State v. Townsend

Citation635 So.2d 949
Decision Date21 April 1994
Docket NumberNo. 81263,81263
Parties19 Fla. L. Weekly S202 STATE of Florida, Petitioner, v. Jack Timothy TOWNSEND, Respondent.
CourtUnited States State Supreme Court of Florida

Robert A. Butterworth, Atty. Gen., and Barbara C. Davis and Kellie A. Nielan, Asst. Attys. Gen., Daytona Beach, for petitioner.

James G. Kontos of the Law Firm of Daniel S. Ciener, Merritt Island, for respondent.

OVERTON, Justice.

We have for review Townsend v. State, 613 So.2d 534 (Fla. 5th DCA 1993) (Townsend II ), which concerns the admissibility of a two-year-old's hearsay statements in this child-sexual-abuse case. This issue involves a relatively new area of the law in which the legislature and the courts are attempting to provide a means for admitting a child's hearsay testimony at trial, particularly in child abuse cases. Before the enactment of the child hearsay exception at issue in this case, section 90.803(23), Florida Statutes (1987), the hearsay testimony of a child was generally excluded in criminal trials. Today, this type of testimony is allowed only after a determination has been made that the testimony is clearly reliable. Such a determination is necessary to avoid violating a defendant's constitutional rights of confrontation and due process.

In the instant case, the Fifth District Court of Appeal succinctly articulated the difficulty of admitting this type of testimony by noting that the respondent "is either guilty of one of the most heinous offenses enjoined by civilized society--the sexual abuse of his own child--or is the hapless victim of the most vicious child manipulation coming in the midst of a bitter and recriminating domestic battle." Id. at 534-35. In its decision, the district court found the child's testimony to be inadmissible, granted a new trial, and certified the following question as one of great public importance:


Id. at 538. We have jurisdiction pursuant to article V, section 3(b)(4), of the Florida Constitution. For the reasons expressed, we answer the question in the affirmative. Accordingly, we disagree with the district court's holding in Townsend II that the child was not "unavailable" for purposes of section 90.803(23)(a)(2), Florida Statutes (1987), the child hearsay exception. Given the other errors in this case, however, we approve the district court's decision to remand this cause for a new trial.

This case concerns Jack Timothy Townsend's conviction of sexual battery on his two-year-old daughter in 1988. At the time of the incident in question, Townsend and the child's mother had separated and divorce proceedings were in progress, and the child was living with her mother and her maternal grandparents but was spending alternate weekends with Townsend. On several occasions, the child allegedly told her mother that "Papa stuck his finger in my [vagina]." Thereafter, the mother reported the child's allegations to the Department of Health and Rehabilitative Services. The Department of Health and Rehabilitative Services then conducted an interview with the child and a medical doctor examined the child. Subsequently, charges were filed against Townsend.

Before trial, the State and the defense stipulated that the child was incompetent to testify under section 90.603, Florida Statutes (1987), due to her age. 1 After the State subsequently filed a notice of intent to introduce the child's statements as hearsay evidence, the trial judge determined that the child was not "unavailable" under section 90.803(23)(a)(2) because the child's incompetency met none of the definitions of unavailability contained in section 90.804, Florida Statutes (1987) (incorporated by reference into section 90.803(23)). The State appealed this ruling to the Fifth District Court of Appeal. The district court, relying in part on this Court's decision in Perez v. State, 536 So.2d 206 (Fla.1988), cert. denied, 492 U.S. 923, 109 S.Ct. 3253, 106 L.Ed.2d 599 (1989), ruled that the child was in fact "unavailable" under the "existing physical or mental illness or infirmity" exception contained in section 90.804(1) because of the child's age and lack of understanding as to the duty or obligation to tell the truth. State v. Townsend, 556 So.2d 817 (Fla. 5th DCA 1990) (Townsend I ).

After remand, the trial judge conducted a hearing pursuant to section 90.803(23) to determine whether the child's hearsay statements were sufficiently reliable to allow the admission of those statements at trial. In determining which statements were admissible, the trial judge listed each statement to be considered and summarily concluded, without explanation or factual analysis, that the circumstances surrounding most of the statements showed them to be trustworthy. The case then proceeded to trial.

At trial, the State presented a number of witnesses who testified as to hearsay statements made by the child during the year following the alleged abuse. Additionally, the medical doctor who examined the child after the alleged abuse testified that the child's hymen was damaged in a manner consistent with penetration and that, in his opinion, the penetration was probably the result of sexual abuse. On cross examination, however, the doctor admitted that the child could have caused the damage herself.

A psychologist, who began treating the child nine months after the alleged abuse, testified as to a number of statements made by the child regarding the alleged abuse. Additionally, this psychologist testified that, in her opinion, the child had been "sexually over-stimulated" by an adult and that the child's statements to her were truthful. The psychologist also testified, based on her observations and based on statements she elicited from the child through the use of anatomical dolls, to facts indicating that Townsend was the person who had sexually abused the child. Significantly, other testimony was presented reflecting that a great deal of animosity existed between Townsend and the child's mother and maternal grandmother.

Townsend was convicted as charged. Townsend appealed the conviction to the Fifth District Court of Appeal. The district court issued a divided en banc decision in which the majority receded from Townsend I, holding that its reliance on Perez in Townsend I was misplaced and that incompetency under section 90.603 does not render a witness unavailable for purposes of section 90.803(23). The district court also noted that the admission of the child's statements at trial may have violated Townsend's rights under the confrontation clause of the Sixth Amendment of the United States Constitution. Based on its ruling as to the unavailability issue, the district court determined that the child's statements had been erroneously admitted as hearsay evidence at trial, and the district court remanded the case for a new trial. The district court directed the trial court to revisit the issue of whether the child could be "unavailable" because of severe mental or emotional harm rather than incompetency and, if the child was found to be unavailable for that reason, to make specific factual findings as to whether the child's statements were reliable. In rendering its decision, the district court certified the aforementioned question to this Court, seeking to determine whether the two-year-old child in this case was "unavailable," as that term is defined in section 90.804, for purposes of admitting the child's hearsay statements under section 90.803(23).

Child Hearsay--Allowable Under a Special Hearsay Exception

Section 90.803(23), the child-sexual-abuse-hearsay exception, was enacted to enable trustworthy and reliable statements not covered under any other hearsay exception to be admitted in court. Fla.S.Comm. on Judiciary-Civ., tape recording of proceedings (May 1, 1985) (Florida State Archives) (comments of Florida State University Law Professor Charles Ehrhardt). That section 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 or neglect, 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...

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