# Opposition Brief — Glendening v. Florida

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1989
- **Citation:** 492 U.S. 907

## Text

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.

(c) The court shall make
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.

PS

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
related to the unobjected-to videotaped
testimony which was offered by the defense
at trial. Thus, Glendening's competency
challenge is waived. Futhermore, even if
a child might be deemed incompetent to

testify, a finding of reliability of the

child's hearsay statement is not
foreclosed. An illustration of the
distinction between competency and

reliability can be made by examining the
excited utterance exception to the hearsay
rule. Excited utterances have
historically been considered reliable
because it is thought that the declarant,
speaking spontaneously while under’ the
influence of a startling event, has not
had the opportunity to fabricate. Section
90.803(23) requires the trial court to
find that the time, content and

circumstances of the statement provide

=3)j-

sufficient safeguards of reliability.

Where, as here, the child testifies and is
available for cross-examination to test
the accuracy of the out-of-court
statements, the argument in favor of
admitting those statements is even more
compelling.

If the child testifies, there is no

confrontation issue. See, Green v.

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

26 L.Ed.2d 489 (1970). Glendening was
permitted full cross-examination of the
child, he was accompanied by counsel
behind the two-way mirror, he was able to
communicate with counsel and the Florida
Supreme Court determined that his
opportunity to engage in full and
effective cross-examination was not
interfered with by his exclusion. 536

So.2d at 217, citing Kentucky v. Stinson,

482 U.S. 730, 107 S.Ct. 2658, 96 L.Ed.2d

(1987). In this case, the unobjected-to

=32-

introduction of the child's videotaped
testimony satisfied the preliminary
requirement that the child either testify
or be unavailable. 536 So.2d 219.
Furthermore, even if the additional

safeguards of the Roberts “unavailable

declarant scenario" were imposed, _ the
Florida Supreme Court found that’ the

result would be the same. Under Roberts,

if the declarant is unavailable, the
hearsay must be marked with particular
guarantees of trustworthiness in order to
be admissible. 100 S.Ct. at 2538. If
unavailability is established, the hearsay
statements are admissible under 90.803 (23)
only if the time, content, and
circumstances provide sufficient
safeguards of reliability and other
corroborative evidence of the abuse or
offense exists. Thus, Section 90.803 (23)
expands the indicia of reliability and

particularized guarantees of

~33-

trustworthiness of Roberts. In this case,

the evidence of abuse was corroborated by
the medical testimony and Glendening's
jailhouse admissions, which were not
challenged in the Florida Supreme Court.
The national significance of the
problem which Section 90.803(23), Florida
Statutes (1985), was designed to remedy

was set forth by the court in State v.

Myatt, 237 Kan. 17, 697 P.2d 836 (1985):

Often the child victim's out-of-
court statements constitute the
only proof of the crime of
sexual abuse. Witnesses other
than the victim and perpetrator
are rare as people simply do not
molest children in front of
others. « « e Most often the
offender is a relative or close
acquaintance who has the
opportuntity to be alone with
the child. - « « Depending on
the type of sexual contact,
corroborating physical evidence
may be absent or inconclusive.
- « « The child may be unable to
testify at trial due to fading
memory, retraction of earlier
statements due to guilt or fear,
tender age, or inability to
appreciate the proceedings in
which he or she is a
participant. Therefore, these

= 34-

hearsay statements are usually
necessary to the proceedings as
the only probative evidence
available.

Federal courts examine the existence
of $$ corroborating physical and other
evidence in determining the reliability of
hearsay statements of child sexual abuse
victims pursuant to Rule 803(24), Federal
Rules of Evidence (1987). See also United

States v. Dorian, 803 F.2d 1439 (8th Cir.

1986), E. Cleary, McCormick on Evidence,

§§324.1, at 908-09 (3d Ed. 1984). Rule
803(24), Fed.R.Evid., is the “residual
hearsay exception" which is often employed
in federal child sex abuse prosecutions in
admitting the hearsay statements of the
child victim when other hearsay exceptions
are inapplicable, and is the _ federal
equivalent of Section 90.803(23), Florida
Statutes, in this respect. The federal
rule speaks to "circumstantial guarantees

of trustworthiness" and the use of

~35—

corroborating evidence to determine
reliability is widely recognized.

Commentators agree that:

Establishing the reliabilty
of the hearsay statements of a
child victim of sexual abuse is
best accomplished through
consideration of the totality of
the circumstances.
Circumstantial indicia of
reliability has been accepted in
the federal courts as a "“catch- 3
all" basis for admission of
hearsay evidence which does not
fall within the parameters of a
traditional hearsay exception.

Note, Recent Decision: Commonwealth v.

Haber, 25 Duquesne L. Rev. 532 (1986).
It is clear that the trial court, the

Second District Court of Appeal, and the

Supreme Court of Florida correctly applied

-36-

§90.803(23) and the principles of Ohio v.

Roberts in determining the admissibility

of the child's hearsay statements and no
conflict exists to warrant the exercise of

this Court's discretionary jurisdiction. 2

2 This court has_ already denied
certiorari to the petitioner in Cook v.

Florida, 8.8. » 109 8.Cet. 1542,
L.Ed.2d , (No. 88-6267, Mar. 20, 1989),
and Roark v. State, (No. 88-6862, cert.
denied May 15, 1989). In Cook, the
petitioner raised Coy as grounds’ for
taking jurisdiction to determine’ the
validity of the child abuse victim hearsay
rule, Section 90.803(23), Florida Statutes
(1987). In Roark, the petitioner
challenged the constitutionality of
section 92.53, Florida Statutes (1985),
which authorizes, subsequent to motion,
hearing, and a finding that there is
substantial likelihood that a victim or
witness under age 16 would suffer at least
moderate emotional or mental harm, the
videotaping of the testimony of a child
victim or witness in sexual or child abuse
cases. A petition for certiorari is
pending in the case of Perez v. Florida,
U.S.S.Ct. ~#88-7208, docketed March 31,
1989. (Corrected filing made May 31,
1989). In Perez, petitioner is raising a
Sixth Amendment confrontation challenge to
the constitutionality of section
90.803(23), Florida's child abuse victim
hearsay rule.

-37-

III. The application of the child

abuse hearsay exception did not violate

the Ex Post Facto Clause.

Glendening contends that the Florida
Supreme Court's determination that the
application of the child abuse hearsay
exception did not violate the

constitutional prohibition against ex post

facto laws is in conflict with this
Court's prior decisions.

In finding no ex post facto

violation, the Florida Supreme Court
relied exclusively upon the precedent from
this Court and noted that the proscription
against laws which effect the legal rules
of evidence or receive less, or different,
testimony in order to convict the offender
has been construed as prohibiting those
laws which " ‘change the ingredients of
the offense or the ultimate facts
necessary to establish guilt.'" 536 So.2d

at 215 (Pet. App. A 16), citing Miller v.

- 38-

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

2453, 96 L.Ed.2d 351 (1987) (quoting Hopt

v. Utah, 110 U.S. 574, 590, 4 S.Ct. 202,

210, 28 L.Ed.2d 262 (1884)). Changes in
the admission of evidence have been held
to be procedural. The state court below
applied a long-respected doctrine from
this court and that doctrine has
successfully withstood the test of time.

In Dobbert v. Florida, 432 U.S. 282,

97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), this
Court rejected a criminal defendant's ex

post facto claim and relied, in part, on

two prior Supreme Court decisions in which
changes in the admission of evidence were

found to be procedural, Hopt v. Utah, 110

U.S. 574, 4 S.Ct. 202, 28 L.Ed.2d (1884)

and Thompson v. Missouri, 171 U.S. 380, 18

S.Ct. 922, 43 L.Ed. 204 (1898). In Hopt,

this court stated:

"[aJny statutory alteration of
the legal rules of evidence
which ° ° ° only removes

-39-

existing restrictions upon the
competency of certain classes of
persons as witnesses, relate to
modes of procedure only" and
"are not ex post facto in their
application to prosecution for
crimes committed prior to their
passage." 1100U.S. at 589, 590,
4 S.Ct. at 209-10.

Applying the same rationale which
resulted in this Court's determination
that the evidentiary statutes in Hopt and

Thompson were _ procedural, the Florida

Supreme Court concluded:

As in Hopt, "“"[t]he crime for
which the present defendant was
indicted, the punishment
prescribed therefor, and_ the
quantity of the degree of proof
necessary to establish his
guilt, all remained unaffected
by" the enactment of section
90.803(23). 110 U.S. at 589-90,
4 s.Ct. at 209-10. As in
Thompson, section 90.803 (23)
"left unimpaired the right of
the jury to determine’ the
sufficiency or effect of the
evidence declared to be
admissible, and did not disturb
the fundamental rule that the
state. . . must overcome the

-49-

presumption of his’ innocence,
and establish his guilt beyond a
reasonable doubt." 171 U.S. at
387, 18 S.Ct. at 924.

(Pet.App.A-16-17).

The application of the child abuse
hearsay exception did not punish an act
which was innocent when committed, it did
not increase any penalty, it did not
deprive the defendant of any previously-
available defense, and it did not change
the quantity or degree of proof necessary
to establish the defendant's guilt. As in

Thompson, the amendment to the state's

evidence code was merely procedural and

did not violate the ex post’ facto

clause. See Dobbert v. Florida, 432 U.S.

at 293, 97 S.Ct. at 2298. The Florida
Supreme Court's analysis was conducted in
accordance with long-established
principles established by this Court and
Glendening has not demonstrated any

misapplication of this Court's precedent.

=4)]-

CONCLUSION

For the foregoing reasons, the
Petition for Writ of Certiorari to the
Supreme Court of Florida should be denied.

Respectfully submitted,

ROBERT A. BUTTERWORTH
ATTORNEY GENERAL

THE CAPITOL
TALLAHASSEE, FLORIDA
32399-1050

(904) 487-1963

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

-42-

88-1803

IN THE
SUPREME COURT OF THE UNITED STATES
October Term 1988

DAVID EDWARD GLENDENING,
Petitioner,
Vv.
STATE OF FLORIDA,

Respondent.

CERTIFICATE OF SERVICE

I, Peggy A. Quince, a member of the
Bar of this Court, hereby certify that on
this __—sc daayy:«C of , 1989, three (3)
copies of the BRIEF OF RESPONDENT IN
OPPOSITION TO PETITION FOR WRIT OF
CERTIORARI TO THE SUPREME COURT OF

FLORIDA, in the above-entitied case were

~43-

mailed, first class postage prepaid to
STUART C. MARKMAN, ESQUIRE, 707 N.
Franklin Street, Tenth Floor, P.O. Box:
3356, Tampa, Florida 33601. I further
certify that all parties to be served have

been served.

Respectfully submitted,

ROBERT A. BUTTERWORTH
ATTORNEY GENERAL

PEGGY A. QUINCE

Assistant Attorney General
Counsel of Record

Member of the

Bar of this Court

DEPARTMENT OF LEGAL AFFAIRS
1313 Tampa Street, Suite 804
Park Trammell Building
Tampa, Florida 33602

(813) 272-2670

-44-

APPENDIX

-45-

Fla. Stat. §

92.53 Sexual abuse or child abuse
case; videotaping of testimony of victim
or witness under age 16.

(1) On motion and hearing in camera
and a finding that there is a substantial
likelihood that a victim or witness who is
under the age of 16 would suffer at least
moderate emotional or mental harm if he
were required to testify in open court or
that such victim or witness is otherwise
unavailable as defined in §90.804(1), the
trial court may order the videotaping of
the testimony of the victim or witness in
a sexual abuse case or child abuse case,
whether civil or criminal in nature, which
videotaped testimony is to be utilized at
trial in lieu of trial testimony in open
court.

(2) The motion may be filed by:

(a) The victim or witness, or the
victim's or witness" attorney, parent,
legal guardian, or guardian ad litem;

(b) A trial judge on his own motion.

(c) Any party in a civil proceeding;
Or

(3) The judge shall preside, or
shall appoint a special master to preside,
at the videotaping unless the following
conditions are met:

(a) The child is represented by a
guardian ad litem or counsel;

(b) The representative of the victim
Or witness and the counsel for each party
stipulate that the requirement for the
presence of the judge or special master
may be waived; and

(c) The court finds at a hearing on
the motion that the presence of a judge or
special master is not necessary to protect
the victim or witness.

(4) The defendant and the
defendant's counsel shall be present at
the videotaping, unless the defendant has
waived this right. The court may require
the defendant to view the testimony from
outside the presence of the child by means
of a two-way mirror or another similar
method that will ensure that the defendant
can observe and hear the testimony of the
child in person, but that the child cannot
hear or see the defendant. The defendant
and the attorney for the defendant may
communicate by any appropriate private
method.

(5) Any party, or the court on its
own motion, may request the aid of an
interpreter, as provided in §90.606, to
aid the parties in formulating methods of
questioning the child and in interpreting
the answers of the child throughout
proceedings conducted under this section.

(6) The motion referred to _ in
subsection (1) may be made at any time
with reasonable notice to each party to
the cause, and videotaping of testimony

A-2

may be made any time after the court
grants the - motion. The videotaped
testimony shall be admissible as evidence
in the trial of the cause; however, such
testimony shall not be admissible in any
trial or proceeding in which such witness
testified by use of closed’ circuit
television pusuant to §92.54.

(7) The court shall make specific
findings of fact, on the record, as to the
basis for its ruling under this section.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1315%3A2. Public record. Not legal advice.