Petition for Writ of Certiorari — Terry Jonathan Phillips, Petitioner v. Florida

Supreme Court briefOct 19, 2021

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APPENDIX

Phillips v. State, 316 So.3d 779 (2021)

46 Fla. L. Weekly D933

For an error to justify reversal absent a timely

objection, the error must run so deeply through

the trial proceedings that it affects the validity

of the trial itself; the error must be entwined

so closely with the verdict that one is forced to

conclude that the verdict could not have been

obtained without the assistance of the error.

316 So.3d 779

District Court of Appeal of Florida, First District.

Terry Jonathon PHILLIPS, Appellant,

STATE of Florida, Appellee.

No. 1D19-470

April 23, 2021

Synopsis

Background: Defendant was convicted in the Circuit Court,

1st Judicial Circuit, Santa Rosa County, David Rimmer, J.,

of three counts of sexual battery and one count of lewd

and lascivious molestation of child victim's sexual organs.

Defendant appealed.

[2]

[3]

[2] error in admission of CPI was not fundamental as to two

of three counts of sexual battery and one count of lewd or

lascivious molestation;

§ 16;

[4]

Affirmed in part, reversed in part, and remanded.

Makar, J., filed concurring opinion.

[5]

Necessity of Objections in

Criminal Law

Availability of declarant

Amend. 6; Fla. Const. art. 1, § 16;

Ann. §§ 90.803, 90.804.

Procedural Posture(s): Appellate Review; Trial or Guilt

Phase Motion or Objection.

Criminal Law

General

Fla. Stat. Ann. §§ 90.803, 90.804.

Where

Confrontation

Clause

applies,

admissibility of any hearsay evidence is

ultimately conditioned on source of hearsay

being unavailable as witness at trial and on

existence of prior opportunity for defense to

have cross-examined said witness. U.S. Const.

[4] defendant's trial was not a capital case.

[1]

Criminal Law

Out-of-court statements and

hearsay in general

When hearsay evidence is offered against a

defendant under an exception, requirements of

Confrontation Clause must be met for evidence

to be deemed admissible, regardless of whether

any challenged evidence is found to meet any of

the statutory exceptions to general prohibition on

hearsay. U.S. Const. Amend. 6; Fla. Const. art. 1,

[1] child victim's statements in child protection interview

(CPI) were testimonial in nature;

West Headnotes (16)

Necessity of Objections in

An error is deemed fundamental when it goes to

the foundation of the case or the merits of the

cause of action and is equivalent to a denial of

due process.

Holdings: The District Court of Appeal, M.K. Thomas, J.,

held that:

[3] error in trial court's admission of CPI was fundamental as

to one count of sexual battery; and

Criminal Law

General

Fla. Stat.

Criminal Law

Out-of-court statements and

hearsay in general

Not all hearsay implicates the concerns of the

Confrontation Clause; therefore, not all hearsay

falls within the scope of its protections. U.S.

Phillips v. State, 316 So.3d 779 (2021)

46 Fla. L. Weekly D933

Const. Amend. 6; Fla. Const. art. 1, § 16;

Stat. Ann. §§ 90.803, 90.804.

[6]

of interview was very similar to a method of

interrogation, CPI was along the lines of a

solemn declaration of issues by child victim

made for purpose of establishing past facts,

and primary purpose of interview ended as

evidence-gathering mission conducted by person

specialized in carefully extracting said details

from child victim. U.S. Const. Amend. 6; Fla.

Const. art. 1, § 16.

Fla.

Criminal Law

Out-of-court statements and

hearsay in general

Where nontestimonial hearsay is at issue, the

Confrontation Clause is not implicated, and the

admissibility of any hearsay evidence is wholly

governed by the controlling laws of evidence.

U.S. Const. Amend. 6; Fla. Const. art. 1, § 16;

[10]

Fla. Stat. Ann. §§ 90.803, 90.804.

[7]

Criminal Law

Where a piece of hearsay evidence bears a

testimonial character, it is covered by the

Confrontation Clause, and admissibility will

also be dependent on unavailability and a prior

opportunity for cross-examination. U.S. Const.

[8]

Fla. Stat.

Criminal Law

Out-of-court statements and

hearsay in general

Hearsay is testimonial, for Confrontation Clause

purposes, when the circumstances objectively

indicate that there is no ongoing emergency, and

that the primary purpose of the interrogation

is to establish or prove past events potentially

relevant to later criminal prosecution. U.S.

Const. Amend. 6; Fla. Const. art. 1, § 16;

Stat. Ann. §§ 90.803, 90.804.

[9]

Criminal Law

evidence

[11]

Criminal Law

Reception of evidence

Trial court's unpreserved error in admitting

child victim's statements in child protection

interview (CPI), in violation of defendant's right

to confrontation, was fundamental as to count of

sexual battery that alleged union of defendant's

penis with child victim's anus, and thus reversal

of conviction was required, where allegation was

not supported by other record evidence. U.S.

Const. Amend. 6; Fla. Const. art. 1, § 16.

Fla.

Use of documentary

Child victim's statements in child protection

interview (CPI) were testimonial in nature in

trial for sexual battery and lewd or lascivious

molestation, and thus entry of statements

violated defendant's constitutional right to

confrontation; importance that only truthful

statements be made was discussed with child

victim early on, interviewer's professed method

Reception of evidence

Trial court's unpreserved error in admitting

child victim's statements in child protection

interview (CPI), in violation of defendant's right

to confrontation, was not fundamental as to two

of three of the counts of sexual battery and

one count of lewd or lascivious molestation,

and thus reversal of those convictions was not

required; sexual battery counts were supported

by observations of victim's mother that victim

repeatedly got yeast infections after visiting with

defendant, victim's mother observed redness

and irritation inside victim's vagina, male DNA

was found on vaginal swab taken during

victim's physical exam, and lewd or lascivious

molestation count was supported by mother's

observations of victim acting out sexual touching

on her dolls and on herself. U.S. Const. Amend.

6; Fla. Const. art. 1, § 16.

Availability of declarant

Amend. 6; Fla. Const. art. 1, § 16;

Ann. §§ 90.803, 90.804.

Criminal Law

[12]

Criminal Law

Conduct of Trial in General

Criminal Law

Preferability of raising

effectiveness issue on post-conviction motion

Phillips v. State, 316 So.3d 779 (2021)

46 Fla. L. Weekly D933

Defendant's claim that trial counsel's failure

to specifically object to child protection

interview (CPI) as violation of Confrontation

Clause constituted ineffective assistance was

not plain on face of the record, and thus

was not appropriately brought in direct appeal

and instead should have been brought in

postconviction motion. U.S. Const. Amend. 6.

[13]

Criminal Law

*781 On appeal from the Circuit Court for Santa Rosa

County, David Rimmer, Judge.

Attorneys and Law Firms

Jessica J. Yeary, Public Defender, and Victor Holder,

Assistant Public Defender, Tallahassee, for Appellant.

Effective assistance

Ineffectiveness of counsel claims are rarely

cognizable on direct appeal. U.S. Const. Amend.

Ashley Moody, Attorney General, and Damaris Reynolds,

Assistant Attorney General, Tallahassee, for Appellee.

Opinion

M.K. Thomas, J.

[14]

Criminal Law

Conduct of Trial in General

Criminal Law

Effective assistance

Ineffective assistance of counsel claims are only

appropriate outside of a postconviction motion

when the appellant demonstrates ineffectiveness

on the face of the record, indisputable prejudice,

and the lack of any conceivable tactical

explanation for counsel's action. U.S. Const.

Amend. 6.

[15]

Jury

Jury of less than twelve persons

Defendant's trial for sexual battery and lewd

or lascivious molestation was not a capital

case, and thus defendant was not required to

have a 12-person jury, rather than a six-person

jury; defendant could not be sentenced to death

for crime alleged, and capital case was only

one where death was possible penalty.

Stat. Ann. §§ 775.082(1)(a),

913.10.

[16]

Fla.

794.011(2)(a),

Criminal Law

Cases and questions

reserved or certified

Court of Appeals would decline defendant's

request to certify question of six-person jury on

all non-capital criminal cases to Supreme Court,

where there was no indication that any current reinterpretation of language would yield a different

result. Fla. Stat. Ann. § 913.10.

Terry Phillips (Appellant) raises three arguments for reversal

in this direct appeal of the criminal judgment and sentence

against him. He argues reversible error because: 1) the

admission of a videotaped copy of the child protection

interview (CPI) into evidence during his jury trial violated

his Sixth Amendment right to confrontation; 2) he received

constitutionally ineffective assistance of counsel when his

defense attorney did not object to the entry of the video on

confrontation grounds; and 3) his trial was by a six-person

jury—rather than one composed of twelve jurors. Appellant

concludes that these errors require reversal and a new trial

on all counts. Regarding his third issue, he requests that we

certify a question of great public importance to the Florida

Supreme Court. For the reasons explained herein, we affirm

in part, reverse in part, and remand for further proceedings.

We decline the request to certify a question of great public

importance.

Appellant was tried on six counts. Counts one through five

allege he sexually battered his daughter—a child between

the ages of two and four during the abuse—in violation

section 794.011(2)(a), Florida Statutes. Count six

alleged that he committed lewd and lascivious molestation

of the child victim's sexual organs in violation of

section

800.04(5)(b), Florida Statutes. A jury found Appellant guilty

as charged on counts one, two, five, and six. Appellant was

adjudicated guilty and sentenced to life in prison on counts

one, two, and five, and twenty-five years in prison on count

six. He now appeals these verdicts and sentences.

Phillips v. State, 316 So.3d 779 (2021)

46 Fla. L. Weekly D933

deemed admissible, regardless of whether any challenged

evidence is found to meet any of the statutory exceptions

I. Confrontation Clause

After the mother became concerned and allegations against

Appellant were reported to the authorities, the child victim

participated in a forensic interview. A video of the CPI

was admitted as evidence at trial. On appeal, Appellant first

argues that the entry of the CPI into evidence at trial violated

his constitutional right “to be confronted with the witnesses

against him.” Amend. VI, U.S. Const.; see also Art. I, § 16(a),

Fla. Const. (requiring that an accused shall have the right “to

confront at trial adverse witnesses ...”).

to the general prohibition on hearsay. See

Crawford v.

Washington, 541 U.S. 36, 50–51, 124 S.Ct. 1354, 158 L.Ed.2d

177 (2004); Frazier v. State, 250 So. 3d 794, 797 (Fla. 1st

DCA 2018) (explaining that, “even though the Legislature

balanced the defendant's rights, admission of the child hearsay

statements under

section 90.803(23) can still violate a

defendant's constitutional rights”). Where the Confrontation

Clause applies, the admissibility of any hearsay evidence is

ultimately conditioned on the source of the hearsay being

unavailable as a witness at trial and on the existence of a

*782 [1]

[2] Appellant did not raise the confrontation prior opportunity for the defense to have cross-examined said

argument at trial, instead settling for a general “standing”

witness.

Crawford, 541 U.S. at 59, 124 S.Ct. 1354.

objection to anything which would otherwise be hearsay.

Because the confrontation argument was not raised and

[5]

[6]

[7] The threshold question is whether the

argued below, the issue is not preserved for appeal. See

requirements of the Confrontation Clause apply to any

particular piece of hearsay evidence. As the Supreme Court

Harrell v. State, 894 So. 2d 935, 940 (Fla. 2005). However,

has explained, not all hearsay implicates the concerns of

an unpreserved argument is reviewable if it constitutes

the Confrontation Clause; therefore, not all hearsay falls

fundamental error. See § 924.051(3), Fla. Stat. (“An appeal

within the scope of its protections. See

id. at 51, 124

may not be taken from a judgment or order of a trial court

S.Ct.

1354.

The

“principal

evil

which

the

Clause was

unless a prejudicial error is alleged and is properly preserved

directed” was the use of “ex parte examinations as evidence

or, if not properly preserved, would constitute fundamental

error.”). For an error to justify reversal absent a timely

against the accused.”

Id. at 50, 124 S.Ct. 1354. “Where

objection, the error must run so deeply through the trial

nontestimonial hearsay is at issue,” the Confrontation Clause

is not implicated, and the admissibility of any hearsay

proceedings that it affects the validity of the trial itself. F.B.

evidence is wholly governed by the controlling laws of

v. State, 852 So. 2d 226, 229 (Fla. 2003). The error must

be entwined so closely with the verdict that one is forced

to conclude that the verdict could not have been obtained

without the assistance of the error.

Id. Further, “an error is

deemed fundamental ‘when it goes to the foundation of the

case or the merits of the cause of action and is equivalent to a

denial of due process.’ ”

Id. (quoting

So. 2d 1376, 1378 (Fla. 1998)).

J.B. v. State, 705

evidence.

Id. at 68, 124 S.Ct. 1354. However, where a

piece of hearsay evidence bears a “testimonial character,” it is

covered by the Confrontation Clause, and admissibility will

also be dependent on unavailability and a prior opportunity

for cross-examination.”

Davis v. Washington, 547 U.S.

813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).

*783 The Supreme Court has not endorsed any specific

[3]

[4] Both the United States and Florida constitutions definition for what constitutes a “testimonial” statement

subject to the Confrontation Clause but has offered that,

require that a criminal defendant be allowed to confront the

“[r]egardless of the precise articulation, some statements

witnesses against him. See Amend. VI, U.S. Const.; Art. I,

qualify under any definition,” such as ex parte testimony

§ 16, Fla. Const. Typically, this requirement is satisfied by

offered at a preliminary hearing and statements taken by the

cross-examination of a witness during live testimony. In some

instances, however, hearsay evidence may be offered against

police during an interrogation. See

Crawford, 541 U.S. at

a defendant in accordance with one of several exceptions

52, 124 S.Ct. 1354. The Supreme Court has further explained

what constitutes a testimonial statement as follows:

found in

sections 90.803 and 90.804, Florida Statutes,

in which case in-person cross-examination during trial may

not be an option. In such instances, the requirements of the

Confrontation Clause must be met for the evidence to be

Phillips v. State, 316 So.3d 779 (2021)

46 Fla. L. Weekly D933

Inadi, 475 U.S. 387, 394, 106 S.Ct. 1121, 89 L.Ed.2d 390

(1986)).

Statements are nontestimonial when

made in the course of police

interrogation under circumstances

objectively indicating that the primary

purpose of the interrogation is to

enable police assistance to meet

an ongoing emergency. They are

testimonial when the circumstances

objectively indicate that there is no

such ongoing emergency, and that the

primary purpose of the interrogation

is to establish or prove past events

potentially relevant to later criminal

prosecution.

Davis, the Supreme Court returned to the central theme

Crawford in reiterating that it was the “testimonial

character” of certain hearsay statements that caused them

to be covered by the Confrontation Clause.

Id. at 821,

126 S.Ct. 2266. There, the Supreme Court was addressing

statements made by a victim of domestic violence to a 911

operator during an ongoing emergency.

Id. at 817, 126

S.Ct. 2266. The Court concluded that the statements made

during the 911 questioning simply did not rise to the level

of the victim testifying as a witness, as contemplated by

the Confrontation Clause.

Id. at 828–29, 126 S.Ct. 2266.

The court in

Davis noted that the statements described an

ongoing emergency as it was occurring, as contrasted with the

questioning of the victim in

Crawford, which took place

hours after the incident ended.

Id. at 827, 126 S.Ct. 2266.

“[V]iewed objectively,” the statements “were necessary to be

able to resolve the present emergency, rather than simply to

learn (as in

Crawford) what had happened in the past.”

Id. Therefore, because “the circumstances of [the 911]

interrogation objectively indicate its primary purpose was to

enable police assistance to meet an ongoing emergency,” the

statements were found not to be a “ ‘weaker substitute for

live testimony’ at trial.” 1

Id. (quoting

potentially relevant to later criminal prosecution.”

State

v. Contreras, 979 So. 2d 896, 903 (Fla. 2008) (quoting

Davis, 547 U.S. at 822, 126 S.Ct. 2266).

Contreras

specifically addressed the question of whether the statements

of a child victim taken during a CPI violated a defendant's

right to confrontation. In finding the child hearsay at issue

bore the testimonial character contemplated in the Sixth

Amendment, the supreme court noted that child protection

teams (CPT) are statutorily tied to local law enforcement and

prosecuting agencies, and that one of the statutory purposes

of CPTs is to provide testimony in court.

Id. This

supported their conclusion that such interviews were largely

Davis, 547 U.S. at 822, 126 S.Ct. 2266.

[8] In contrast, hearsay is testimonial “when the

circumstances objectively indicate that there is no such

ongoing emergency, and that the primary purpose of

the interrogation is to establish or prove past events

United States v.

motivated by a search for evidence.

Id. In *784

concluding the CPT statements were testimonial, the court

stated:

In light of the police presence

and the electronic connection, we

conclude that the CPT coordinator

was serving as a police proxy in this

interview. This is reinforced by the

statutory connection of the CPT to

such investigations and prosecutions.

Thus, ... this kind of interview

by a CPT is indistinguishable from

an ordinary police interrogation.

Moreover, the primary, if not the sole,

purpose of the CPT interview was

to investigate whether the crime of

child sexual abuse had occurred, and to

establish facts potentially relevant to a

later criminal prosecution.

Id. at 905 (internal marks and citations omitted).

[9] We now turn to the circumstances of Appellant's case

to determine whether entry of the child hearsay evidence

against him constitutes fundamental error. The record does

Phillips v. State, 316 So.3d 779 (2021)

46 Fla. L. Weekly D933

not indicate—and the State does not argue—that Appellant

was ever given the opportunity to confront the child victim's

testimony. That said, the only question in determining

whether the entry of the CPI was erroneous is whether

the statements therein bore a testimonial character. If the

statements were testimonial in nature, the entry of the

statements was a violation of Appellant's constitutional right

to confrontation.

Appellant argues that

Contreras is controlling. We

agree. Both in pretrial hearings and at the trial, the CPI

interviewer testified that there were a number of observants

in a room adjacent to the interview room during the interview.

Detective Leach acknowledged during testimony that he

was one of the individuals observing the interview, and

the interviewer testified that she went into the observation

room after her initial questioning of the victim to determine

whether any of the observants wanted her to conduct

follow-up questioning of the victim. The State argues that

Contreras is distinguishable because the officer there

was electronically connected to the interviewer in real time.

This is a distinction without a difference. The circumstances

make clear that Detective Leach could have directed a line

of questioning during the interview if he felt it necessary—

as was the case in

Contreras—regardless of his lack

of a real-time connection. Whether he actually did so is

immaterial, no less than if the officer in

Contreras had

remained electronically connected to the interview without

ever actually directing any questioning.

Further, the testimonial character of the CPI statements

here is reinforced by the nature of the interview itself.

As confirmed by the interviewer, the importance that only

truthful statements be made was discussed with the victim

early on. Express emphasis on truth is, of course, one of

the central themes of a trial-like statement. Additionally, the

interviewer's professed method of interview, as described by

her trial testimony, was very similar to Detective Leach's

description of his method of interrogating Appellant in

several important ways, with both parties testifying that

they began their respective interviews by building a rapport

with their respective subject before moving to more focused

questioning regarding allegations. The nature of the interview,

thus, objectively indicates that the CPI was along the lines of

a “solemn declaration” of issues by the child victim made for

the purpose of establishing past facts. See

U.S. at 51, 124 S.Ct. 1354.

Crawford, 541

The State counters that the primary purpose of a CPI is to

determine the need for treatment of a child. Although no

reasonable person could deny that the sexual abuse of a

child is an emergency, the “ongoing emergency” examined

Davis *785 was a present and immediate threat to

physical safety. This record does not support that there was

such an immediate threat at the time of the victim's interview.

Even if it could be said that the initial purpose of the

interview was treatment-oriented, its purpose ended as an

evidence gathering mission. The CPI continued in asking

the victim for detail regarding the abuse and continued in

asking for any other instances of abuse well after the presence

of abuse (and the need for treatment) had been confirmed.

This probing for additional and specific detail confirms that,

at the least, the primary purpose of the interview ended

as an evidence-gathering mission conducted by a person

specialized in carefully extracting said details from a child

victim. Objectively speaking, the record indicates that the CPI

was a highly specialized form of interrogation done for the

purpose of establishing past facts as described in

This makes the statements testimonial.

Davis.

That said, because Appellant was not given a prior

opportunity to cross-examine the child victim, had Appellant

objected the entry of the CPI against him at trial would have

been erroneous as a violation of his constitutional right to

confrontation. Thus, the question now becomes whether in the

absence of an objection the error is fundamental as applied

to Appellant's four convictions. Regarding counts one, five,

and six, we conclude that the entry of the CPT tape did not

constitute fundamental error.

[10] Counts one and five were independently supported by

the victim's mother's testimony that the victim repeatedly got

yeast infections after visiting with Appellant. In addition,

she observed redness and irritation inside the victim's vagina

and testified to non-testimonial hearsay statements made by

the victim describing digital penetration by Appellant. Male

DNA was also found on the vaginal swab taken during the

victim's physical exam, indicating penile union. Regarding

count six, the mother testified to her observations of the

victim acting out sexual touching on her dolls and on herself,

which could be taken as evidence that someone was doing the

same to her. This circumstantial evidence served to confirm

Appellant's acknowledgements of sexual activity with the

child, as testified to by Detective Leach. The entirety of the

record considered, we must conclude that it cannot be said

Phillips v. State, 316 So.3d 779 (2021)

46 Fla. L. Weekly D933

that verdicts on counts one, five, and six “could not have been

obtained without the assistance of the alleged error.”

[11] Count two—which alleged union of Appellant's penis

with the victim's anus—is not supported by other record

evidence. Had the CPI not been entered into evidence,

no grounds on which the jury could have logically found

guilt on count two existed. That said, we must conclude

that Appellant's trial on count two was permeated with

the invalidity of the erroneous admission of the CPI tape.

Therefore, the error on count two is fundamental.

The foregoing considered, Appellant's judgment and sentence

on counts one, five, and six are affirmed because, even if the

admission of the CPI was error, it was not fundamental as

to these counts. As to count two, because the only evidence

presented was contained in the CPI, the error must be deemed

fundamental as that conviction could not have been obtained

without it. Thus, Appellant's judgment and sentence as to

count two is reversed.

II. Ineffective Assistance of Counsel

be sentenced either to death or life in prison without the

possibility of parole.

§§ 775.082(1)(a),

794.011(2)(a),

Fla. Stat. (2017). However, the Supreme Court has declared

that a defendant cannot be sentenced to death for a sexual

battery or the crime of rape of a child, leaving life in prison

as the only possible sentence. See

Kennedy v. Louisiana,

554 U.S. 407, 413, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008);

Buford v. State, 403 So. 2d 943, 954 (Fla. 1981).

Appellant reasons that because section 913.10 requires

a twelve-person jury in all “capital cases,” and because

section 794.011(2)(a) labels Appellant's crime as a “capital

felony,” it is the clear intent of the Legislature that his

crime be tried by a twelve-person jury. That said, Appellant

acknowledges that the Florida Supreme Court has previously

rejected this argument. See

State v. Hogan, 451 So. 2d

844, 845 (Fla. 1984). In

Hogan, the court interpreted the

term “capital case” to mean “one where death is a possible

penalty.” Id. at 845. Therefore, even though sexual battery

of a child under twelve is labelled a “capital felony,” it is not

a “capital case” under section 913.10 by virtue of

Buford

[12] [13] [14] Appellant next argues that his trial counsel

and

Kennedy. See

id. Because capital sexual battery

acted ineffectively in failing to specifically object to the

is not a capital case under section 913.10, a six-person jury

CPI on confrontation grounds. Ineffectiveness claims are

rarely cognizable on direct appeal. *786 Sims v. State,

is required. See

Id. at 845–46. Accordingly, we affirm

260 So. 3d 509, 512 (Fla. 1st DCA 2018). Such claims

Appellant's third issue.

are only appropriate outside of a postconviction motion

when “the appellant demonstrates ineffectiveness on the

[16] The Florida Supreme Court possesses discretionary

face of the record, ‘indisputable prejudice,’ and the lack of

jurisdiction regarding questions of great public importance

any conceivable tactical explanation for counsel's action.”

passed to it by certification from a district court. See Fla.

Id. (citing Morales v. State, 170 So. 3d 63, 67 (Fla. 1st

R. App. P. 9.030(a)(2)(A)(v). Appellant cites our respected

DCA 2015)). We disagree with Appellant that his ineffective

colleague's concurring opinion in Lessard v. State in support

assistance claim is plain on the face of the record. Thus, it is

of his argument that the jury question is one of great public

not appropriately brought in his direct appeal and must instead

importance which this Court should certify. 232 So. 3d 13

be brought in a postconviction motion.

(Fla. 1st DCA 2017) (Makar J., concurring) (questioning

III. Jury Empanelment

[15] For his final issue, Appellant argues that the empaneling

of a six-person jury for his trial was erroneous. Appellant

is correct that Florida law requires a twelve-person jury for

all “capital cases” while requiring six for “all other criminal

cases.” 2 § 913.10, Fla. Stat. (2017). Furthermore, a person

eighteen or older who commits a sexual battery upon a person

less than twelve has committed a “capital felony” and may

the decision in

Williams v. Florida, 399 U.S. 78, 90

S.Ct. 1893, 26 L.Ed.2d 446 (1970), which upheld Florida's

use of six-member juries in all non-capital cases, based on

current research and evidence). Although the subject matter

is related, the legal issue examined in Lessard and the issue

here are different. The propriety of Florida's general use of

six-person juries is a fair question for debate. It *787 is

a legislative question, and, as explained in Judge Makar's

Lessard concurrence, it is a constitutional issue.

Phillips v. State, 316 So.3d 779 (2021)

46 Fla. L. Weekly D933

Hogan centered—as does this case—on the statutory

interpretation of the phrase “capital cases” in section 913.10.

Hogan’s resolution of the issue was straightforward

and consistent with previous supreme court precedent.

Hogan's interpretation of the language in section 913.10

is not outlandish or controversial, and that interpretation is

an entirely separate issue from the questions now raised

regarding the Florida Legislature's decision to use sixperson juries in any non-capital case (and regarding the U.S.

Supreme Court's decision to affirm that choice under the U.S.

Constitution). Thus, there is no indication that any current reinterpretation of said language would yield a result different

from Hogan’s. That said, we decline Appellant's request to

certify any question to the supreme court.

IV. Conclusion

Appellant's convictions are affirmed regarding counts one,

five, and six. However, we agree with Appellant that

his conviction on count two must be reversed because

the violation of his right to confrontation constituted a

fundamental error. The case is remanded for a retrial on count

two, should the State choose to try him a second time.

The foregoing considered, we AFFIRM in part, REVERSE in

part, and REMAND for further proceedings consistent with

this opinion.

––– U.S. ––––, 140 S. Ct. 1390, 206 L.Ed.2d 583 (2020)

(abrogating

Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct.

1628, 32 L.Ed.2d 184 (1972) and

Johnson v. Louisiana,

406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972)). Justice

Gorsuch stated:

There can be no question either that the Sixth Amendment's

unanimity requirement applies to state and federal criminal

trials equally. This Court has long explained that the Sixth

Amendment right to a jury trial is “fundamental to the

American scheme of justice” and incorporated against

the States under the Fourteenth Amendment. This Court

has long explained, too, that incorporated provisions of

the Bill of Rights bear the same content when asserted

against States as they do when asserted against the federal

government. So if the Sixth Amendment's right to a jury

trial requires a unanimous verdict to support a conviction

in federal court, it requires no less in state court.

140 S. Ct. at 1397 (footnotes omitted) (emphasis added).

On similar reasoning, if the Sixth Amendment right to jury

trial requires a twelve-member jury to support a criminal

conviction—as is done in every federal court (and almost

every state *788 court) 1 –it isn't much of a stretch to

conclude that “it requires no less in state court.”

Of note, Justice White—who authored the now-abrogated

lead opinions in both

his decision in

Bilbrey, J., concurs; Makar, J., concurs with written opinion.

Makar, J., concurs with opinion.

I fully concur but write to update my observation in Lessard

v. State that reconsideration of the Supreme Court's jury size

decision in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893,

26 L.Ed.2d 446 (1970), which upheld the use of six-member

juries in state court criminal cases, was a “jurisprudential dark

horse.” 232 So. 3d 13, 13 (Fla. 1st DCA 2017) (Makar, J.,

concurring).

Since that observation four years ago, the Supreme Court

issued its decision last year in

Ramos v. Louisiana, which

held that the Sixth Amendment right to jury trial requires

that state court verdicts in criminal cases be unanimous,

overruling its precedents from the early 1970s to the contrary.

in both cases. See

1628 and

Apodaca and

Johnson—relied on

Williams to uphold non-unanimous verdicts

Apodaca, 406 U.S. at 406-411, 92 S.Ct.

Johnson, 406 U.S. at 364, 92 S.Ct. 1620. As in

Williams, his view in

Apodaca was a functional one,

saying that notwithstanding the fact that a twelve-member,

unanimous jury was of ancient origin and “an accepted feature

of the common-law jury by the 18th century,”

406 U.S.

at 407-08, 92 S.Ct. 1628, the functions the jury “performs

in contemporary society” do not require unanimity.

Id. at

407, 92 S.Ct. 1628. In other words, the world has changed

since the time of the Founding, so the jury's “function” can

be reevaluated and a less-than-unanimous standard judicially

announced.

It seems a small step from the demise of the reasoning in

Apodaca and

Johnson as announced in

Ramos to

Phillips v. State, 316 So.3d 779 (2021)

46 Fla. L. Weekly D933

conclude that the reasoning in

Williams, upon which both

decisions relied, is also in jeopardy. For that reason, it is less

of a “jurisprudential dark horse” that the issue of jury size

under the Sixth Amendment may be ripe for re-evaluation. 2

All Citations

316 So.3d 779, 46 Fla. L. Weekly D933

Footnotes

Davis also notes that a conversation which initially begins as non-testimonial has the potential to evolve

into a testimonial interrogation after the purpose of determining the need for emergency assistance has been

achieved.

Davis, 547 U.S. at 828, 126 S.Ct. 2266.

The Florida Constitution requires that the number of jurors be fixed by law. Art. I, § 22, Fla. Const.

Hogan addressed identical statutory language as is at issue here, however, the language was previously

listed under section 910.13, Fla. Stat. See

Hogan, 451 So. 2d at 845.

Lessard, 232 So. 3d at 16–17 (Makar, J., concurring) (“The vast majority of states still choose twelve-person,

unanimous juries to convict in serious criminal cases. Forty-five states require twelve unanimous jurors to

convict for any felony (federal felony trials require twelve jurors); a few states permit six to eight for specified

felonies.” (footnotes omitted). The “only other state [besides Florida] with six-person juries in felony cases

is Connecticut. All other state and federal felony prosecutions require twelve-person juries.” Alisa Smith &

Michael J. Saks, THE CASE FOR OVERTURNING WILLIAMS V. FLORIDA AND THE SIX-PERSON JURY:

HISTORY, LAW, AND EMPIRICAL EVIDENCE, 60 Fla. L. Rev. 441, 443 (2008).

In this case, the appellant questions the ongoing vitality of

benefit from “any decision receding from or overruling

proceeding.

End of Document

Williams, and seeks assurance that he will

Williams,” which is relief that is unavailable in this

APPENDIX

Filing # 127354617 E-Filed 05/24/2021 08:53:40 AM

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT OF FLORIDA

TERRY JONATHAN PHILLIPS,

RECEIVED, 05/24/2021 08:54:31 AM, Clerk, First District Court of Appeal

Appellant/Petitioner,

CASE NO.: 1D19-0470

LT NO: 2017CF1747

STATE OF FLORIDA,

Appellee/Respondent.

NOTICE TO INVOKE DISCRETIONARY JURISDICTION OF FLORIDA

SUPREME COURT

Appellant/Petitioner, through the undersigned counsel and pursuant to

Florida Rule of Appellate Procedure 9.120(a)-(c), hereby invokes the discretionary

jurisdiction of the Florida Supreme Court to review the April 23, 2021, decision of

this Court. Rule 9.030(a)(2)(A)(ii), Florida Rules of Appellate Procedure, allows

the Florida Supreme Court to exercise its discretionary jurisdiction where the

decision of a district court of appeal expressly construes a provision of the federal

constitution. The First District’s decision in the instant case expressly construes a

provision of the Sixth Amendment of the United States Constitution.

CERTIFICATE OF SERVICE

I CERTIFY that a copy of the foregoing has been furnished by electronic

mail

Trisha

Meggs

Pate,

Office

the

Attorney

General,

crimapptlh@myfloridalegal.com, this 24th day of May, 2021.

Respectfully submitted,

/s/ Victor Holder

VICTOR HOLDER

Assistant Public Defender

Florida Bar No. 71985

Leon County Courthouse

301 South Monroe Street, Suite 401

Tallahassee, FL 32301

(850) 606-8500

victor.holder@flpd2.com

ATTORNEY FOR

APPELLANT/PETITIONER

APPENDIX

Filing # 131131788 E-Filed 07/21/2021 02:58:32 PM

E-Copy Received

7/21/21 2:58 pm

Supreme Court of Florida

WEDNESDAY, JULY 21, 2021

CASE NO.: SC21-788

Lower Tribunal No(s).:

1D19-470;

572017CF001747CFAXMX

TERRY JONATHON PHILLIPS

Petitioner(s)

vs.

STATE OF FLORIDA

Respondent(s)

This cause having heretofore been submitted to the Court on

jurisdictional briefs and portions of the record deemed necessary to

reflect jurisdiction under Article V, Section 3(b), Florida

Constitution, and the Court having determined that it should

decline to accept jurisdiction, it is ordered that the petition for

review is denied.

No motion for rehearing will be entertained by the Court. See

Fla. R. App. P. 9.330(d)(2).

POLSTON, LABARGA, LAWSON, COURIEL, and GROSSHANS, JJ.,

concur.

A True Copy

Test:

CASE NO.: SC21-788

Page Two

Served:

TRISHA MEGGS PATE

VICTOR HOLDER

JEFFREY PAUL DESOUSA

HON. DAVID HAROLD RIMMER

HON. KRISTINA SAMUELS, CLERK

HON. DONALD C. SPENCER, CLERK

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.