Cabrera v. State

OSTERHAUS, J.,

specially concurring.

I agree with Judge Lewis’s opinion, but acknowledge the dissent’s point that it would have been better if the trial court’s findings were more comprehensive. It’s a close call.

First, I don’t see a problem with how the court addressed the interview responses of the child victim that seemed nonsensical to adult ears. As a threshold matter, the victim testified clearly in both the pretrial interview and at trial that Appellant had violated her sexually. But she also gave some non-responsive and puzzling responses to questions during the investigative interview. These responses compelled the trial court, before ultimately admitting the interview as evidence, to give a reason for discounting certain “indications of lack of reliability” in her interview testimony—her young age. . See Weatherford v. State, 561 So.2d 629 (Fla. 1st DCA 1990); Salter v. State, 500 So.2d 184 (Fla. 1st DCA 1986). The victim was only five at the time of the interview. And the trial court explained that young witnesses often don’t quite grasp adult questions, they’re not as articulate, and their cognitive abilities just simply aren’t as good. With this explanation of less reliable aspects of her interview, as.part of deciding that the statement was sufficiently trustworthy and reliable, the trial court satisfied what the statute and our precedents require for purposes of § 90.803(23), Florida Statutes. We do not expect seamless testimony from five year-olds. See § 90.803(23), Fla. Stat. (“In making its determination, the court may consider the mental and physical age and maturity of the child ... and any other factor deemed appropriate.'”); Rodriguez v. State, 77 So.3d 649, 651 (Fla. 3d DCA 2011) (de *775 scribing that “the child’s answers were given using words consistent with a child her age”); Means v. State, 814 So.2d 1136, 1137 (Fla. 1st DCA 2002) (recognizing that the child’s testimony was “inconsistent with the exact details”). I disagree with the dissent that the trial court abused its discretion by not giving more reasons for discounting the victim’s nonsensical responses. We have said that courts needn’t, for example, specifically balance indicia of unreliability against indicia of reliability. Davis v. State, 569 So.2d 1317, 1317-18 (Fla. 1st DCA 1990). And although a more careful examination of the victim may be necessary “particularly when ... one parent might be using the child to seek an advantage over the other parent,” the trial court found that this wasn’t such a case. State v. Townsend, 635 So.2d 949, 954 (Fla.1994). Under these circumstances, I don’t think the trial court abused its discretion by attributing some of the young victim’s perplexing answers to her age and allowing her statement into evidence.

Second, I don’t think the trial court’s reliability analysis fails because it didn’t establish a definitive time of the crime. The child didn’t say exactly when the crime occurred, only that it happened “[a] little time ago.” And the dissent demonstrates that she may not have reported the crime for seven months or more. But nailing down this date doesn’t control the reliability question presented here. No statute or case, for instance, deems hearsay statements unfit for purposes of § 90.803(23) simply because the crime occurred months before. See State v. Grego, 648 So.2d 743, 747 (Fla. 2d DCA 1994) (reversing a decision to exclude statements made twenty months after the abuse). We certainly view closer contemporaneous statements to be more reliable. But the trial court considered the time—noting that the child was four when the incident occurred and five when she reported it— together with the other indicia of reliability and unreliability before deciding that the hearsay statement possessed sufficient safeguards of reliability under the statutory standard. It was not an abuse of discretion to decide the issue this way.

Finally, it bears mentioning that after the trial court found the statement reliable for purposes of admission as evidence at trial, the defendant remained free to cross-examine the victim before the jury and vigorously attack the statement’s reliability. See Mikler v. State, 829 So.2d 932, 934 (Fla. 4th DCA 2002) (explaining that “a safeguard” of reliability exists where a child testifies at trial and is available for cross-examination). And that is what happened here. My point is not that his trial remedied a § 90.803(23) evidentiary error (it didn’t, and wouldn’t even if there had been an error), but that a double protection exists in our system with respect to the reliability of this sort of evidence. The trial judge first held a hearing and found the hearsay evidence sufficiently reliable to come before the jury. Then later, the jury heard both the victim’s hearsay and live testimony, witnessed her cross-examination, and had the benefit of the defendant’s final argument highlighting the victim’s puzzling and inconsistent responses, which provided a separate safeguard of reliability. ■ > ■

In sum, although the issue is a clbse one, I cannot conclude that the trial court abused its discretion by admitting the victim’s statement into evidence.