Delacruz v. State

734 So. 2d 1116, 1999 WL 285023
CourtDistrict Court of Appeal of Florida
DecidedMay 10, 1999
Docket97-4507
StatusPublished
Cited by13 cases

This text of 734 So. 2d 1116 (Delacruz v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Delacruz v. State, 734 So. 2d 1116, 1999 WL 285023 (Fla. Ct. App. 1999).

Opinion

734 So.2d 1116 (1999)

Nelson DELACRUZ, Jr., Appellant,
v.
STATE of Florida, Appellee.

No. 97-4507.

District Court of Appeal of Florida, First District.

May 10, 1999.
Rehearing Denied June 4, 1999.

*1117 Nancy A. Daniels, Public Defender; Jamie Spivey, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; James W. Rogers and Carolyn J. Mosley, Assistant Attorneys General, Tallahassee, for Appellee.

*1118 WEBSTER, J.

In this direct criminal appeal, appellant challenges his conviction, following a jury trial, for a lewd, lascivious or indecent act upon a child. He argues that the trial court erroneously (1) found that the alleged child victim was competent to testify; and (2) held that, if the child was not competent to testify, there was sufficient corroborating evidence to allow into evidence the child's out-of-court statements. We reverse.

I.

Child Victim's Competence to Testify

Following the start of the trial, the court held a hearing out of the jury's presence to determine whether the alleged child victim was competent to testify. After listening to the child, the trial court held, over objection, that she was competent. Appellant's counsel argued that the child's testimony had been insufficient to establish that the child knew the difference between the truth and a lie, or that she understood the importance of telling the truth. Counsel again makes that argument on appeal.

The child was four years old at trial. Notwithstanding repeated leading questions by the prosecutor, the child's testimony was equivocal, at best. At one point, the following occurred:

THE COURT:.... Do you know what it means to tell the truth?
THE WITNESS: (Nods head affirmatively.)
THE COURT: Do you?
THE WITNESS: (Shakes head negatively.)
THE COURT: You don't know what it means to tell the truth? Do you know what it means to tell a lie?
THE WITNESS: (Shakes head negatively.)
THE COURT: You don't?
THE WITNESS: (Shakes head negatively.)
THE COURT: If I ask you something, if I ask you a question, will you tell me really what happened?
THE WITNESS: (Nods head affirmatively.)
THE COURT: Will you?
THE WITNESS: (Nods head affirmatively.)
THE COURT: You won't make up anything, will you?
THE WITNESS: Huh?
THE COURT: You'll tell me exactly what happened?
THE WITNESS: (Nods head affirmatively.)
THE COURT: Is that the truth?
THE WITNESS: (Nods head affirmatively.)
THE COURT: Is that telling the truth?
THE WITNESS: (Nods head affirmatively.)
THE COURT: So you know what it means to make up something and to tell the truth. Do you know the difference between those two things?
THE WITNESS: (Shakes head negatively.)
THE COURT: You don't?
THE WITNESS: (Shakes head negatively.)

At another point, the following occurred:

THE COURT: You wouldn't make up anything, would you?
THE WITNESS: (Shakes head negatively.)
THE COURT: Suppose you made something up and didn't tell ... really what happened—
THE WITNESS: (Nods head affirmatively.)
THE COURT:—what might happen to you?
THE WITNESS: (Shrugs shoulders.)
THE COURT: You don't know?
THE WITNESS: (Shakes head negatively.)
*1119 THE COURT: Would you get in trouble?
THE WITNESS: Maybe.

At yet another point, in response to questions from the prosecutor, the following occurred:

[PROSECUTOR]: ... I'm going to ask you questions about what happened....
THE WITNESS: (Nods head affirmatively.)
[PROSECUTOR]: Are you going to tell me what happened?
THE WITNESS: (Nods head affirmatively.)
[PROSECUTOR]: Okay. Do you know what it means to make up something that isn't true?
THE WITNESS: (Shakes head negatively.)

Having carefully reviewed the child's testimony during the hearing, we conclude that it might best be described as uncommunicative. Of some 78 questions posed to her, she responded verbally to only 17. Her responses to the remaining questions consisted of either head-shaking or shrugs. We are able to find nothing in the child's testimony that establishes that she understood what it meant to tell the truth; the difference between telling the truth and telling a lie; or what would happen if she did not tell the truth. We are similarly unable to find in the child's testimony anything from which one might conclude that she was capable of observing and recollecting facts, or of narrating those facts to a jury. In short, the child's testimony was insufficient to establish that she was competent to testify, and the trial court abused its discretion when it found to the contrary. See, e.g., Seccia v. State, 689 So.2d 354 (Fla. 1st DCA 1997); Wade v. State, 586 So.2d 1200 (Fla. 1st DCA 1991); Griffin v. State, 526 So.2d 752 (Fla. 1st DCA 1988). The state asserts that, to the extent it was error to find that the child was competent to testify, that error was harmless because the child's trial testimony was cumulative of her out-of-court statements which were also admitted at trial. We do not address this harmless error argument because, for the reasons that follow, we conclude that the trial court committed reversible error when it held that one of those out-of-court statements qualified as other corroborative evidence of the offense sufficient to support the admissibility of the out-of-court statements.

II.

Section 90.803(23)(a)2b Corroborative Evidence Requirement

Section 90.803(23) of the Florida Evidence Code addresses the circumstances in which otherwise inadmissible out-of-court statements made by an alleged child victim may be admitted in evidence at trial. To the extent pertinent, that rule permits such statements to be used as substantive evidence at trial provided that the trial court finds that the statements are reliable and either the child testifies at trial or the court finds, further, that "there is other corroborative evidence of the abuse or offense."

At trial, the state presented five witnesses who testified regarding statements made to them by the child regarding the offense. When the trial court inquired about the existence of corroborative evidence, the prosecutor correctly responded that corroboration was not required pursuant to section 90.803(23) because the child had testified.

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Cite This Page — Counsel Stack

Bluebook (online)
734 So. 2d 1116, 1999 WL 285023, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delacruz-v-state-fladistctapp-1999.