Fricke v. State

561 So. 2d 597, 1990 WL 37419
CourtDistrict Court of Appeal of Florida
DecidedApril 3, 1990
Docket88-993
StatusPublished
Cited by11 cases

This text of 561 So. 2d 597 (Fricke 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
Fricke v. State, 561 So. 2d 597, 1990 WL 37419 (Fla. Ct. App. 1990).

Opinion

561 So.2d 597 (1990)

William S. FRICKE, Appellant,
v.
The STATE of Florida, Appellee.

No. 88-993.

District Court of Appeal of Florida, Third District.

April 3, 1990.
Rehearing Denied June 18, 1990.

*598 Benjamin & Aaronson, Daniel Aaronson, and Richard L. Rosenbaum, Fort Lauderdale, for appellant.

Robert A. Butterworth, Atty. Gen., and Yvette Rhodes Prescott, Asst. Atty. Gen., for appellee.

Before HUBBART, LEVY and GERSTEN, JJ.

HUBBART, Judge.

This is an appeal by the defendant William S. Fricke from a judgment of conviction and sentence for sexual battery upon a person eleven years of age or younger, and for lewd and lascivious assault. The dispositive issues presented for review are (1) whether the child-victim in this case was properly allowed to testify at trial via closed-circuit television without having to confront the defendant in court, and (2) whether certain out-of-court hearsay statements of the child-victim were properly allowed in evidence at trial. Because no case-specific findings of necessity or reliability, respectively, were made by the trial court as required by Florida statute to support the above evidentiary rulings, we conclude that the defendant's Sixth Amendment right to confrontation was violated, and, accordingly, reverse and remand for a new trial.

I

The defendant William S. Fricke was charged by information with four counts of sexual battery on a person eleven years of age or younger [§ 794.011(2), Fla. Stat. (1985)] and four counts of lewd and lascivious assault [§ 800.04, Fla. Stat. (1985)], upon one C.S., a six-year-old child. After a plea of not guilty was entered, the state filed (1) a pretrial motion to present C.S.'s testimony at trial via closed-circuit television, and (2) a pretrial notice of intent to offer in evidence at trial certain out-of-court hearsay statements of C.S. The court conducted separate pretrial hearings on the above motion and notice.

At the hearing on the state's closed-circuit television motion, no live testimony was adduced. Instead, the state relied entirely on the testimony of Dr. Jerome Poliacoff, a child psychologist, given at a prior hearing on the defendant's motion to conduct a discovery deposition of C.S. At this prior hearing, Dr. Poliacoff testified that he had interviewed C.S. on two occasions, that he had been deposed himself by defense counsel in the case and found the atmosphere at the deposition combative, that in his opinion the deposition was structured to diminish the self-esteem or to intimidate the witness, and that in his opinion C.S. would be "traumatized" by appearing at such a deposition. After hearing argument of counsel, the trial court granted the state's closed-circuit television motion based on a finding that such a procedure would protect C.S. "from the impact of having to testify in a courtroom full of strange people" and thus would "minimize the impact of this trial" on a child "with her emotional stability." (T.267, 269-70). No other findings, however, were made by the trial court.

At the hearing on the state's hearsay statement notice, five out-of-court statements by C.S. were proffered by the state. These statements accused the defendant of sexually molesting C.S., and were testified to by Clifford S. (C.S.'s father), Beverly S. (C.S.'s stepmother), Detective Julio Padron (Sexual Battery Unit, Metro-Dade Police Department), and Dr. Jerome Poliacoff (child psychologist). After receiving this evidence and hearing argument of counsel, the trial court ruled that it would "allow this information ... to be admitted in the [sic] evidence during the trial pursuant to [§] 90.803 sub. 23 [Fla. Stat. (1987)]." (T.376). No findings, however, were made by the trial court to support this result. Moreover, the trial court during trial specifically declined to give any case-specific reasons for its ruling, stating:

"I granted the motion on intent to rely and that's the entire motion and I don't *599 need to sit here and lay out reasons for doing it. I granted it."

T.671.

At trial, C.S. was allowed to testify via closed-circuit television from the trial judge's chambers outside the presence of the defendant; only the prosecutor and defense counsel were allowed to confront and question C.S. in the judge's chambers while the defendant, the judge, and jury watched the testimony from a television monitor in the courtroom. The defendant was able to communicate with his counsel, but not vice versa, during C.S.'s testimony. In addition, the state introduced in evidence, over objection, the aforesaid hearsay statements of C.S. Both C.S.'s trial testimony and her hearsay statements were highly incriminating and tended to establish the unlawful sexual acts charged in the information; the defendant, however, denied these charges in his trial testimony.

At the close of all the evidence, the trial court entered a judgment of acquittal on three of the sexual battery counts and on three of the lewd and lascivious counts on the ground that such counts were repetitious. The trial court sent the case to the jury on one count of sexual battery [count 1] and one count of lewd and lascivious assault [count 5]; the jury found the defendant guilty on these two counts. Based on this verdict, the trial court sentenced the defendant to life imprisonment, with a minimum mandatory term of twenty-five years, on the sexual battery count, and five years imprisonment on the lewd and lascivious count — the two sentences to run concurrently. This appeal follows.

II

The defendant's central point on appeal is that the trial court's rulings in (a) authorizing C.S. to testify at trial via closed-circuit television without any case-specific finding of necessity, and (b) admitting in evidence C.S.'s accusatory hearsay statements without any case-specific finding of reliability, violated the defendant's right of confrontation guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. We entirely agree.

A

Turning first to the closed-circuit television ruling, the United States Supreme Court has held that it is a violation of a defendant's Sixth Amendment right of confrontation for a state by statute to preclude a face-to-face encounter between an accusing child abuse witness and a criminal defendant by requiring that a screen be placed between the defendant and the witness while the witness testifies in open court — based solely on a statutory presumption that such screen was necessary to protect child abuse victims from the trauma of facing the defendant while testifying in a sex abuse case. Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). Specifically, the Court concluded that the confrontation clause of the Sixth Amendment provides a criminal defendant with the right to confront face to face the witnesses giving evidence against him at trial; indeed, in the Court's view, this physical confrontation between the accused and his accuser is a "core guarantee" of the confrontation clause with a strong historical foundation. The Court stated:

"The Confrontation Clause does not, of course, compel the witness to fix his eyes upon the defendant; he may studiously look elsewhere, but the trier of fact will draw its own conclusions. Thus the right to face-to-face confrontation serves much the same purpose as a less explicit component of the Confrontation Clause that we have had more frequent occasion to discuss — the right to cross-examine the accuser; both `ensur[e] the integrity of the fact-finding process.' Kentucky v.

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Bluebook (online)
561 So. 2d 597, 1990 WL 37419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fricke-v-state-fladistctapp-1990.