court dispensed with the Roberts reliability analysis for testimonial hearsay statements and held the admission of a hearsay statement made by a declarant who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial, (2) the declarant is unavailable, and (3) the defendant lacked a prior opportunity for cross-examination of the declarant. The Court emphasized that if "testimonial" evidence is at issue, "the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Crawford, 541 U.S. at 68, 124 S.Ct....