BALTHAZAR DIAZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1993-05-14
No. 91-03959
RYDER, A.C.J., and CAMPBELL, J., concur.
618 So. 2d 346 Florida District Court of Appeal, Second District (1993) Positive Treatment
Cited by 13 cases

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Synopsis

Defendant Balthazar Diaz was convicted of two counts of capital sexual battery against an eight-year-old child. On appeal, he challenged the trial court's admission of the child victim's hearsay statements under Florida's child hearsay exception statute. The court affirmed the conviction, finding the admission of statements to the school principal proper but the admission of statements to the detective erroneous, yet harmless beyond a reasonable doubt.


Holding

The trial court properly admitted the victim's hearsay statements to the principal because it made sufficient case-specific findings addressing reliability, noting consistency with trial testimony and the timing of the statements. However, the court erred in admitting the victim's hearsay statements to the detective because its findings were conclusory boilerplate that failed to specifically identify safeguards of reliability. Nevertheless, the error was harmless beyond a reasonable doubt given the properly admitted statements to the principal, the unchallenged statements to the HRS investigator, the strong Williams rule evidence, and the victim's consistent trial testimony.


Headnotes

[1] A trial court must make case-specific findings, beyond mere boilerplate, to admit hearsay statements under section 90.803(23), Florida Statutes.

[2] A trial court's conclusory findings that merely track statutory language are insufficient to admit hearsay statements under section 90.803(23), Florida Statutes.

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Key Quotes

“It is clear enough that boilerplate findings that merely track the statutory language of section 90.803(23)(a)1 are insufficient; the court must make findings that are case-specific.”

Establishes the standard that trial courts must make case-specific findings when admitting child hearsay under the statute, not merely recite statutory language.

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Facts & Procedural History

An eight-year-old girl was the victim of digital penetration of her vagina and anus by defendant Diaz. The victim made statements about the abuse to t…

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Opinion of the Court
LEHAN, Judge.

LEHAN, Judge.

Defendant was convicted of two counts of capital sexual battery after a jury found that he had digitally penetrated the child victim’s vagina and anus. His sole contention on appeal is that the trial court erred in admitting, under section 90.803(23), Florida Statutes (1991), the prior hearsay statements of the victim, an eight-year-old girl, to two individuals, the victim’s school principal, Rose Chillura, and a detective, Sherry Bouknecht. He does not challenge the admission of the victim’s hearsay statements to a third individual, an HRS investigator. We affirm.

At issue is whether the trial court adequately followed the procedural safeguards of section 90.803(23) in admitting the victim’s hearsay statements to the principal and the detective. According to both Chil-lura and Bouknecht, the victim told them, consistent with her trial testimony, that defendant had digitally penetrated her vagina and anus.

As to the Chillura hearsay testimony, we do not conclude that the trial court erred. It is clear enough that boilerplate findings that merely track the statutory language of section 90.803(23)(a)l are insufficient; the court must make findings that are case-specific. Jaggers v. State, 536 So. 2d 321, 325 (Fla. 2d DCA 1988).

We recognize that the court in this case during the hearing expressed concern over the child’s immaturity and her inconsistent explanations regarding $10 she had in her possession after commission of the offenses. The child gave different explanations, saying at one point that she had received the money from her father’s cousin and at another that defendant had given it to her. We also note that some of the court’s findings appear to be nothing more than conclusory boilerplate.

Nonetheless, we conclude that the court ultimately made sufficient case-specific findings going beyond mere boilerplate. Included were the court’s notations that the hearsay related by Chillura had “no inconsistency” with the victim’s own testimony it had heard “yesterday” at trial, except for the “one inconsistent statement” with regard to the $10,1 and that the victim made the statements to Chillura “the day after the incident and I believe two days after the incident.”

As to the Bouknecht hearsay testimony, however, we conclude that the trial court’s findings were not adequate. The court merely stated:

the circumstances of Melissa’s statements to the detective do, in fact, provide sufficient safeguards of reliability and in making this finding, the court again has considered the mental and physical age and maturity of Melissa, the reliability of her assertions itself or themselves, as well as the reliability of the child victim.

The court failed to identify what “sufficient safeguards of reliability” it had in mind, how the victim demonstrated maturity (earlier in the proceedings, the court had made a specific comment to the contrary regarding the victim’s maturity), and how the victim and her statements demonstrated “reliability.”

In short, we conclude that while the trial court did not err in admitting the hearsay related by Chillura, it erred in admitting the hearsay related by Bouknecht.

The state argues that even if any error occurred, it was not preserved for appeal. This argument need not be reached with regard to Chillura, since as noted above, the trial court did not err in admitting her hearsay testimony.

Nonetheless, we note that even if the court did err in that regard, defendant’s trial counsel failed to preserve such error for appeal.

At the hearing, after Chillura’s testimony was proffered and before the trial court made its findings, defense counsel stated: “And I don’t believe they [the state] have done anything other than provide the statements themselves that would tend to indi cate the trustworthiness.” Counsel, however, did not argue how the statements appeared to lack trustworthiness. The court then made its findings as discussed above. After the court made those findings, counsel made no objection concerning their sufficiency.

As for Bouknecht, however, we do not agree with the state that defense counsel failed to preserve the error for appeal. After Bouknecht’s testimony was proffered and before the trial court made its findings, defense counsel stated, “Once again, I see no indicia provided by the state to show reliability other than the fact the statements were made.... ” Defense counsel thereby appears to have been making no more than a boilerplate objection that failed to identify any deficiencies in the proffered hearsay.

However, this time defense counsel did object to the trial court’s findings immediately after they were made: “Once again, Your Honor, I consider the record protected as far as any objections to evidence submitted under section 90.803.” The court then acknowledged: “Yes, your record is protected.” While defense counsel’s objection to Bouknecht’s proffered testimony was overly general, at least it was timely made, and the court’s subsequent acknowledgment, we conclude, rendered it sufficient.2

The state further argues that any error was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). As indicated above, we have concluded that the trial court erred in admitting the hearsay related by Bouk-necht and that that error was preserved for appellate review. The question then becomes whether the erroneous admission of Bouknecht’s testimony was harmless.

We conclude that it was, as we will explain, though we are not unmindful that the evidence in this case was purely testimonial and from a young girl and that there was no corroborative physical or medical evidence. Williams rule3 evidence in this case, which defendant does not challenge on appeal, is strong; the facts comprising that evidence fairly closely track the instant facts. Further, as indicated above, defendant did not challenge the admission of the victim’s hearsay statements to the HRS investigator. While those statements could be taken to mean only that criminal conduct short of penetration actually occurred, the jury in our view was entitled to conclude that no conflict actually existed between those statements and the other evidence against defendant.

Finally, as we have explained, Chillura’s testimony relating the victim’s hearsay was properly admitted.

We conclude that these factors taken together render harmless beyond a reasonable doubt the error concerning Bouknecht’s testimony. See DiGuilio.

Affirmed.

RYDER, A.C.J., and CAMPBELL, J., concur. . Defendant in his brief takes issue with this finding, pointing out some other inconsistencies, such as the clothing the victim was wearing during the incident in question. Though we agree there was more than one inconsistency, we cannot conclude that the trial court abused its discretion in implicitly deeming these inconsistencies inconsequential, especially given the victim’s age.

. Since we conclude that the hearsay related by Chillura was properly admitted, we need not decide whether the court’s blanket acknowledgement here cures defense counsel's earlier failure to object to the court’s findings regarding Chillura.

. Williams v. State, 110 So. 2d 654 (Fla.1959) (codified in section 90.404(28)(c), Florida Statutes (1991)).


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Citator

Cited By

  • Garcia v. State, 659 So. 2d 388 (Fla. 2d DCA 1995)
    …rved that it “envisions that the court will set forth the specific reasons that it relied upon and not [*392] merely recite the statutory requirements relating to reliability.” Feller v. State, 637 So. 2d 911, 915 (Fla.1994); see also Diaz v. State, 618 So. 2d 346, 348 (Fla. 2d DCA) (boilerplate findings that merely track statutory language insufficient; trial court must make case-specific findings), review denied, 626 So. 2d 204 (Fla.1993). More important, a “[fjailure to make specific findings not only igno…
    1 / 2
  • Heuss v. State, 660 So. 2d 1052 (Fla. 4th DCA 1995)
    …e agree with appellant that the findings of the trial court merely track the statutory language of section 90.803(23) and, as such, are insufficient. See Hopkins, 632 So. 2d at 1377; Lacue v. State, 562 So. 2d 388 (Fla. 4th DCA 1990); Diaz v. State, 618 So. 2d 346 (Fla. 2d DCA), rev. denied, 626 So. 2d 204 (Fla.1993). The supreme court in Hopkins, when confronted with constitutional error, further explained that the trial court’s failure to make adequate findings pursuant to section 90.803(23) does not const…
  • Minor Platt, Jr. v. State, 201 So. 3d 775 (Fla. 4th DCA 2016)
    …te, 659 So. 2d 388, 392 (Fla. 2d DCA 1995) (failure to make findings of reliability required by section 90.803(23), Florida Statutes (2014), “does not mandate automatic reversal, but instead is subject to a harmless error analysis.”); Diaz v. State, 618 So. 2d 346, 349 (Fla. 2d DCA 1993) (insufficient findings under section 90.803(23), Florida Statutes, constituted harmless error where Williams rule corroborating evidence and other child hearsay statements were otherwise properly admitted). . Williams rule…

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