Hopkins v. State

608 So. 2d 33, 1992 WL 170976
CourtDistrict Court of Appeal of Florida
DecidedAugust 24, 1992
Docket91-590
StatusPublished
Cited by4 cases

This text of 608 So. 2d 33 (Hopkins 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
Hopkins v. State, 608 So. 2d 33, 1992 WL 170976 (Fla. Ct. App. 1992).

Opinion

608 So.2d 33 (1992)

John Harvey HOPKINS, Sr., Appellant,
v.
STATE of Florida, Appellee.

No. 91-590.

District Court of Appeal of Florida, First District.

July 23, 1992.
Dissenting Opinion August 24, 1992.
Rehearing Denied August 25, 1992.

*34 Ronald W. Johnson, Kinsey, Troxel, Johnson & Walborsky, P.A., Pensacola, for appellant.

Robert A. Butterworth, Atty. Gen., and Amelia L. Beisner, Asst. Atty. Gen., Tallahassee, for appellee.

Dissenting Opinion of Judge Zehmer August 24, 1992.

ALLEN, Judge.

Following a jury trial, the appellant was adjudicated guilty of three counts of sexual battery upon a child less than 12 years old and one count of handling or fondling the same child in a lewd and lascivious manner. Raising numerous issues, he appeals his conviction and sentences for these offenses. We conclude that the appellant failed to preserve his arguments concerning the child victim's testimony via closed circuit television and the court's admission of her out-of-court statements. We reject the appellant's other claims of error because we find them to be lacking in merit, not preserved for review or merely harmless. We affirm the appellant's conviction and sentences and certify a question to the supreme court.

Section 92.54, Florida Statutes (1989), permits a trial judge to order that the testimony of a child victim or witness to a sexual offense be taken outside of the courtroom and shown to the jury by means of closed circuit television. Such an order is permissible only upon motion and after an in camera hearing has persuaded the judge that "there is a substantial likelihood that the child will suffer at least moderate emotional or mental harm if required to testify in open court or that such victim or witness is unavailable as defined in section 90.804(1)." § 92.54(1), Fla. Stat. Section 92.54(5) requires the judge to detail the *35 reasons for his ruling with these words: "The court shall make specific findings of fact, on the record, as to the basis for its ruling under this section."

Pursuant to section 92.54, the prosecutor sought to present the trial testimony of the alleged child victim via closed circuit television. At the hearing on the motion, the prosecutor presented testimony by the child's mother and by a psychologist, Michael DeMaria. At the conclusion of the hearing, the judge granted the prosecutor's motion, saying:

I'm going to take and make a finding of fact that based upon the testimony that I heard from the mother, based upon the testimony that I heard from Dr. DeMaria, that there is a substantial likelihood and even a very large percentage when you talk about substantial likelihood that the child in this case will suffer more than moderate emotional or mental harm if required to testify in open court. I'm making a finding of fact that the child will suffer substantial and high emotional or mental harm if required to testify in court based upon the testimony of the natural mother and also Dr. DeMaria. And I want to make a specific finding of fact of that and I would like to adopt and ratify and make my finding of fact the testimony of the natural mother and the testimony of Dr. DeMaria's direct examination.

Thereafter, the judge entered a written order granting the prosecutor's motion and attached to it a transcript of the testimony given by the mother and DeMaria at the hearing.

The trial judge's recitation of the statutory standard and explanation that his ruling was based upon the testimony at the hearing might not have satisfied section 92.54(5)'s requirement of specific findings as to the basis for his ruling. In Jaggers v. State, 536 So.2d 321 (Fla. 2d DCA 1988), the state had filed a motion under section 92.53, Florida Statutes, to videotape the testimony of two children outside the presence of the defendant and use the videotape at trial in lieu of the children's live testimony. Section 92.53 sanctions such a procedure, but, as in section 92.54(5) at issue here, the trial court must "make specific findings of fact, on the record, as to the basis for its ruling." Section 92.53(7), Fla. Stat. Just as in the case before us, at the conclusion of the hearing in Jaggers's case, the judge granted the state's motion, ruled that there was a substantial likelihood that the children would suffer at least moderate emotional trauma or mental harm if they were required to testify in open court, and explained that his decision was based on hearing testimony of the children's guardian ad litem. Jaggers, 536 So.2d at 324. The appellate court reversed Jaggers's conviction because the trial judge had not made the findings of fact required under section 92.53(7). Significantly, the court observed that the statute would be unconstitutional without the case-specific findings mandated by section 92.53(7). Specifically, the court said:

A review of the record reflects that the trial court did not make the required findings of fact under section 92.53(7) necessary to support its determination that the two child witnesses, whose testimonies were video taped, would suffer at least moderate emotional or mental harm if they were required to testify in open court. Such a case-specific finding mandated by section 92.53 is precisely what renders that statute constitutional, because the statute is closely tailored to protect the child victim only in those particular circumstances were [sic] it is deemed necessary.

Jaggers, 536 So.2d at 329. In Leggett v. State, 565 So.2d 315, 318 (Fla. 1990), the supreme court approved this language from Jaggers and reversed an attempt by this court in Leggett v. State, 548 So.2d 249 (Fla. 1st DCA 1989), to limit Jaggers to cases in which the record reveals inadequate evidentiary support for the judge's ruling.

Section 92.54, like its companion, section 92.53, impacts a defendant's right to a "face-to-face meeting with witnesses appearing before the trier of fact," a right which is guaranteed by the Sixth Amendment's Confrontation Clause. Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d *36 857 (1988). This right to a face-to-face confrontation with witnesses is not absolute, however, and it may give way "where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured." Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). Thus, when a trial judge makes a case-specific finding that a child witness would be traumatized by testifying in the presence of the defendant, the state's interest in protecting the child from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits the child to testify at trial in the absence of a face-to-face confrontation with the defendant. Maryland v. Craig, at 855-56, 110 S.Ct. at 3169, 111 L.Ed.2d at 685. The case-specific findings required by section 92.54(5) serve the same purpose as those required by section 92.53(7); they render the statute constitutional and the consequent denial of the defendant's right to face-to-face confrontation permissible.

The state argues that we need not decide whether the trial court's findings were sufficient, because the issue has not been preserved for appellate review.

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Related

Hopkins v. State
632 So. 2d 1372 (Supreme Court of Florida, 1994)
Lewis v. State
626 So. 2d 1073 (District Court of Appeal of Florida, 1993)
Sigmon v. State
622 So. 2d 57 (District Court of Appeal of Florida, 1993)
Feller v. State
617 So. 2d 1091 (District Court of Appeal of Florida, 1993)

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608 So. 2d 33, 1992 WL 170976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hopkins-v-state-fladistctapp-1992.