Ronald Lee Coleman v. State of Florida ( 2020 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-3977
_____________________________
RONALD LEE COLEMAN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Duval County.
Linda F. McCallum, Judge.
September 14, 2020
WINOKUR, J.
Ronald Coleman was found guilty and convicted of two
counts of sexual battery on a person between the ages of 12 and
18. Among the State’s evidence at trial was the testimony of the
victim as well as two witnesses who the victim discussed these
incidents with. Coleman argues that the trial court erred by
failing to make specific factual findings in concluding that the
victim’s hearsay statements were trustworthy and reliable.
However, Coleman did not make this argument in the trial court,
so we affirm. 1
1We affirm without further comment as to Coleman’s other
arguments.
The State filed two notices of its intent to admit child-
hearsay evidence pursuant to section 90.803(23), Florida
Statutes. At a pretrial hearing, two witnesses—a woman who the
victim described as her godmother and a case coordinator with a
child protective team—testified that the victim disclosed
Coleman’s sexual batteries against her to them, and discussed
the circumstances surrounding these conversations. After the
witnesses’ testimony at the pretrial hearing, Coleman referenced
his written motion to exclude this hearsay testimony and added
that the victim was untrustworthy, the circumstances
surrounding the statements did not demonstrate reliability, and
that the victim had a motive to fabricate allegations against him.
The trial court referenced the circumstances surrounding the
first conversation, with the victim’s godmother, found them to
sufficiently indicate reliability under State v. Townsend, 2 and
ruled that it would allow these statements to be admitted. The
trial court stated that it would review the recorded interview
with the child protective coordinator before ruling on that notice.
The trial court then entered an order admitting the recorded-
interview statements, which referenced the factors mentioned in
Townsend and section 90.803(23)(a)1., and briefly summarized
why the statements were sufficiently reliable to be admitted at
trial.
At the trial approximately five months later, the victim and
both hearsay witnesses testified, as well as the victim’s mother, a
nurse practitioner, investigator, and Williams 3 Rule witness who
testified that Coleman similarly raped her years ago when she
was a child. The jury found Coleman guilty as charged.
On appeal, Coleman argues that the trial court failed to
make sufficiently detailed and specific factual findings to support
the admission of child-hearsay statements. See § 90.803(23)(c),
Fla. Stat. (“The court shall make specific findings of fact, on the
2 State v. Townsend, 635 So. 2d 949, 957–58 (Fla. 1994)
(discussing factors that a trial court must and may consider in
determining whether a hearsay statement is reliable).
3 Will. v. State, 110 So. 2d 654 (Fla. 1959).
2
record, as to the basis for its ruling under this subsection.”). 4 This
argument was never placed before the trial court however, and is
unpreserved. In Elwell v. State, 954 So. 2d 104, 109 (Fla. 2d DCA
2007), the defendant argued that the victim’s statements were
unreliable during the pretrial hearing and, prior to appeal, “never
raised any objection concerning the sufficiency of the trial court’s
findings under section 90.803(23).” Because the “trial court was
never placed on notice of any error with respect to its findings
and thus was never given an opportunity to correct the deficiency
in the findings,” the “issue of the sufficiency of the findings was
clearly unpreserved.” Id. We ruled similarly in McCloud v. State,
91 So. 3d 940 (Fla. 1st DCA 2012):
Although the appellant claims that the written order
lacks sufficiently detailed findings, the appellant did not
make that argument in the trial court and did not
otherwise raise any issue then as to the adequacy of the
written findings. Instead, the appellant let the case go to
trial without raising the issue, and after being convicted
he now attempts to interject this issue on appeal. But
because the appellant did not raise the issue in the trial
court, where a claimed deficiency in the written order
could be corrected, the issue has not been preserved for
appeal.
4 See also, e.g., Townsend, 635 So. 2d at 958 (“[T]he trial
judge merely listed each of the statements to be considered and
summarily concluded, without explanation or factual findings,
that the time, content, and circumstances of the statements to be
admitted at trial were sufficient to reflect that the statements
were reliable. This finding is clearly insufficient[.]”); Hopkins v.
State, 632 So. 2d 1372, 1377 (Fla. 1994) (“Mere recitation of the
boilerplate language of the statute, as the trial court did here, is
not sufficient.”); G.H. v. State, 896 So. 2d 833, 835 (Fla. 1st DCA
2005) (holding that “courts must make specific findings of fact, on
the record, regarding the reliability of the statement” under
section 90.803(23),” and “the trial court’s statement: ‘I find
specifically that the statements are reliable and trustworthy, the
testimony I’ve heard in this trial thus far,’ was conclusory and
inadequate”).
3
Id. at 940–41; see also Cowan v. State, 165 So. 3d 58 (Fla. 1st
DCA 2015). 5
Coleman argued pretrial that the victim’s statements to the
two hearsay witnesses were unreliable, and later renewed this
argument and made general objections to hearsay. But Coleman
never asserted that the trial court’s findings were legally
insufficient, which would permit the court to review and correct
its findings if necessary. Therefore, his argument is unpreserved,
and we affirm the judgment and sentence.
AFFIRMED.
M.K. THOMAS, J., concurs with opinion; MAKAR, J., dissents with
opinion.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
5 We reject the dissent’s contention that Hopkins requires a
different result. McCloud relies on Elwell, and Elwell explicitly
distinguishes Hopkins, so we make no claim that Elwell “trumps”
Hopkins. We also reject the suggestion that the preservation
finding was dicta in McCloud. While it is true that the opinion
mentioned in passing that the order contained sufficient findings
to support admission, it obviously affirmed primarily because the
issue was not preserved for review, which is the subject of the
entire opinion. We note also that Cowan applied McCloud on the
same rule of law. Finally, we reject the contention that this issue
is controlled by In Interest of R.L.R., 647 So. 2d 251 (Fla. 1st DCA
1994). To the extent that R.L.R. may conflict with McCloud or
Cowan, we are obligated to follow the more recent decisions. See
R.J. Reynolds Tobacco Co. v. Marotta, 214 So. 3d 590, 604 (Fla.
2017) (holding “where intradistrict conflict exists, the decision
later in time overrules the former as the decisional law of the
district” (citing Little v. State, 206 So. 2d 9, 10 (Fla. 1968))).
4
M.K. THOMAS, J., concurs with opinion.
I agree with the majority opinion. However, I write to
address precedent on the issue of preservation in this context.
This court has consistently applied the precedents of Hopkins v.
State, 632 So. 2d 1372 (Fla. 1994), and State v. Townsend, 635 So.
2d 949 (Fla. 1994), and the subsequent Legislative enactment of
section 924.051(3), Florida Statutes (1996), when determining
preservation for purposes of appeal of claims that an order or
ruling admitting child hearsay testimony is insufficient.
Accordingly, Appellant’s judgment and sentence must be
affirmed. Respectfully, I do not regard Hopkins and Townsend as
establishing preservation for purposes of appeal of sufficiency
challenges under section 90.803(23)(c), Florida Statutes. Instead,
Hopkins and Townsend require an appellate court’s “whole record
review” to determine whether, following a ruling on a defendant’s
objection to the reliability of child hearsay testimony, the
defendant adequately placed the trial court on notice of a
sufficiency challenge under section 90.803(23)(c). Under this
approach, each case turns on its unique factual and procedural
backdrop.
In Hopkins, after a lengthy hearing on the matter, the trial
court orally denied Hopkins’ motion to suppress, and the trial
immediately began. 632 So. 2d at 1376. Thus, no written order
was entered. When the witnesses were called to testify at trial,
Hopkins continued to raise objections to “the admission of the
hearsay statements” and requested that the trial court recognize
a continuing objection. Id. The trial court denied the request. Id.
In reaching its decision, the supreme court focused on whether
sufficient notice was provided to the trial court under the
circumstances. Id. Despite it opining that “it would have been
preferable for defense counsel to object each time the hearsay
testimony was introduced,” the supreme court determined that,
under the facts, “[t]he trial court was put on notice of the
potential error by the pretrial hearing and by defense counsel's
request for a continuing objection during trial.” Id.
Just two months after Hopkins, the supreme court again
addressed preservation of sufficiency challenges under section
90.803(23)(c). See Townsend, 635 So. 2d 949. In Townsend, the
5
trial court failed to provide an explanation or factual findings to
support its conclusion that the child-hearsay statements were
reliable. Id. at 958. However, the supreme court unanimously
declared that an objection to the lack of sufficient findings by the
trial court was necessary for Townsend to raise the issue on
appeal, stating, “It is questionable . . . whether Townsend
properly preserved . . . issues, such as the failure of the trial
judge to make specific factual findings regarding the reliability of
the child's statements.” Id. at 959. Reiterating that “the failure of
a trial judge to make sufficient findings under the statute, in and
of itself, does not constitute fundamental error,” the court turned
to whether Townsend had preserved the sufficiency challenge for
appeal. Id. at 959. The court noted that it reached its conclusion
by considering the “errors as a whole,” and explained as follows:
Consequently, were we not reviewing these errors as a
whole, we might find that some of the errors to which no
objection was made were procedurally barred. When,
however, we consider the errors in this case as a whole,
we must conclude that Townsend was denied the
fundamental right to due process and the right to a fair
trial.
Id. at 959-60 (citations omitted).
In Townsend, the supreme court cited Jones v. State, 610 So.
2d 105, 105–06 (Fla. 3d DCA 1992), which held that a challenge
to the factual findings under section 90.803(23) “should have
been made in more detail” and was “not preserved for appellate
review, because no contemporaneous objection was made to the
sufficiency of the trial court’s findings.” Id. at 959. The supreme
court applied a whole record review, not a quest for specific magic
words, to determine whether the trial court was placed on notice.
Townsend clearly dispelled any interpretation of Hopkins that
the supreme court adopted an automatic preservation rule for
sufficiency challenges once a defendant objects to the reliability of
the child hearsay statements.
In the wake of Townsend, a “whole record review” has been
applied by this Court to determine preservation of subsection
(23)(c) sufficiency challenges. See Mathis v. State, 682 So. 2d 175,
6
178 (Fla. 1st DCA 1996) (concluding that the trial court
understood the defendant’s objection was based on the legal
sufficiency of the court’s findings and ruling that the court had
been put on notice of the potential error under Hopkins); In the
Interest of R.L.R., 647 So. 2d 251 (Fla. 1st DCA 1994) (holding the
issue of sufficiency of findings pursuant to section 90.803(23)
preserved for review because, read in context, objection clearly
put parties and court on notice of its basis).
Two years after Townsend, the Legislature enacted section
924.051(3) as part of the Criminal Appeal Reform Act of 1996.
Subsection (3) incorporated the “whole record review” analysis
and fortified preservation requirements. The statute provides as
follows:
An appeal may not be taken from a judgment or order of
a trial court unless a prejudicial error is alleged and is
properly preserved or, if not properly preserved, would
constitute fundamental error. A judgment or sentence
may be reversed on appeal only when an appellate court
determines after a review of the complete record that
prejudicial error occurred and was properly preserved in
the trial court or, if not properly preserved, would
constitute fundamental error.
§ 924.051(3), Fla. Stat. (emphasis added). The supreme court
later acknowledged that “it is clear from the language of section
924.051(3) that the Legislature intended to condition reversal of a
conviction on the existence of either an error that was preserved
and prejudicial or an unpreserved error that constitutes
fundamental error.” State v. Jefferson, 758 So. 2d 661, 664 (Fla.
2000).
Following enactment of section 924.051, this Court continues
to properly apply its mandates. See Knight v. State, 254 So. 3d
642, 644 (Fla. 1st DCA 2018) (holding appellant did not preserve
any argument on the sufficiency of the trial court order);
Rodriguez v. State, 120 So. 3d 656, 657 (Fla. 1st DCA 2013)
(“Absent a definitive pre-trial ruling, appellant was required to
object to the admission of the child hearsay testimony at trial.”);
McCloud v. State, 91 So. 3d 940, 940–41 (Fla. 1st DCA 2012)
7
(holding appellant did not preserve the issue for appeal as he did
not contest the sufficiency of the findings while in the trial court);
Womack v. State, 855 So. 2d 1236, 1237 (Fla. 1st DCA 2003)
(“[A]ppellant’s general objection, recognized by the trial court as a
continuing objection, preserved the issue for appeal.”).
In Elwell v. State, 954 So. 2d 104 (Fla. 2d DCA 2007), then-
Judge Canady authored an insightful opinion addressing inter-
district conflict regarding preservation of sufficiency challenges.
Artfully, he distinguished the cases in which reliability objections
to child hearsay testimony were raised before the trial court’s
ruling on admissibility from those objections raised after the trial
court’s ruling, id. at 107–08, a critical distinction when applying
the “whole record review” analysis. Then-Judge Canady further
emphasized the context in which the objections were raised—a
request for continuing objection or objections raised immediately
following an oral pronouncement by the trial court but just before
trial began. Id. In Elwell, the Second District declined to adopt a
reading of Hopkins as imposing an automatic preservation rule
for sufficiency challenges upon the raising of a reliability
objection and further distinguished Hopkins as preceding the
adoption of section 924.051, with its “exacting requirements
regarding the preservation of error.” Id.
Our dissenting colleague expresses discomfort with the
majority opinion and this Court’s opinion in In re R.L.R., 647 So.
2d 251 (Fla. 1st DCA 1995). I regard the case as a distinguishable
outlier which does not pose contrary precedent. The setting of
R.L.R. was an adjudicatory hearing on an amended petition for
dependency which alleged that the appellant had sexually abused
his child. Id. at 252. During the hearing, a pediatrician who
examined the child was asked a question potentially eliciting
child hearsay. Id. The appellant objected and questioned the
reliability of the child hearsay under section 90.803(23)(a). Id.
The trial court allowed the testimony to proceed, with a caveat
regarding establishment of a proper predicate for admissibility or
the testimony would not be considered. Id. Following all
testimony, the trial court ruled the testimony admissible. Id.
After the hearing, the trial court issued a written order on
dependency. Id. On appeal, this Court allowed the appellant to
assert a sufficiency challenge under 90.803(23)(c), finding the
8
objections in the context of the record were enough for appellate
preservation and that introduction of the testimony was likely
not harmless error. Id. at 254. Citing Hopkins, this Court did not
apply an automatic preservation rule but, based on the record,
determined the sufficiency challenge was preserved. Id. at 253–
54. Notably, R.L.R. also cites to Townsend—the opinion issued by
the supreme court two months after Hopkins and which clarified
it was not adopting an automatic preservation rule. Id. at 253.
Lastly, the decision in R.L.R. preceded the adoption of section
924.051, which sets forth requirements for preservation.
No party “should be able to argue for reversal on appeal on
grounds that the trial court failed to make a critical factual
finding on the record without first objecting on that basis—and
giving the trial court an opportunity to correct any error at that
time.” Spencer v. State, 238 So. 3d 708, 723 (Fla. 2018) (Lawson,
J., concurring) (citing Elwell, 954 So. 2d 104, with approval).
Here, Coleman failed to place the trial court on notice of any
issue he took with the sufficiency of the ruling. The trial court
conducted a lengthy pre-trial hearing and orally pronounced a
partial denial of his motion and reserved ruling on the
remainder. Coleman raised no objections upon the partial oral
pronouncement. Subsequently, the trial court issued a multi-page
order denying the remainder of Coleman’s motion to suppress
and providing the reasoning. Coleman did not file a motion for
rehearing nor any other pleading challenging the sufficiency of
the order pursuant to 90.803(23)(c). Five months later when the
trial began, Coleman renewed his prior motion as to Williams ∗
rule evidence and a statement of particulars but raised no
objections to the adequacy of the trial court’s ruling. All other
objections raised were identical to those from the motion to
suppress hearing. In fact, at a hearing on Coleman’s motion for
new trial, he “renew[ed] all the grounds that are stated in the
motion,” referring to the original motion to suppress. Accordingly,
the trial court was never placed on notice of any error with
respect to its findings and, thus, was never given an opportunity
to correct any deficiency.
∗
Williams v. State, 110 So. 2d 654 (Fla. 1959).
9
Separate and apart from reliability factors enumerated in
section 90.803(23)(a), subpart (c) requires that “[t]he court shall
make specific findings of fact, on the record, as to the basis for its
ruling under this subsection.” A sufficiency challenge relates not
to the merits of the section 90.803(23)(a) analysis but to the
contents or breadth of the challenged order. Thus, if the initial
objection to admissibility of child hearsay testimony is that of
reliability and such an objection is a necessary precursor to a
trial court’s ruling—how can a pre-order objection to reliability,
without more, be deemed preservation of a challenge to the
contents of an order not yet entered? Automatic preservation in
this context is a hysteron proteron. That is, a logical fallacy that
an objection to reliability of child hearsay statements necessarily
deems any forthcoming order of denial as substantively deficient.
Objections are required to “place[] the trial judge on notice
that error may have been committed, and provide[] him an
opportunity to correct it at an early stage of the proceedings.”
Harrell v. State, 894 So. 2d 935, 940 (Fla. 2005) (quoting Castor v.
State, 365 So. 2d 701, 703 (Fla. 1978)). Coleman did not afford the
trial court the opportunity to correct any alleged errors regarding
the sufficiency of its ruling. Accordingly, a sufficiency challenge
under section 90.803(23)(c), was not preserved for appeal.
MAKAR, J., dissenting.
Ronald Lee Coleman argued pretrial that statements by the
victim to two hearsay witnesses were unreliable and
untrustworthy; he later renewed this argument and made
general objections. In doing so, Coleman’s counsel properly
preserved the claim that the trial court erred in its findings as to
trustworthiness and reliability that were necessary to allow the
child hearsay testimony in this case under section 90.803(23),
Florida Statutes (2020).
The State initially conceded that Coleman preserved his
claim but changed its position after the parties “were directed to
file supplement briefs addressing whether [the section 90.802(23)
issue] was properly preserved” for our consideration.
10
As to preservation, Coleman continues to correctly point out
that a defendant’s objections to the reliability and
trustworthiness of child hearsay evidence necessarily encompass
the sufficiency of findings of reliability and trustworthiness. That
is precisely the holding of our supreme court in Hopkins v. State,
632 So. 2d 1372, 1375 (Fla. 1994). In Hopkins, the defendant
“argue[d] that the trial court failed to make sufficient findings
under section 90.803(23) to admit the out-of-court statements of
the child victim.” Id. at 1376 (footnote omitted). As here, a
detailed pre-trial hearing was held at which the defendant
“objected to the admissibility of the hearsay statements, arguing
that there was no showing of reliability.” Id. On appeal, the
supreme court held that the issue of the sufficiency of the trial
court’s factual findings was preserved because “defense counsel’s
objection to the reliability of the evidence necessarily
encompassed the sufficiency of the judge’s findings as to that
reliability. Counsel was not required to specify each finding of
fact to which he was objecting.” Id. Because Hopkins is directly
on point, it controls the preservation issue in this appeal, ending
the inquiry.
But there is more. On almost identical facts involving a
section 90.803(23) challenge, this Court deemed Hopkins to be
controlling on the preservation issue in this case and also rejected
the argument that specific objections to evidentiary sufficiency
must be made:
Appellant argues that the trial court made
insufficient findings to satisfy the prerequisites to
admissibility of R.R.’s statements set forth in section
90.803(23)(a) 1. and 2.b. and that, therefore, allowing
the testimony regarding those statements constituted
reversible error. Appellees . . . respond that we should
affirm because (1) appellant failed to object to the
sufficiency of the trial court’s findings and, therefore,
the issue has not been preserved for review; and (2)
assuming the issue has been preserved, the trial court’s
findings are sufficient to satisfy the requirements of
section 90.803(23).
11
The outcome of this appeal is controlled by the
recent decision in Hopkins v. State, 632 So. 2d 1372 (Fla.
1994), which . . . requires that we reverse.
In Hopkins, the appellant argued, among other
things, “that the trial court failed to make sufficient
findings under section 90.803(23) to admit the out-of-
court statements of the child victim.” The court agreed.
In doing so, it expressly rejected the first argument
made by appellees here, holding that “defense counsel’s
objection to the reliability of the evidence [in the form of
a hearsay objection] necessarily encompassed the
sufficiency of the judge’s findings as to that reliability.
Counsel was not required to specify each finding of fact
to which he was objecting.” It also held to be legally
insufficient to satisfy the requirement that the trial
court “make specific findings of fact” comments
substantively indistinguishable from those made by the
trial court in this case.
In Interest of R.L.R., 647 So. 2d 251, 253 (Fla. 1st DCA 1994)
(citations omitted). Based on this language, Hopkins and R.L.R.
require that Coleman be heard on his challenge under section
90.803(23). Findings of reliability and trustworthiness are
necessarily based on evidence of those factors, such that an
objection as to reliability and trustworthiness is necessarily one
that encompasses evidentiary sufficiency. As such, Coleman’s
objection necessarily encompassed the sufficiency of the trial
judge’s findings as to both. See Hopkins, 632 So. 2d at 1375;
R.L.R., 647 So. 2d at 253.
Rather than rely on the supreme court’s decision in Hopkins
and this Court’s decision in R.L.R. (which says Hopkins controls),
the majority bases its holding on a Second District case, Elwell v.
State, 954 So. 2d 104, 107 (Fla. 2d DCA 2007), which specifically
disagreed with this Court’s decision in R.L.R., noting that R.L.R.
and two other First District cases 1 were among “decisions of other
1 Womack v. State, 855 So. 2d 1236, 1237 (Fla. 1st DCA 2003)
(holding that a “general objection,” which was deemed a
continuing one, “preserved the issue for appeal.”); Mathis v. State,
12
districts” that “have held that objections or challenges to the
child-hearsay statements made prior to the trial court’s rulings
are sufficient to preserve for appeal the issue of the sufficiency of
the trial court’s findings.”
Rejecting this Court’s approach, the two-judge majority 2 in
Elwell held that Hopkins did not apply because it included, in
part, a confrontation clause issue under section 92.54, Florida
Statutes, which provides that a trial court “may order that the
testimony of the victim or witness be taken outside of the
courtroom and shown by means of closed-circuit television.”
§ 92.54(1), Fla. Stat. (2020). The Elwell majority apparently
believed that Hopkins’s holding as to preservation hinged solely
on the protection of a constitutional right of confrontation where
closed-circuit television is used under section 92.54. It
overlooked, however, that the decision in Hopkins had a second
issue, one involving the same statute in this case, section
90.803(23):
[W]e address a second evidentiary issue raised by
Hopkins. Hopkins argues that the trial court failed to
make sufficient findings under section 90.803(23) to
admit the out-of-court statements of the child victim.
The district court found that “defense counsel’s general
hearsay objections to the testimony were not sufficiently
specific to preserve the issue for appellate review.” We
disagree.
632 So. 2d at 1376 (citations omitted) (footnote omitted)
(emphasis added). As emphasized (and discussed earlier), the
supreme court expressly based its second preservation holding on
682 So. 2d 175, 178 (Fla. 1st DCA 1996), disapproved of on other
grounds, Dudley v. State, 139 So. 3d 273 (Fla. 2014).
2 954 So. 3d at 109–10 (“However, contrary to the majority
view, it is my view that under the reasoning in Hopkins v. State,
632 So. 2d 1372 (Fla. 1994), Elwell’s challenge to the admission of
child-hearsay statements was preserved for review.”) (Fulmer,
C.J., specially concurring).
13
the premise that objections under section 90.803(23) include
evidentiary sufficiency. The court in Elwell appears to have
missed this point.
The majority also relies on McCloud v. State, 91 So. 3d 940
(Fla. 1st DCA 2012), saying it is similar to Elwell, which is cited
in that opinion. But McCloud has no precedential weight because
its discussion of preservation is pure dicta. That’s because the
panel specifically held that the challenged “order does contain
sufficient findings” thereby making its additional discussion of
the preservation issue needless. Id. at 940. And its discussion is
dicta whether it is one sentence, two paragraphs, or most of what
was written. Moreover, the opinion in McCloud is opaque as to
when the objection was made. It says only that a pre-trial
hearing was held, that the “appellant subsequently argued that
the child’s statements were not shown to be reliable enough to
satisfy the requirements of section 90.803(23),” and that
“appellant let the case go to trial without raising the issue, and
after being convicted he now attempts to interject this issue on
appeal.” Id. at 940-41. Plus, McCloud differs factually, and
thereby is inapplicable here, because Coleman properly objected
and didn’t just idly “let the case go to trial without raising the
issue” only to “interject this issue on appeal.” Id. at 941. Finally,
the decision in McCloud makes no mention of Hopkins or the
other relevant cases from this Court, such as R.L.R., that are
pertinent on the matter.
Despite all this, and in face of contrary precedent, the
majority clings to the Second District’s case in Elwell as if it is
binding in our district and makes the remarkable contention that
McCloud somehow controls because it is claimed to be the most
recent case in a line of conflicting intra-district decisions. But the
majority makes no effort to demonstrate that such a conflict
actually exists on the specific facts and legal analysis of the
allegedly conflicting cases. If anything, McCloud is an outlier in
this District, if not an outlaw, because it doesn’t even mention
Hopkins or R.L.R. and the other First District cases (Womack and
Mathis) that even Elwell said were contrary to its holding; the
same is true for the terse, one-paragraph per curiam opinion in
Cowan v. State, 165 So. 3d 58 (Fla. 1st DCA 2015).
14
And this case is not about a so-called “automatic
preservation” rule, a phrase never before used in Florida’s
jurisprudence. Fundamental errors can be said to be
automatically preserved, Cromartie v. State, 70 So. 3d 559, 563
(Fla. 2011), but this case has nothing to do with such errors.
Moreover, the statutory codification in 1996 of the then-
prevailing standards for preservation of error in criminal cases
changed nothing other than to legislatively adopt what was
already prevailing in the judicial world. See State v. Jefferson,
758 So. 2d 661, 666 (Fla. 2000) (“construing [newly-enacted
section 924.051(3)] as merely codifying the existing procedural
bars to appellate review both upholds the statute’s
constitutionality and is consistent with the actual legislative
intent in passing the Act”); see generally Ch. 96-248, § 4, Laws of
Fla. (creating section 924.051). To go beyond the statute’s
purpose, which was simply codification of the status quo, could be
deemed a restriction on “the subject matter jurisdiction of the
appellate courts in a manner not authorized by the constitution”
and be thereby “unconstitutional,” which is not a good thing. Id.
at 665. And making a timely and proper objection as to the
reliability and trustworthiness of child hearsay evidence doesn’t
put the cart before the horse; it anticipates that the cart will be
empty because insufficient evidence exists as to reliability and
trustworthiness. So says Hopkins. See Hopkins, 632 So. 2d at
1376 (sufficiency of the trial court’s factual findings was
preserved because “defense counsel’s objection to the reliability of
the evidence necessarily encompassed the sufficiency of the
judge’s findings as to that reliability. Counsel was not required to
specify each finding of fact to which he was objecting.”).
In a judicial system founded upon stare decisis and its
principles of stability, predictability and judicial restraint, our
supreme court’s decision in Hopkins is an authoritative
precedent, one that directly supports the conclusion that
Coleman adequately preserved his objections under section
90.803(23), Florida Statutes. The Second District’s decision in
Elwell does not trump the supreme court’s decision in Hopkins,
nor is it binding on this Court. And the panel majority in this
case cannot overrule R.L.R. and the other decisions of this Court
on the topic, claiming that dicta in an opaquely written outlier
controls; if conflict exists as is claimed, the en banc rule stands
15
ready to bring about uniformity. Short of en banc review,
Hopkins and R.L.R. collectively control the preservation issue
under section 90.803(23) in this appeal.
_____________________________
Andy Thomas, Public Defender, Joanna A. Mauer, Assistant
Public Defender, and Kathleen Pafford, Assistant Public
Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, Robert Quentin Humphrey,
Assistant Attorney General, and Damaris E. Reynolds, Assistant
Attorney General, Tallahassee, for Appellee.
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