RAYMOND ESSEX, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Raymond Essex appealed his conviction challenging the admissibility of his former testimony from his niece, B.D., at his second trial after his convictions were reversed and remanded. The court affirmed, holding that the state satisfied its burden of showing B.D. was unavailable as required by both Florida evidence law and the Sixth Amendment's Confrontation Clause.
The trial court did not err in allowing the former testimony because the state satisfied its burden of demonstrating B.D.'s unavailability under section 90.804(1), which satisfies the unavailability requirement of Crawford. A witness is unavailable when she is absent from the hearing and the proponent has been unable to procure her attendance through process or other reasonable means.
[1] Former testimony is admissible under section 90.804(2)(a), Florida Statutes, provided the declarant is unavailable as a witness.
[2] A finding of witness unavailability under section 90.804(1), Florida Statutes, satisfies the unavailability requirement of the Confrontation Clause.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“[w]here testimonial [hearsay] evidence is at issue, ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.”
Establishes the constitutional requirement for admitting prior testimony under the Sixth Amendment's Confrontation Clause
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Join FLexlaw to unlock all legal intelligenceEssex was charged with false imprisonment, robbery, and aggravated battery on a pregnant female. His fifteen-year-old niece, B.D., testified as an eye…
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GROSS, J.
We write to address one issue — whether the trial court erred in allowing the state to offer the former testimony of a witness from an earlier trial. Finding no error in the trial court’s ruling that the state had met its burden of establishing the witness’s unavailability, we affirm.
We reversed Raymond Essex’s convictions for false imprisonment, robbery, and aggravated battery on a pregnant female, and remanded for a new trial. See Essex v. State, 917 So. 2d 953 (Fla. 4th DCA 2005).
At the first trial, Essex’s fifteen-year-old niece, B.D., testified as an eyewitness. At the second trial, B.D.’s testimony from the first trial was read into evidence. On appeal, Essex attacks the admissibility of the former testimony, arguing that under section 90.804(1), Florida Statutes (2006), and Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the state did not make a sufficient showing that B.D. was unavailable.
In Crawford, the United States Supreme Court held that “[wjhere testimonial [hearsay] evidence is at issue, ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” 541 U.S. at 68, 124 S.Ct. 1354. Under the Florida Evidence Code, former testimony is admissible “provided that the declarant is unavailable as a witness.” § 90.804(2)(a), Fla. Stat. (2006). Section 90.804(1) defines the concept of “[u]navailability of a witness.” A finding that a witness is unavailable within the meaning of section 90.804(1) satisfies the unavailability requirement of Crawford. See Corona v. State, 929 So. 2d 588, 595 (Fla. 5th DCA 2006) (applying section 90.804(l)(e) to decide whether a witness was “unavailable” for the purposes of the Confrontation Clause).
Whether the state made a sufficient showing of B.D.’s unavailability to admit her former testimony is a preliminary question “concerning ... the admissibility of evidence” under section 90.105(1), Florida Statutes (2006). “The trial court’s determination that a witness is ‘unavailable’ for confrontation purposes involves a mixed question of law and fact which this court reviews de novo, giving deference to the basic, primary or historical facts as found by the trial court.” Corona, 929 So. 2d at 594 (citations omitted).
Under section 90.804(1), one of the ways that a witness is unavailable is if she “is absent from the hearing, and the proponent of [her] statement has been unable to procure [her] attendance or testimony by process or other reasonable means.” As the party seeking to introduce the former testimony, the state had the burden of showing that it exercised due diligence in making a good faith effort to secure the appearance of B.D. See McClain v. State, 411 So. 2d 316 (Fla. 3d DCA 1982).
Here we find no error in the trial court’s determination that the state satisfied its burden of demonstrating B.D.’s unavailability. See Foster v. State, 614 So. 2d 455, 459 (Fla.1992). Investigators from the state attorney’s office unsuccessfully tried to locate B.D. The state attorney’s office also contacted the Arcadia Police Department, which was unable to find B.D. at either her old or new address. The prosecutor informed the trial court that the state called all prior phone numbers associated with B.D., without locating her. As the prosecutor explained at trial, B.D. is “a 20-year-old woman now who probably doesn’t own property or cars. Every effort has been used to locate” her. Affirmed.
WARNER and TAYLOR, JJ., concur.
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Citator
Cited By
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Lukens Petit v. State, 92 So. 3d 906 (Fla. 4th DCA 2012)…rmination that a witness is ‘unavailable’ for confrontation purposes involves a mixed question of law and fact which this court reviews de novo, giving deference to the basic, primary or historical facts as found by the trial court.” Essex v. State, 958 So. 2d 431, 432 (Fla. 4th DCA 2007) (citation and quotation marks omitted). Further, whether the bond hearing provided an opportunity for cross-examination for Confrontation Clause purposes is a purely legal question and should therefore be reviewed by this co…
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Wilson v. State, 45 So. 3d 514 (Fla. 4th DCA 2010)…nsibility for evaluating the adequacy of the showing of [unavailability] rests with the trial judge, and his determination of this issue will not be disturbed unless an abuse of discretion clearly appears.”). This case falls between Essex v. State, 958 So. 2d 431 (Fla. 4th DCA 2007) and McClain v. State, 411 So. 2d 316 (Fla. 3d DCA 1982), two cases that considered the meaning of the “unavailability of a witness” within the context of the section 90.804(2)(a) former testimony exception to the rule against hea…
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Miles v. State (Fla. 1st DCA 2021)…State, 45 So. 3d 514, 516 (Fla. 4th DCA 2010). The proponent of the evidence has the burden of establishing unavailability and showing the exercise of due diligence in making a good-faith effort to secure the declarant’s attendance. Essex v. State, 958 So. 2d 431, 432 (Fla. 4th DCA 2007); McClain v. State, 411 So. 2d 316, 317 n.3 (Fla. 3d DCA 1982). To satisfy its burden under this hearsay exception, the State relies on defense counsel’s comments during the hearing on the motion to sever that J.D. had becom…
Authorities Cited
- Crawford v. Washington, 541 U.S. 36 (U.S. 2004)
- Foster v. State, 614 So. 2d 455 (Fla. 1992)
- Essex v. State, 917 So. 2d 953 (Fla. 4th DCA 2005)
- Ramirez v. State, 411 So. 2d 316 (Fla. 3d DCA 1982)
- McCLAIN v. State, 411 So. 2d 316 (Fla. 3d DCA 1982)
- Corona v. State, 929 So. 2d 588 (Fla. 5th DCA 2006)