Opposition Brief — Glendening v. Florida

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Supreme Court, '.S.

iit 2 ee

% JUN § 1989

JOSEPH F. SPANIOL, JR.

CLERK

No. 88-1803

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1988

DAVID EDWARD GLENDENING,

Petitioner,

Vv.

STATE OF FLORIDA

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

BRIEF OF RESPONDENT IN OPPOSITION

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

PEGGY A. QUINCE

Counsel of Record

KATHERINE V. BLANCO

Assistant Attorneys General

1313 Tampa Street, Suite 804

Park Trammell Building

Tampa, Florida 33602

(813) 272-2670

ATTORNEYS FOR RESPONDENT

JUNE, 1989

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QUESTIONS PRESENTED

Petitioner presents the following

questions (Pet. i):

I. Does using a two-way mirror’ to

prevent the complaining witness from

seeing or hearing the petitioner,

over objection and without an

individualized showing of necessity,

conflict with Coy v. Iowa and

thereby violate the petitioner's

sixth amendment confrontation right?

Ii. Does admitting over objection the

repudiated hearsay statements of a

three and one-half year old

complaining witness who did not

understand the difference between

telling the truth and telling a lie

conflict with Ohio v. Roberts and

thereby violate the petitioner's

sixth amendment confrontation right?

III. Does applying Florida's new

statutory child abuse hearsay

exception to an offense occurring

before its effective date to allow

otherwise inadmissible hearsay into

evidence on the theory that

unconfronted videotaped testimony is

constitutionally equivalent to live,

confronted testimony at trial

substantially diminish the

constitutional right to

confrontation in violation of the

prohibition against ex post facto

laws?

TABLE OF CONTENTS

PAGE NO.

QUESTIONS PRESENTED. .wccccccccccccsescecseck

TABLE OF CONTENTS ..ccccccccccccsccccccscccchi

TABLE OF CITATIONS... cccccccccccccccceeeiV

OPINIONS BELOW... ccccccccccccccccccccceel

JURISDICTION. .cccccscccvcccccccccscccccccee

STATUTES AND CONSTITUTIONAL

PROVISIONS BUVUeU ec cee eb enes bee eneenceeee

STATEMENT OF THE CASE. eeeeeee0ee8ee8e8e028808084064 5

STATEMENT OF THE FACTS... ccccccccccccccee

REASONS FOR DENYING THE WRIT. @eeeee9e72e8es#+e 22

I. A.The trial court's case-specific

finding of necessity authorizing

the videotaping of the child-

victim's testimony and the

unobjected-to admission of the

videotaped tesimony at trial did

not violate the Confrontation

Clause of the Sixth Amendment as

interpreted in Coy v. Iowa.

B. There was no Confrontation Clause

violation; but, even if there was

an error, it was harmless in this

case.

II. The application of section

90.803(23), Florida Statutes

(1985) to determine the

wkiw

admissibility of the child's out-

of-court statements did not

conflict with Ohio v. Roberts.

Iti. The application of the child abuse

hearsay exception did not violate

the Ex Post Facto Clause.

CONCLUSION. wccccccccccccccccccccccccccecs 42

CERTIFICATE OF SERVICE... ccccccccccccecs 43

APPENDIX

Pia. Stat. $92.53 (1967)... A-1

-lii-

TABLE OF CITATIONS

PAGE NO.

Chapman v. California,

386 U.S. 18, 87 S.Ct. 824,

17 LeBE.24 7O5 (1967) ccccccsccosesevcece 26

Coy v. Iowa,

U.S- ’ 108 BeGte 2798,

101 L.EBG.2d 857 (1988) .ccccccccccvces 6, 23

Dobbert v. Florida,

432 U.S. 282, 97 S.Ct. 2290,

S3 £.8G.20 346 CEST7) wccece cen enee 0239, 41

Glendening v. State,

503 So.2d 335 (Fla. 2d DCA 1987),

aff'd. 536 So.2d 212 (Fla. 1988),

petition for cert. filed,

U.8.L.4. (U.S. May 4, 1989)

ie, BOoTRUS) co cccascerccesececsesdovcescl

Glendening v. State,

536 So.2d 212 (Fla. 1988)

petition for cert. filed

U.S.L.W.

(U.S. May 4, 198 989) (No. 88-1803) ...Passim

Green v. California,

399 U.S. 149, 90 S.Ct. 1930,

26 cB. BR SES CIOTE) cc ccc cecsseeseccees 3d

Hopt v. Utah,

110 U.S. 574, 590, 4 S.Ct.

202, 210, 28 L.Ed.2d 262 (1884).....39, 40

-iv-

Kentucky v. Stinson,

482 U.S. 730, 107 S.Ct. 2658,

96 L.Ed.2d (1987)... cece eee eeceecees 22-32

Miller v. Florida,

482 U.S. 423, 107 S.Ct. 2446,

2453 96 L.Ed.2d 351 (1987)........... 38-39

Ohio v. Roberts,

448 U.S. 56, 100 S.Ct. 2531,

65 L.Ed.2d 597 (1980).....7, 28-29, 33-34,

State v. Myatt,

237 GOR. 17, O97 P.28 O36 (1985) ..cceeee38

Thompson v. Missouri,

L7i U.8e Seee LB B.Ct. 922,

toe Ss & et | errrrTerererrrrrres >.

United States v. Dorian,

Gs Wswe SSeS Cee Cate ADEE) cc ccccccceedd

OTHER AUTHORITIES

§794.011(2), Fla. Stat.

(1985) wc cccccccccccccvcccescccccccccesecs 5

§90.803 (23) (a) l Pi@s BERR. CAPES) acesecekl

§90.803(23), Fla. Stat.

(1965) wcsen o00eeun Ze 6e 10, iby 3hy 334 37

§92.53, Florida Statutes (1985)...4, 7, 22

28 U.8.Ce §1257 (3) eeeeeev eee eeeeeevee eee eee 2

McCormick on Evidence, §§324.l,

(3d Ed. 1986) . cecceeneenteaeees seb eeeeeeae

Note, Recent Decision: Commonwealth

v. Haber, 25 Duquesne L. Rev. 532

(1986) .cccccecus tee b eee eee eee eeeeeaeee

Rule 803(24), Fed.R.Evid (1987)......... 35

ayia

No. 88-1803

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1988

DAVID EDWARD GLENDENING,

Petitioner,

Vv.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

BRIEF OF RESPONDENT IN OPPOSITION

OPINIONS BELOW

The decision of the Supreme Court of

Florida is reported in Glendening v.

State, 536 So. 2d 212 (Fla. 1988),

(Pet.App. A 11-26). The decision of the

District Court of Appeal of Florida,

Second District is reported as Glendening

v. State, 503 So.2d 335 (Fla. 2d DCA

1987) (Pet.App.Al-10).

JURISDICTIONAL STATEMENT

This Court has jurisdiction pursuant

to 28 U.S.C. Section 1257(3).

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

The statutes and constitutional

provisions involved are the Confrontation

Clause of the Sixth Amendment of the

United States Constitution, which

provides, in part:

IN ALL CRIMINAL PROSECUTIONS,

THE ACCUSED SHALL ENJOY THE

RIGHT. . . TO BE CONFRONTED WITH

THE WITNESSES AGAINST HIM,

Section 90.803(23), Florida Statutes

(1985) provides for the admission into

evidence of the hearsay statements made by

child victims with a physical, mental,

emotional, or developmental age of eleven

or less describing acts of abuse.

a Du

Section 90.803(23) requires that:

1. The court finds in a hearing

conducted outside the presence

of the jury that the time,

content, and circumstances of

the statement provide sufficient

safeguards of reliability. In

making its determination, the

court may consider the mental

and physical age and maturity of

the child, the nature and

duration of the abuse or

offense, the relationship of the

child to the offender, the

reliability of the assertion,

the reliability of the child

victim, and any other factor

deemed appropriate; and

2. The child either:

a. Testifies; or

b. Is unavailable as a

witness, provided that

there is other

corroborative evidence of

the abuse or offense.

Unavailability shall

include a finding by the

court that the child's

participation in the

trial or proceeding would

result in a substantial

likelihood of severe

emotional or mental harm,

in addition to findings

pursuant to §90.804(1).

(b) In a criminal action,

the defendant shall be notified

no later than 10 days’ before

trial that a statement which

qualifies as a hearsay exception

pursuant to this subsection will

be offered as evidence at

trial. The notice shall include

a written statement of the

content of the child's

statement, the time at which the

statement was made, the

circumstances surrounding’- the

statement which indicate its

reliability, and such other

particulars aS necessary to

provide full disclosure of the

statement.

specific findings of fact, on

the record, as to the basis for

its ruling under this

subsection.

Section 92.53, Florida Statutes

(1985) authorizes, subsequent to motion,

hearing, and a finding by the trial court

of substantial likelihood of at least

moderate emotional or mental harm, the

videotaping of testimony of a child victim

or witness in sexual or child abuse cases

(Pet. App. A 27-28; Resp. App. Al-3).

-4-

—_______ Ee

STATEMENT OF THE CASE

On July 26, 1985, Petitioner, David

Glendening ("Glendening”"), was charged by

information with sexual battery upon a

child eleven years of age or younger, in

violation of §794.011(2), Florida Statutes

(1985). The acts upon which the charge

was based were alleged to have occurred

between September 1, 1984 and June 24,

1985 and the victim was Glendening's

three-and-one-half-year-old daughter (the

"child"). (Pet. App. A-14).

Glendening was found guilty of the

charged offense in the Circuit Court of

the Twelfth Judicial Circuit, Sarasota

County, Florida; and on direct appeal, the

District Court of Appeal, Second District,

affirmed Glendening's conviction and

sentence, rejecting his arguments that the

trial court erred in admitting the out-of-

court statements made by the child victim

under Section 90.803 (23), Florida

Statutes. (Pet.App.A-1-10). The Florida

Supreme Court accepted review of

Glendening v. State 503 So.2d 335 (Fla. 2d

DCA 1987), in which the District Court

expressly declared valid Section

90.803(23), Florida Statutes (1985).

(Pet.App.A-14). The Florida Supreme Court

approved the decision of the District

Court and affirmed Glendening's

conviction. (Pet.App.A-11-26, 536 So.2d

212 (Fla. 1988). In so doing, the Florida

Supreme Court ruled, inter alia, (i) that

the application of §90.803(23) did not

violate the Ex Post Facto Clause, ({ii)

allowing the child's testimony to be

videotaped was based on a case-specific

finding of necessity, unlike the scenario

presented in Coy v. Iowa, U.S. ’

108 S.Ct. 2798, 101 L.Ed.2d 857 (1988),

and, even if the denial of face-to-face

confrontation had been error, any error

would have been harmless in this case; and

(iii) even if the additional safeguards of

Ohio v. Roberts, 448 U.S. 56, 100 S.Ct.

2531, 65 L.Ed.2d 597 (1980), under the

"unavailable declarant" scenario were

applicable, the Roberts standard was

satisfied in this case in which the abuse

was corroborated by medical testimony and

two witnesses who testified that

Glendening admitted to them’ that he

committed the offenses. (Pet. App.A-14-

23).

STATEMENT OF THE FACTS

Prior to trial, the State served a

motion to videotape the child's testimony

for introduction at trial, pursuant to

section 92.53, Florida Statutes (1985)

(Pet. App. A-6). The state presented

evidence on the motion from the child's

mother, the child's guardian ad litem, who

spent approximately 20 days with the

child, a pediatrician who had attempted to

examine the child, and a social worker who

worked with sexually abused children and

met with the child on nine (9) occasions

prior to the hearing. (R. 140-148, 256-

286, R. 276). Based on the evidence

presented at the hearing, the trial court

found that there was a_— substantial

likelihood that the child would suffer at

least moderate emotional or mental harm if

she were required to testify in open court

in the presence of Glendening, granted the

state's motion to videotape her testimony,

and ruled that the defense would be

entitled to interview the child and have

their psychological expert observe the

interview. (R. 286, 295). The trial

court ruled that Glendening would be

excluded from the presence of the child

during the videotaping after finding "that

the evidence that's been presented to the

Court does indicate that there is a great

deal of fear on the part of the child of

the father and his presence." (R. 556)

Glendening viewed the videotaping session

via a two-way mirror (Pet.App.A-6).

The child's videotaped testimony was

taken before the trial court with

participation by both attorneys.

(Pet.App.A-9). The trial court conducted a

preliminary voir dire of the child; and,

though she was unable to explain the

difference between the truth and a lie,

the trial court concluded that the child

was competent to testify because she

showed an above average intelligence for a

three year-old and was aware of her

surroundings, attributing her inability to

explain the difference between a truth and

a lie to the inartful questioning by the

court and prosecutor. (Pet. App. A-6).

During the videotaped testimony, the child

did not implicate Glendening in any

misconduct. (Pet. App. A-6). At trial,

Glendening did not object to the

introduction of the child's videotaped

testimony and he caused it to be replayed

during his own case. (Pet. App.A-6)

Glendening did not challenge the

admissibility of the videotape on direct

appeal in the Second District Court of

Appeal. (Pet. App. A-6).

In compliance with Section

90.803(23), Florida Statues (1985), the

State filed a pretrial notice of intent to

use the hearsay statements of the child at

trial. The state set forth the written

content of the child's statements, the

time at which the statements were made,

and the conditions surrounding the

statements which indicated their

reliability. (R. 589-601).

Section 90.803(23) provides for the

admission of hearsay statements of child

sexual abuse victims in child sexual

battery prosecutions if, inter alia, (1)

-10-

there are no indications of lack of

trustworthiness in the reporting source,

(2) the court finds sufficient safeguards

of reliability of the hearsay, and (3) the

child (a) testifies or (b) is unavailable

as a witness, provided there is sufficient

corroborative evidence. The trial court

observed that it could not rule upon the

admissibility of the statements without

actually hearing the witness' testimony

concerning the circumstances under which

the child's statements were made; and

therefore, the trial court's ruling on the

admissibility of hearsay testimony,

pursuant to §90.803(23), was made at

Glendening's trial.

The State presented evidence at trial

that on June 23, or 24, 1985, the child

came out of the bathroom and showed her

mother that something red and about the

size of a golf ball was coming down from

inside of her. (R. 1336). The next day,

“i ji-

the child's mother, Dee, took her to Dr.

Meyer, a pediatrician. (R. 1337-1338).

The child was very fearful, she kicked,

screamed, tried to jump off the examining

table and cried hysterically. Dr. Meyer

was unable to examine her. (R. 1349,

1421). Dr. Meyer referred the child to a

female gynecologist, Dr. Linda Boczar.

(R. 1349; 1422). Dee took the child

Straight from Dr. Meyer's office to Dr.

Boczar's office. (R. 1363).

Dee and Glendening were separated

from March 1984 until September of 1984.

(R. 1335). When Glendening moved back

home, Dee noticed changes in the child's

behavior. (R. 1338). Glendening often

took her out alone; sometimes, she would

protest and ask that her younger sister

come along (R. 1339). On many occasions,

the child would be crying when_- she

returned home. (R. 1339). Dee

questioned Glendening about where he took

o} d=

the child, but she never got a straight

answer. (R. 1343, 1345). Though the

child was potty trained, after Glendening

moved back home, the child began

regressing; she had accidents and insisted

on wearing a diaper. (R. 1342). The

child also began having trouble sleeping

at night. (R. 1343).

When Dee Glendening brought the child

to Dr. Boczar on June 25, she would not

let Dr. Boczar examine her. (R. 1450).

Dr. Boczar recommended that the child be

admitted to the hospital and put under

anesthesia before doing the examination.

(R. 1452). The next day, Dee took the

child to the hospital to be examined. (R.

1353).

When the child was brought into the

operating room, they walked her around to

get her comfortable with the medical

personnel, and the child kept’ saying,

"don't hurt my butt, don't hurt my bottom,

o} 3-

don't let the man hurt me, not the man,

not the man" (R. 1460, 1490). At one

point, when Dr. Boczar asked the child who

hurt her bottom, the child replied,

"daddy" (Rs 1462). At trial, defense

counsel stated that he had no objection to

Dr. Boczar stating what the child told

her. (Pet.App.A-6, R. 1461).

The examination of the child revealed

a normal vagina (R. 1463). However, Dr.

Boczar was able to separate her fingers in

the child's rectum four centimeters (R.

1463, 1465). Dr. Boczar's examination was

consistent with penetration of the rectum

one time forcefully or repeatedly and very

gently (R. 1475). According to Dr.

Boczar, the child had avery laxed

sphincter, like those found in women who

submit to anal intercourse (R. 1475).

Dr. Boczar stated that in her opinion, to

a reasonable degree of medical certainty,

alge

the child had been sexually abused (R.

1523). Dr. Boczar could not state that

the child's anus had been penetrated by a

penis (R. 1523). The child remained in

the hospital overnight and when she was

discharged from the hosptal, Dee contacted

the sheriff's department. (R. 1355).

Rebecca Winkel, a case coordinator

for the Child Protection Team in Sarasota

County, was recognized by the trial court

as an expert in the area of interviewing

children, specifically in the area of

sexual abuse (R. 1552-1553).

Winkel met the child on June 27,

1985, for the purpose of conducting an

anatomical doll _ interview (R. 1553).

Winkel did not discuss the case with Dee

Glendening prior to the interview with the

child. (R. 1554). When the child was

asked if anyone had touched her butt, she

responded that daddy did, and she named

him David (R. 1561). The child said he

=] $=

touched her butt with his “pee pee” (R.

1561). The child answered yes to the

questions whether he put his “pee pee"

inside her butt and whether it hurt (R.

1561-1562). Winkel re-enacted for the

jury the child's demonstration of what she

meant by "daddy hurt my butt" (R.

1562). Winkel also showed the jury charts

that the child had marked to show where he

hurt her (R. 1564-1566). Winkel testified

that in her opinion, based upon her

_ interview with the child, she had been

sexually abused by her father (R. 1571).

Except for an initial objection on the

grounds of corpus delicti, the defense did

not object to Winkel's testimony on the

basis of hearsay until after Winkel

testified and the State sought to

introduce the tape recording of Ms.

Winkel's doll interview with the child.

(R. 1575, Pet.App.A-7).

-16-

Both the trial court and Second

District Court of Appeal concluded that

Glendening's hearsay objection to Ms.

Winkel's testimony was untimely, but in

any event, when the objection was made,

the trial court removed the jury from the

courtroom and made the requisite findings

required by §90.803(23) (a)l. (Pet. App.A-

7-8).

The videotape of the child's

testimony was introduced into evidence and

played during the State's case at trial

without objection. (R. 1632, 1637,

1641). Prior to playing the videotape,

the trial court instructed the jury to

consider and give the same weight to the

child's videotaped testimony as if she

testified in court. (R. 1637).

Ruth Lynn Shapiro, a social worker

from the Suncoast Mental Health Center,

conducted 13 counseling sessions with the

child. Prior to having Shapiro testify

-17-

before the jury, the State proffered her

testimony, seeking to admit statments made

on seven specified occasions. (R. 1760-

1793, R 591). Following the proffer, the

court determined that statements made by

the child during three of the counseling

sessions were admissible. (R 1794-1797).

On July 17, 1985, during a therapy

session involving books and puppets, the

child said her daddy was not touching her

"pee pee" any more (R. 1805). On August

7, 1985, the child stated that daddy hurt

her butt (R. 1806). On November 7, 1985,

during a therapy session involving

anatomically-correct dolls, the child

stated that daddy was a bad boy because he

hurt her (R. 1809). The defense declined

to cross-examine Shapiro. (R. 1812).

Detective Jacqueline Barber from the

Sarasota County Sheriff's Department

responded to a call from the child's

~19-

mother regarding a sexual battery (R.

1644). The following day, Detective

Barber took Glendening to the Sheriff's

Department for questioning (R. 1659).

Glendening smelled of alcohol (R.

1661). He was given his Miranda warnings

and Glendening stated he did not know who

could have done this to the child. (R.

1661). When told that the child had named

him as the perpetrator, Glendening

responded, "I do not believe I could do

that to [the child]. Could I have done

that, when I was out of my mind, could I

have done it?" (R. 1667). Glendening

asked to take a polygraph exam and be

hypnotized and he admitted using cocaine

and said he had a problem with alcohol (R.

1668).

Ralph Fleming, Jr. a prisoner with

eight previous convictions, was

Glendening's cellmate at the Sarasota

County Jail. (R. 1816). Glendening

«1@-

admitted to Fleming that he had molested

his daughter (R. 1818-1819). Glendening

told Fleming he would take the child out

shopping early in the morning and buy her

gifts (R. 1820). Glendening admitted he

did this over a period of months (R.

1820). Glendening used the term "got her”

to mean he had anal intercourse with the

child (R. 1820). Glendening told Fleming

that he would put cocaine on the table and

show the child how to snort it through a

straw; then he would anally molest the

child (R. 1821).

William Flowers was also a prisoner

in the Sarasota County Jail with

Glendening. (R. 1843). Flowers was

present when Glendening made the

statements to Fleming about molesting the

child. (R. 1865). Flowers essentially

corroborated Fleming's testimony (R. 1846-

1847).

=20-

On June 27, 1985, when the child was

at the sheriff's department, she picked up

a straw that was near a coffee pot, got

upon the table, put the straw in her

nostril, leaned over and snorted in a line

along the table (R. 1836). Detective

Barber asked the child what she was doing

and the child replied “sneaking around"

(R. 1837). When Detective Barber asked

what was missing, the child replied "white

stuff" (R. 1837). When Detective Barber

was recalled by the state for the purpose

of testifying concerning the’ child's

spontaneous demonstration with the straw

and response to the detective's inquiry,

the defense objected solely on the grounds

of relevancy.

a2}~

REASONS FOR DENYING THE WRIT

The decision below was correct.

I. A. The trial court's case-specific

finding of necessity authorizing the

videotaping of the child-victim's

testimony and the unobjected-to admission

of the videotaped testimony at trial did

not violate the Confrontation Clause of

the Sixth Amendment as interpreted in Coy

v. Iowa.

After finding "that the evidence

that's been presented to the court does

indicate that there is a great deal of

fear on the part of the child of the

father and his presence," the trial court

ruled that the child's testimony would be

videotaped and Glendening would be

required to view the testimony by means of

a two-way mirror. (R. 556). During her

videotaped testimony, the child did not

-23-

implicate Glendening in any misconduct.

Glendening did not object to the admission

of the child's videotaped testimony at

trial, her videotaped testimony was

replayed for the jury during’ the

defendant's case, and Glendening did not

challenge the admissibility of the

videotaped testimony on direct appeal.

(Pet.App.A-6).

Glendening's challenge to the child's

videotaped testimony is now based on his

assertion that the Florida Supreme Court's

decision conflicts with Coy v. Iowa,

U.S. _, 108 S.Ct. 2798, 101 L.Ed.2d 857

(1988). The rationale set forth in Coy

was two-fold: (1) the generalized

presumption of trauma underlying the Iowa

statutory procedure was insufficient to

overcome the right to face-to-face

confrontation; and (2) the trial court had

not made an individualized finding as to

need.

=29<

In its opinion, the Florida Supreme

Court squarely addressed Coy and applied

it to the facts of this particular case.

In contrast to the statute at issue in

Coy, section 92.53 requires an individual

determination for each child witness that

the use of videotaped testimony is

necessary to prevent the child from

suffering emotional or mental harm. The

trial court conducted a hearing on this

issue and, based on the testimony of four

adult witnesses familiar with the child,

concluded that the child would suffer at

least moderate emotional or mental harm if

required to testify in open court in the

presence of Glendening. Thus, contary to

Coy, the present case involved "a case-

specific finding of necessity." 536 So.2d

at 218, citing Coy, 108 S.Ct. at 2805

(O'Connor, J., Concurring). (Pet. App.A-

21).

~2he

B. There was no Confrontation Clause

violation, but, even if there was an.

error, it was harmless in this case.

This is not an appropriate case for

review by this Court for yet another

reason. As Justice Scalia observed in his

majority opinion in Coy Confrontation

Clause violations are subject to a

harmless error analysis:

We have recognized that other

types of violations of the

Confrontation Clause are subject

to that harmless error analysis

[error harmless beyond a

reasonable doubt does not

require reversalj, and see no

reason why denial of face-to-

face confrontation should not be

treated the same. An assessment

of harmlessness cannot include

consideration of whether’ the

witness's testimony would have

been unchanged, or the jury's

assessment unaltered, had there

been confrontation; such an

inquiry would obviously involve

pure speculation, and

~25~

harmlessness must therefore be

determined on the basis of the

remaining evidence.

485 U.S. at __—__,_- 108 S.Ct. at, 101

L.Ed.2d at 867 (O'Connor, J. concurring)

The Florida Supreme Court determined

that if the denial of face-to-face

confrontation had been error, any error

would have been harmless in this case.

536 So.2d at 218. This holding was

Supported by a finding that the child's

videotaped testimony did not implicate

Glendening, the defense declined to cross-

examine the child despite the opportunity

to do so, and the exculpatory videotape

was presented to the jury by the defense

at trial. The “harmless error" test of

Chapman v. California, 386 U.S. 18, 87

S.Ct. 824, 17 L.Ed.2d 705 (1967), requires

"the beneficiary of a constitutional error

to prove beyond a reasonable doubt that

the error complained of did not contribute

«26a

to the verdict obtained." Id. at 24, 87

S.Ct. at 828. Applying the harmless error

standard to the unique facts of this case,

the Florida Supreme Court concluded

"([B]lecause the videotaped testimony was

totally exculpatory, the admission of the

testimony unquestionably did not

contribute to the conviction and was

harmless beyond a reasonable doubt." 536

at 218, citation omitted. In applying the

harmless error rule below, the state court

announced no novel application of United

States Supreme Court precedent. No

further review is warranted.

Rts The Application of Section

90.803(23) Florida Statutes to Determine

the Admissibility of the Child's Out-of-

Court Statements Did Not Conflict with

Ohio v. Roberts.

Section 90.803(23), Florida Statutes

(1985) admits the out-of-court statements

of a child victim of sexual abuse

= 2}

describing an act of sexual abuse, or

other offenses involving an _ unlawful

sexual act, performed in the presence of,

with, by or on the declarant child if (1)

the trial court determines that "the time,

content, and circumstances of the

statement provide sufficient safeguards of

reliability;" and (2) the child either (a)

testifies, or (b) is unavailable, and the

abuse is corroborated by other evidence.

In Ohio v. Roberts, 448 U.S. 56, 100

S.Ct. 2531, 65 L.Ed.2d 597 (1980), this

court held that the Confrontation Clause

is satisfied where the declarant whose

out-of-court statement is sought to be

introduced either testifies, or is shown

to be unavailable and the hearsay

statement | bears adequate indicia of

reliability. 448 U.S. at 65. When a

hearsay declarant is not present’ for

cross-examination at trial, hearsay

Statements are admissible only if they

= 29-

bear adequate indicia of reliability and

particularized guarantees of

trustworthiness. Ohio v. Roberts, 448

U.S., at 66, 100 S.Ct., at 2539.

Glendening claims that the child was

not a competent witness because she could

not articulate the difference between

telling the truth and telling a lie and,

armed with this assertion, Glendening

argues that the admission of her out-of-

court statements conflicts with Roberts.

Glendening focuses on selected

passages from the voir dire of the child

in arguing that she was not competent to

testify. The Florida Supreme Court

referred to the defense-cited excerpts

which focused on the child's weakness as a

witness; and found that other portions of

the hearing supported her competency to

testify. (Pet.App.A-23). The role of this

Court is not to engage in a fourth fact-

finding inquiry and proper respect must be

-29-

accorded the state court tribunal,

particularly one that has rendered a

carefully reasoned decision in a unique

factual scenario. Furthermore, the issue

it Although the child did not understand

the specific terms "truth" and “lie," the

trial court specifically stated this was

due to inartful questioning by the court

and the prosecutor (R. 779). The trial

court found the child to be alert and of

above-average intelligence for a 3 year-

old and concluded the child was competent

to testify (R. 779-780).

Not all of the child's statements

during the voir dire examination were

inappropriate. The child knew her name

and where she lives (R. 757). She knew

who she lives with, that she goes to

nursery school, and her parents" names (R.

758). The child said she goes to church

(R. 760). The child said her mother had

never talked to her about telling the

truth and telling lies (R. 761). She

stated she has a dog and a cat (R. 762).

She answered yes when asked if she was

chewing gum and said her mother gave it to

her (R. 762). The child knew what

Christmas was and said she wanted a

Cabbage Patch Doll (R. 763). The child

knew she had to be good to get a Cabbage

Patch Doll (R. 764). The child knew that

if she was told to take a nap at school

and she did not, that would be bad (R.

766). The child knew her colors (R. 766-

767). There is no reason why the

Statements which Glendening selectively

incorporates should be given’ greater

emphasis than the statements which

evidenced her competence.

= 30-

of the child's competency was peculiarly