Townsend v. State, 91-1396

Decision Date29 January 1993
Docket NumberNo. 91-1396,91-1396
Citation613 So.2d 534
Parties18 Fla. L. Weekly D390 Jack Timothy TOWNSEND, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

HARRIS, Judge.

Jack Timothy Townsend appeals from his conviction of sexual battery. Because we find that the record does not support the introduction into evidence of the hearsay statements of the alleged child victim, we reverse and remand for a new trial.

Townsend 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. The jury found the former based solely on the hearsay testimony of the two-year old child alleged to be the victim. 1

It is not our function in this appeal to determine Townsend's guilt or innocence. We should, however, determine if the jury was properly permitted to consider the child's hearsay testimony. More particularly, we should consider whether the admission of this evidence violated long-standing evidence rules designed to protect not only Townsend and not only criminal defendants, but anyone whose liberty, property or other rights might be affected by the introduction of unreliable evidence. 2

Our consideration is complicated by the effect of a previous decision by this court and a previous holding, albeit dictum, of the supreme court.

The facts of this case show that after Townsend and his wife separated, she and the child moved in with her mother. It was after this, while alone with the mother, that the child is first reported to have said "Papa stuck his finger in my chita [vagina]." Even though the wife had suspected sexual abuse before this (a medical examination proved negative), and even though she had earlier complained to H.R.S. about her general fears of sexual abuse (again, with negative results), she testified that she decided not to report this incident involving a specific allegation to H.R.S. She testified that she didn't call H.R.S. even after this occasion when the child continued to report this charge and even when the child, on one occasion, spread her legs and stuck her fingers in her vagina and repeated that "Papa put his fingers in my chita."

She permitted the alternate weekend visits with Townsend to continue.

Someone other than the mother became aware of the child's allegations and filed a report which prompted a visit from an H.R.S. agent. The mother, the grandmother and other relatives and friends were present during the interview. The child, after a while, "threw herself on the sofa, spread her legs open and took her hand and put her hand in her vagina and took her finger and said this is what Papa does to my chita."

Charges against Townsend were filed.

During an earlier proceeding, the trial court ruled that even though the court approved the stipulation between the State and the defense that the child was an incompetent witness because "she was not able to understand the duty or obligation to tell the truth because of her chronological age," the child was nevertheless not an unavailable witness under section 90.803(23)(a)(2) because such incompetency met none of the definitions of unavailability contained in said statute.

On appeal, this court determined that the stipulation to the effect that the child was an incompetent witness because she was unable to understand the duty or obligation to tell the truth because of her youth met the section 90.803(23) exception to unavailability: "because of then existing physical illness or infirmity." State v. Townsend, 556 So.2d 817, 818 (Fla. 5th DCA 1990) [Townsend I ].

We now recede from this position. It is apparent that all the section 90.804 definitions of unavailability [included by reference into section 90.803(23) ] assume the competency of the witness. It assumes that the witness could testify except for (1) some privilege, (2) the witness' persistent refusal to testify, (3) a lack of memory which would destroy his effectiveness as a witness, (4) the inability to require the witness to attend, and (5) the death or the witness' then existing [at the time of trial] physical or mental illness or infirmity. We now believe that the statute's reference to "then existing ... mental ... infirmity" must refer to a condition arising after the purported hearsay statements.

We also held in Townsend I that the trial court erred in concluding that the child did not meet the additional exception to unavailability contained in section 90.803(23): "the child's participation in the trial proceedings would result in a substantial likelihood of severe emotional or mental harm."

We did not find this error in the court's evaluation of the credibility of the testimony but rather in the court's reliance on its summary of the psychologist's testimony which was contrary to the psychologist's testimony in the record. Because of this contradiction--either the court misheard the testimony or the record is inaccurate--we held that this finding of availability should not stand unless the trial judge reconsidered the issue based on a review of the psychologist's testimony. We still recognize this as a problem. However, because we felt bound by the dictum 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), we believed the child's unavailability was immaterial and discouraged the trial court from reconsidering the issue of harm to the child if she testified. The issue was therefore not revisited before trial.

The Townsend I court's reliance on Perez is evident from our holding:

The fact that the minor witness is incompetent to testify at trial does not mean, however, that her out-of-court statements are precluded. Perez v. State, 536 So.2d 206 (Fla.1988), cert. denied, 109 S.Ct. 3253, 106 L.Ed.2d 599 (1989). The admissibility of those statements must be determined by the trial court outside the presence of the jury based on the time, content, and circumstances of each statement, and a factual finding made as to the safeguards of the statement's reliability. [Footnote omitted].

Townsend at 818.

This statement of the law, which we now suggest is erroneous, 3 is based upon the following language contained in Perez:

We reject the argument that the child must be found to be competent to testify before the child's out-of-court statements may be found to bear sufficient safeguards of reliability. Section 90.603(2), Florida Statutes (1985), provides that "[a] person is disqualified to testify as a witness when the court determines that he is ... [i]ncapable of understanding the duty of a witness to tell the truth." A young child generally does not understand abstract concepts such as duty, truth or lie. The fact that a child is incompetent to testify at trial according to section 90.603(2) does not necessarily mean that the child is unable to state the truth. The requirement that the trial court find that the time, content, and circumstances of the statement provide sufficient safeguards of reliability furnishes a sufficient guarantee of trustworthiness of the hearsay statement, obviating the necessity that the child understand the duty of a witness to tell the truth. 4 [Emphasis and footnote supplied].

Perez, 536 So.2d at 210-211.

The court in Perez was not concerned with whether the statements were admissible under section 90.803(23). Clearly they are because the trial court in Perez made a finding that the child's out-of-court statements were reliable, but that the child was "unavailable as a witness due to a substantial likelihood of severe emotional or mental harm if required to participate in the trial or proceedings." Perez at 207-8. This finding satisfies the requirements of such section (and appears to have made this holding in Perez dictum ).

We now recede from the last quoted statement from Townsend I, because in that case we failed to consider the requirements of section 90.803(23) and held that incompetency is, in legal effect, the same as unavailability. We now think that was error. 5 We are also concerned about the quoted statement in Perez that suggests that hearsay evidence may somehow be better evidence than the direct evidence given by the declarant of the hearsay statement. The Perez statement implies that the direct evidence of the witness which the legislature has mandated the jury not be permitted to hear because of its inherent untrustworthiness, is somehow improved and made more believable (and therefore judicially determined to be admissible) by filtering it through hearsay testimony (often of biased and hostile witnesses). This inconsistency of logic can be resolved by recognizing as an "exception" to the section 90.603(2) exclusion any judicially determined credible testimony which does not depend on the witness's ability to understand the obligation to tell the truth.

Perez presents another problem. The Perez analysis of the effect of the child's incompetence under section 90.603(2) as it applies to the introduction of the child's testimony under section 90.803(23), because it was not an issue in Perez, did not discuss the fact that the legislature mandated that a condition precedent to the introduction of the testimony is that the child testify or be unavailable. The court therefore did not indicate where section 90.603(2) incompetency fits into the 90.804(1) definitions of unavailability. Section 90.803(23) requires the court to first find unavailability before it even considers the statement's reliability under the "time, content and circumstances" test. The Perez opinion could be read to suggest that...

To continue reading

Request your trial
3 cases
  • State v. Townsend
    • United States
    • United States State Supreme Court of Florida
    • April 21, 1994
    ...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 ......
  • Cherryhomes v. State, 92-02588
    • United States
    • Court of Appeal of Florida (US)
    • April 15, 1994
    ...finding that the victim was unavailable to testify because she was incompetent to testify was erroneous. Townsend v. State, 613 So.2d 534 (Fla. 5th DCA 1993) (Townsend II ), review granted, State v. Townsend, 624 So.2d 268 In Townsend II, the Fifth District receded from its opinion in State......
  • State v. Townsend
    • United States
    • United States State Supreme Court of Florida
    • July 28, 1993

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT