ROGER DEAN HILL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Roger Dean Hill appeals his rape conviction, challenging the admission of a tape-recorded statement by a co-accused who invoked the Fifth Amendment and refused to testify. The court reversed Hill's conviction, holding that admitting the extrajudicial statement violated the Confrontation Clause because the witness refused to testify and the defendant did not procure that refusal.
The trial court violated the Confrontation Clause by admitting McDonald's tape-recorded extrajudicial statements inculpating Hill when McDonald refused to testify on Fifth Amendment grounds and Hill did not procure that refusal. The conviction must be reversed and the case remanded for a new trial.
[1] A trial court violates the Confrontation Clause by allowing the jury to hear an individual's extrajudicial statement inculpating the defendant when that individual refuse…
[2] A trial court errs by permitting the jury to hear a witness invoke their Fifth Amendment privilege against self-incrimination.
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Join FLexlaw to unlock all legal intelligence“It is a violation of the Confrontation Clause of the Sixth Amendment for the trial court to permit the jury to hear an individual's extrajudicial statement inculpating the defendant, if the individual refuses to testify on Fifth Amendment grounds, and if the refusal has not been procured by the defendant.”
Establishes the controlling legal standard from Douglas v. Alabama that formed the basis for reversing Hill's conviction.
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Join FLexlaw to unlock all legal intelligenceHill was convicted of rape and sentenced to 51 years and 135 days. Three individuals, including Hill and Carl Allen McDonald, allegedly raped the vict…
The full statement of facts, procedural history, and disposition for this case are member content.
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DOWNEY, Judge.
Appellant was convicted of rape and sentenced to 51 years and 135 days in the State Penitentiary.
Three individuals, including appellant and Carl Allen McDonald, allegedly raped the prosecutrix. The state tried McDonald first, and he was acquitted. Before appellant’s trial, the state subpoenaed and interrogated McDonald about the incident in question pursuant to § 914.04 F.S.1973, thereby granting him use immunity. See McDonald v. State, Fla.App.4th, 1975, 321 So. 2d 453.
Prior to appellant’s trial the prosecutor was on notice that McDonald would refuse to testify for the state on Fifth Amendment grounds. Nevertheless the state called McDonald and at the state’s request the court designated him a court witness. Then out of the presence of the jury McDonald was interrogated and he refused to testify on Fifth Amendment grounds. The court admonished McDonald that he was fully immunized from prosecution arising out of the incident in question so that he had no standing to invoke the Fifth Amendment. McDonald persisted and was adjudicated in contempt. (See McDonald v. State, above.) The jury was then recalled and McDonald, as a court witness, was once again interrogated by the state. Once again he invoked the Fifth Amendment and once again the trial judge after further admonition found him in contempt. At that point, over objection, the state sought to “refresh McDonald’s memory” by playing in the presence of the jury a tape recorded conversation between McDonald and the state attorney. McDonald continued to stand on his Fifth Amendment rights. The tape recording not only implicated McDonald in the rape but it also inculpated appellant. Finally, during closing argument the prosecutor argued that the incriminating statements on the tape matched the victim’s testimony and corroborated it.
It is a violation of the Confrontation Clause of the Sixth Amendment for the trial court to permit the jury to hear an individual’s extrajudicial statement inculpating the defendant, if the individual refuses to testify on Fifth Amendment grounds, and if the refusal has not been procured by the defendant. Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L. Ed.2d 934 (1965). Cf. Rankin v. State, Fla.1962, 143 So. 2d 193. McDonald clearly refused to testify, and McDonald’s tape clearly inculpated the appellant. The state has not asserted that appellant procured McDonald’s refusal to testify. The trial court shouxd therefore have sustained appellant’s objection to having the tape played before the jury.
We also note that under the circumstances of this case it was improper for the court to permit the jury to hear McDonald invoke his Fifth Amendment privilege. Compare Kaplow v. State, Fla.App.2d 1963, 157 So. 2d 862, with Lawrence v. Wainwright, 445 F. 2d 281 (5th Cir. 1971).
Finally, appellant contends the trial court erred in sentencing him without a presen-tence investigation in accordance with Rule 3.710 RCrP. We do not reach this question, because the cause must be retried.
For the foregoing reasons, the judgment of conviction is reversed, and the cause is remanded for a new trial.
CROSS and MAGER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Hall v. State, 381 So. 2d 683 (Fla. 1979)…of fact that the prior statements were false. Where, as here, the codefendant’s invocation of his fifth amendment privilege precludes such questioning by the defendant, the principles of Bruton and Douglas have been violated.4 Accord, Hill v. State, 330 So. 2d 487 (Fla. 4th DCA 1976). Appellee argues that no reversible error occurred because the jury was instructed that the prior statements could only be used to impeach Hoy, not as evidence of appellant’s guilt. Both Douglas and Bruton rejected such a sugges…
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Milton v. State, 993 So. 2d 1047 (Fla. 1st DCA 2008)…right not to answer, thereby creating the impression for the jury that there was incriminating evidence as to Milton. Milton was not able to overcome this impression through cross-examination, as Harrison refused to testify. We find Hill v. State, 330 So. 2d 487 (Fla. 4th DCA 1976), persuasive. In Hill, prior to the defendant’s trial the State was put on notice that its witness, a previously [*1050] acquitted codefendant, would refuse to testify. The State called him to testify anyway, and the witness refus…
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Apfel v. State, 429 So. 2d 85 (Fla. 5th DCA 1983)…Hankerson v. State, 347 So. 2d 744 (Fla. 4th DCA 1977). Where the court and the prosecution are aware that a witness will invoke the privilege, it is improper for the court to permit the jury to hear the witness invoke his privilege. Hill v. State, 330 So. 2d 487 (Fla. 4th DCA 1976). This same rule applies to preclude the defense from calling a witness to the stand for the purpose of invoking the privilege in front of the jury. See Faver v. State, 393 So. 2d 49 (Fla. 4th DCA 1981) and cases cited therein. T…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Douglas v. Alabama, 380 U.S. 415 (U.S. 1965)
- McDONALD v. State, 321 So. 2d 453 (Fla. 4th DCA 1975)
- Rankin v. State, 143 So. 2d 193 (Fla. 1962)
- Lawrence v. Louie L. Wainwright, 445 F.2d 281 (5th Cir. 1971)
- Kaplow v. State, 157 So. 2d 862 (Fla. 2d DCA 1963)