State v. Ochoa, 89-399
| Decision Date | 19 March 1991 |
| Docket Number | No. 89-399,89-399 |
| Citation | 16 Fla. L. Weekly 757,576 So.2d 854 |
| Parties | 16 Fla. L. Weekly 757 The STATE of Florida, Appellant, v. Ivan OCHOA, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., and Yvette Rhodes Prescott and Anita J. Gay, Asst. Attys. Gen., for appellant.
Bennett H. Brummer, Public Defender, and Henry H. Harnage and Bruce A. Rosenthal, Asst. Public Defenders, for appellee.
Before BARKDULL, COPE and GERSTEN, JJ.
The State appeals dismissal of charges against defendant Ivan Ochoa on two counts of sexual battery and one count of lewd assault. The trial court ruled that the minor victims' statements to a physician were inadmissible hearsay and that therefore the State failed to show corpus delicti. We reverse.
Defendant was charged with one count of sexual battery and one count of lewd assault on a ten-year-old girl, and one count of sexual battery on her seven-year-old sister. Both children were examined by a physician at the Rape Treatment Center at Jackson Memorial Hospital. Defendant gave a confession to the police. The defense subpoenaed the ten-year-old for deposition but she failed to appear. Thereafter, the mother left Dade County with both children, who had not been located at the time of the hearing below.
Defendant moved in limine to exclude, as inadmissible hearsay, the victims' statements to the physician at the rape treatment center. After conducting an evidentiary hearing on the motion, the trial court concluded that the statements to the physician were inadmissible and that in the absence of the statements, the State had failed to show corpus delicti. The court also ruled, alternatively, that the statements, even if admissible, would not be sufficient to establish corpus delicti. Since, in the absence of corpus delicti, defendant's confession would not be admissible, the trial court granted defendant's ore tenus motion to dismiss all charges.
On this appeal, the State urges that the statements are admissible and that corpus delicti has been established. The defense contends that the trial court's rulings are correct and alternatively, that the statements must be excluded by reason of the Confrontation Clause.
The State contends that the victims' statements to the physician, although hearsay, were admissible as statements for purposes of medical diagnosis or treatment under subsection 90.803(4), Florida Statutes (1989). 1 Omitting that portion of the statements pertaining to the identity of the perpetrator, the victims' statements were in essence that they had been touched in the genitalia by an adult male and had experienced some pain when that happened. 2 The physical examination revealed conditions consistent with digital penetration and inconsistent with an accidental occurrence.
At the hearing below, the trial court ruled that the State had not laid the necessary predicate to establish that the statements were made to the physician for purposes of medical diagnosis or treatment. Relying on Begley v. State, 483 So.2d 70 (Fla. 4th DCA 1986), the court excluded the statements.
The hearsay exception set forth in subsection 90.803(4) applies to "[s]tatements made for purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment ... which statements describe medical history, past or present symptoms, pain, or sensations, or the inceptions or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment." 3 Begley holds that for a statement to be admissible under this exception, "there must be a showing (a) that the statements were made for the purposes of diagnosis or treatment, and (b) that the individual making the statements knew the statements were being made for this purpose." 483 So.2d at 73; accord Lazarowicz v. State, 561 So.2d 392, 394 (Fla. 3d DCA 1990).
In Begley, the child declarant met with a counselor at a sexual assault treatment center. While there was a discussion between the child and the counselor, there was no showing that the statements were made for purposes of medical diagnosis or treatment. 483 So.2d at 73. Accordingly, the statements were excluded.
In the present case, by contrast, the victims were taken to the Rape Treatment Center, a medical facility at Jackson Memorial Hospital. The purpose for the visit was a physical examination. The doctor introduced himself as such, took a history, and conducted a physical examination. Both parts of the Begley test were satisfied.
The defense argues that the necessary predicate--specifically, the second part of the Begley test--cannot be established without the child declarant. That position is without merit. Neither the Code nor Begley require that the showing be made solely through the testimony of the declarant. Where, as here, the declarant is unavailable, the necessary predicate can be established through other evidence. In the present case, that was done by the testimony of the examining physician. The Begley test was satisfied and the evidence was admissible.
The defense contends that the victims' statements to the examining physician cannot come in, even if within the exception for medical diagnosis and treatment, unless there is an additional showing that the statements made by the victims were reliable. The Evidence Code itself does not require such an additional showing. Instead, the courts have considered that the rationale underpinning the medical diagnosis and treatment exception applies to adults and minors alike, 4 and treat a child declarant's statements as admissible under this hearsay exception. 5 Questions about the age of the child and circumstances under which the statement was made ordinarily go to the weight, rather than admissibility, of the testimony. If there is a particularized showing that the specific hearsay statement lacks the necessary reliability, then the court has the power to exclude it, 6 but no such particularized challenge has been made with respect to the statements in the present case. 7
The defense contends, however, that the Confrontation Clause requires an additional showing of reliability before a child's statements may be introduced under subsection 90.803(4), and that such a showing must be made in every case as a matter of routine. For that proposition the defense relies on Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990).
In Idaho v. Wright, a child victim of sexual abuse was examined by a pediatrician. During the examination, the child made statements identifying the perpetrator as her father. Because under ordinary circumstances, statements identifying a perpetrator are not admissible as statements made for purposes of medical diagnosis or treatment, 8 the prosecution could only introduce the child's statements identifying her father as the perpetrator by relying on Idaho's residual hearsay rule, the Idaho counterpart of Federal Rule of Evidence 803(24). 9 At trial, the child's statements were admitted into evidence under that rule. On review, the United States Supreme Court considered whether the admission of the evidence under Rule 803(24)--which is not a firmly-rooted hearsay exception--violated the Confrontation Clause. Idaho v. Wright dealt only with the residual hearsay exception and did not deal with the exception for medical diagnosis and treatment.
Against that background, the Idaho v. Wright court reviewed the Confrontation Clause principles applicable to exceptions to the hearsay rule. "The Confrontation Clause ... bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule." 497 U.S. at ----, 110 S.Ct. at 3146, 111 L.Ed.2d at 651 (footnotes omitted). The Confrontation Clause does not, however, require exclusion of all such testimony. Id. Instead,
the Confrontation Clause "operates in two separate ways to restrict the range of admissible hearsay." ... ... Second, once a witness is shown to be unavailable,
Id. (emphasis added; citations omitted).
In the present case, the first part of the test is satisfied because the trial court made a finding that the victims were unavailable. 10 As to the second part of the test, the evidence sought to be introduced falls within a firmly rooted hearsay exception. That being so, " '[r]eliability can be inferred without more....' " Id. 11 No further Confrontation Clause inquiry is required under Idaho v. Wright. 12 The victims' statements for purposes of diagnosis and treatment are admissible.
The State next contends that the trial court erred by ruling that the State had not, and could not, establish corpus delicti. The trial court reasoned that, even if the victims' statements to the physician were admitted into evidence, the statements identifying the defendant as perpetrator would be inadmissible. See supra note 2. The State concedes that the record made below does not establish that the statements identifying the defendant as perpetrator were statements made for purposes of medical diagnosis or treatment, and concedes for purposes of this appeal that that portion of the victims' statements would have to be excluded.
Proof of corpus delicti is required in this case as a prerequisite for the admission into evidence of the confession made by the accused. See Stone v. State, ...
To continue reading
Request your trial
-
Flanagan v. State
...error in the reception of this evidence. 13 This distinction does not appear to have been made by the Third District in State v. Ochoa, 576 So.2d 854 (Fla. 3d DCA 1991), when it reversed an order dismissing charges against the defendant of sexual battery and lewd assault on the ground that ......
-
Hernandez v. State
...Lages v. State, 640 So.2d 151, 153 (Fla. 2d DCA 1994); Williams v. State, 865 So.2d 17, 18-19 (Fla. 4th DCA 2003); State v. Ochoa, 576 So.2d 854, 856-58 (Fla. 3d DCA 1991). The trial court ruled that Ms. Shulman's testimony concerning the statements was admissible and granted the defense a ......
-
Reyes v. State, 90-132
...if, and to the extent that it was knowingly made for the purpose of and was pertinent to diagnosis or treatment. Consult State v. Ochoa, 576 So.2d 854 (Fla. 3d DCA 1991); Lazarowicz v. State, 561 So.2d 392 (Fla. 3d DCA 1990); Begley v. State, 483 So.2d 70 (Fla. 4th DCA 1986); see also A.M. ......
-
State v. Jones
...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 ......