State v. Weir

• Decision Date: 14 November 1990
• Docket Number: No. 90-2680,90-2680
• Citation: 569 So.2d 897
• Parties: 15 Fla. L. Weekly D2764 STATE of Florida, Petitioner, v. Peter Vincent WEIR, Respondent.
• Court: Florida District Court of Appeals

Page 897

569 So.2d 897

15 Fla. L. Weekly D2764

STATE of Florida, Petitioner, v. Peter Vincent WEIR, Respondent.

No. 90-2680.

District Court of Appeal of Florida Fourth District.

Nov. 14, 1990.

Michael J. Satz, State Atty., and Lewis Michael, Asst. State Atty., Fort Lauderdale, for petitioner.

Alan H. Schreiber, Public Defender, and Diane M. Cuddihy, Asst. Public Defender, Fort Lauderdale, for respondent.

POLEN, Judge.

The State of Florida brings this petition for writ of certiorari seeking review of a trial court order granting a defendant's motion in limine, barring a dying declaration offered in a pending second degree murder prosecution. In an order released earlier, this court granted certiorari and quashed the trial court order which held that the dying declaration exception to hearsay in Florida is unconstitutional. This opinion provides the rationale for that order.

On the point of jurisdiction, certiorari review has been allowed in this case on extremely narrow grounds and exceptional circumstances, and is limited to the facts of this case. The order on review arose from a motion in limine filed on or about September 24, 1990, and argued on September 26, 1990, five days before trial commenced. The defendant sought a pretrial ruling on the motion in limine, which included a challenge to the admission of electronically recorded statements by the victim of a stabbing made at the emergency room of the hospital, where the victim later died. The statements were objected to as hearsay and unreliable because the victim was said to have been intoxicated when he made them. The trial judge deferred ruling on the motion until the week trial was to commence, citing the need to hear testimony from a doctor not then available. The order granting the motion was entered on the second day of trial.

It is settled that certiorari review may be taken from pretrial orders in criminal cases where a petitioner claims a departure from the essential requirements of law and the unavailability of a remedy by way of appeal. Otherwise, in the case of an order challenged by the prosecution, the state would be deprived of the right of appellate review of non-final orders which could, in some cases, effectively negate its ability to prosecute. If forced to proceed, and if the defendant were ultimately acquitted, double jeopardy would bar the state from further recourse. The harm from the earlier order thus would be irreparable. Recognizing this, the Supreme Court of Florida acknowledged the availability of certiorari review of non-final pretrial orders in criminal cases in State v. Pettis, 520 So.2d 250 (Fla.1988), and Wilson v. State, 520 So.2d 566 (Fla.1988). However, those cases did not address the issue of whether certiorari could in any circumstances extend to rulings on motions filed and argued prior to trial, but not actually ruled on until trial had commenced.

In somewhat analogous circumstances, the first district acknowledged its jurisdiction to review an order granting a motion to suppress filed prior to trial but not ruled on until after trial had commenced. In State v. Stevens, 563 So.2d 188 (Fla. 1st DCA 1990), the court took jurisdiction of the appeal of an order granting a pretrial motion to suppress under Florida Rule of Appellate Procedure 9.140(c)(1)(B), where it was not entered until after trial had commenced, and a mistrial was granted after the suppression ruling. The court said that in light of the subsequent mistrial, the order on suppression was, in effect, pretrial for purposes of review under rule 9.140(c)(1)(B).

Although we don't have the same circumstances here of our case reverting to a pretrial posture, we are faced with equally compelling circumstances warranting the exercise of certiorari review. The order on review in this case barred admission of testimony offered under the dying declaration exception to hearsay. More specifically, the trial court found section 90.804(2)(b), Florida Statutes (1989) to be unconstitutional and in violation of the First, Fifth, Sixth and Fourteenth Amendments of the United States Constitution as well as Article I, Sections 3, 9 and 16 of the Florida Constitution. The state as petitioner argues that as there were no other witnesses to the stabbing involved, this ruling eviscerates its entire case, preventing it from refuting the defendant's theory of self defense. Applying Pettis and Wilson, certiorari would lie to review the order granting the defense motion in limine, since the state convincingly argues irreparable harm by virtue of the interlocutory order. The fact that the trial court unilaterally decided to defer ruling on the motion filed prior to trial until it could hear further evidence, which was not even the basis of its ultimate findings of unconstitutionality, should not divest this court of certiorari review over this order of fundamental, far reaching and potentially irreparable impact, even though a mistrial was not entered. The effect of the order could well have led to entry of a mistrial by the court. Recognizing the lack of and need for guidance on this point of great public importance, however, we certify this question to the Supreme Court of Florida:

WHETHER A DISTRICT COURT OF APPEAL HAS CERTIORARI JURISDICTION TO REVIEW AN ORDER GRANTING A CRIMINAL DEFENDANT'S MOTION IN LIMINE FILED PRIOR TO TRIAL BUT NOT ACTUALLY RULED ON UNTIL TRIAL COMMENCED, AT THE TRIAL JUDGE'S DIRECTION, WHERE SUCH ORDER POSES POTENTIALLY IRREPARABLE HARM TO THE STATE BECAUSE APPEAL OR RETRIAL ARE NOT AVAILABLE IN THE EVENT OF AN ACQUITTAL?

Having answered the question affirmatively in our case, we proceed to the merits. As stated earlier, the trial court order on review declared the dying declaration provision in the Florida Evidence Code to be unconstitutional on several grounds. Reduced to its essence, the order contains what we divide into four findings: (1) that the dying declaration statute contains an unconstitutional presumption that the dying declarant was speaking the truth, (presumably a due process claim); (2) that the statute is based on religious beliefs that a declarant would not want to die with a lie on his lips, a de facto judicial establishment of religion based on the premise of life after death; (3) that the statute denies an accused of the right to confront his accuser; (4) that it illegally shifts the burden of proof onto the accused. Analysis of case law and the authorities cited below establishes that these findings constitute a departure from the essential requirements of law.

According to 5 Wigmore, Evidence, § 1430, (Chadbourn rev.1974), judicial use of dying declarations stems from a tradition long before the evidence system arose in the 1500s. It became recognized as an exception to the hearsay rule in the first half of the 1700s. Indeed, the ruling of Lord Mansfield in Wright v. Littler, 3 Burr. 1244 (1761) is a leading early case recognizing the propriety of dying declarations.

In Florida, the common law precept was articulated as early as 1870. In Dixon v. State, 13 Fla. 636 (1870), the court, in finding trial court error in allowing unfounded dying declaration evidence, acknowledged that dying declarations were properly admissible based upon the concept that:

they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth. A situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by an oath administered in court. Woodcock's case, I Leach, 502.

Id. at 638-639, citing Chief Baron Eyre, in Rex v. Woodcock, 1 Leach 500, 168 Eng.Rep. 352 (K.B.1789).

Now codified in the Florida Evidence Code, enacted in 1976, and more specifically section 90.804(2)(b), Florida Statutes (1989), the dying declaration exception to hearsay, provides in part:

(2) Hearsay exceptions.--The following are not excluded under s. 90.802, provided that the declarant is unavailable as a witness:

(b) Statement under belief of impending death.--In a civil or criminal trial, a statement made by a declarant while reasonably believing that his death was imminent, concerning the physical cause or instrumentalities of what he believed to be his impending death or the circumstances surrounding his impending death.

The trial court first challenged the exception as based on a presumption that the decedent in question was speaking the truth when making the dying declaration, without the need to present evidence on the desire or need to "absolve one's self of the immorality of lying before one dies." (Page 3 of trial court opinion.) The trial court concluded that this forced the accused "to respond to a legal fiction devised by the judiciary as a means of convenience when independent proof of guilt is unavailable!" (Page 4, opinion.)

Admission of dying declarations is justified on the grounds of public necessity, manifest justice and the sense that impending death makes a false statement by the decedent improbable. Section 90.804, Law Revision Council Note--1976. To the extent that the trial court in its order on review here suggests that dying declaration testimony creates an irrebuttable presumption of truth however, we cannot agree. As the Florida court said in Coatney v. State, 61 Fla. 19, 55 So. 285, 286 (1911), "[w]hether a proper predicate has been laid for the introduction of evidence of a dying declaration is to be determined primarily by the court, and, when the evidence is admitted, its weight and credibility are for the jury to determine." See also Bland v. State, 210 Ga. 100, 78 S.E.2d 51 (1953) (where there is room for doubt as to whether declaration is based on knowledge, question is for jury).

Indeed, the United States Supreme Court, Florida courts and the great majority of other jurisdictions have allowed...