Latrail Onrillious Jones v. State of Florida

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LATRAIL ONRILLIOUS JONES,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D13-963
[November 25, 2015]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Robert R. Makemson, Judge; L.T. Case No. 562011CF
003046A.
Carey Haughwout, Public Defender, and Virginia Murphy, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Assistant Attorney General, West Palm Beach, for appellee.
KLINGENSMITH, J.
Latrial Onrillious Jones (“appellant”) appeals his convictions for
burglary of a dwelling, criminal mischief, and petit theft. He argues that
the trial court abused its discretion by refusing to admit the deposition
testimony of a deceased witness as substantive evidence in light of her
unanticipated death prior to trial. Appellant never moved to perpetuate
this testimony pursuant to Florida Rule of Criminal Procedure 3.190(i)
(“rule 3.190(i)”), but argues the deposition could have been properly
admitted under section 90.804, Florida Statutes, because the witness
was unavailable. For the reasons set forth below, we find that the trial
court did not abuse its discretion by refusing to admit the deposition
testimony into evidence, and affirm.
A party is permitted to admit:
Testimony given as a witness at another hearing of the same
or a different proceeding, or in a deposition taken in
compliance with law in the course of the same or another
proceeding, if the party against whom the testimony is now
offered . . . had an opportunity and similar motive to develop
the testimony by direct, cross, or redirect examination.
§ 90.804(2)(a), Fla. Stat. (2012) (emphasis added).
Compliance with the law, as required by this statute, also means
compliance with the Florida Rules of Criminal Procedure. See Rodriguez
v. State, 609 So. 2d 493, 499 (Fla. 1992). As such, when a discovery
deposition is taken pursuant to Florida Rule of Criminal Procedure 3.220
(“rule 3.220”), the proper method for perpetuating that deposition
testimony is found in rule 3.190(i). The rule states, in pertinent part:
(i) Motion to Take Deposition to Perpetuate
Testimony.
(1) After the filing of an indictment or information on
which a defendant is to be tried, the defendant or the state
may apply for an order to perpetuate testimony. The
application shall be verified or supported by the affidavits of
credible persons that a prospective witness resides beyond
the territorial jurisdiction of the court or may be unable to
attend or be prevented from attending a trial or hearing, that
the witness’s testimony is material, and that it is necessary
to take the deposition to prevent a failure of justice. The
court shall order a commission to be issued to take the
deposition of the witnesses to be used in the trial and that
any nonprivileged designated books, papers, documents, or
tangible objects be produced at the same time and place. If
the application is made within 10 days before the trial date,
the court may deny the application.
Fla. R. Crim. P. 3.190(i)(1).
The case law is clear that even when a potential witness dies after
providing deposition testimony, the deposition will not be admissible as
substantive evidence in a criminal trial unless the party attempting to
enter it has moved to perpetuate the testimony pursuant to rule 3.190(i).
In State v. James, 402 So. 2d 1169, 1171 (Fla. 1981), the Florida
Supreme Court held that “discovery depositions [taken pursuant to rule
3.220 and not perpetuated pursuant to rule 3.190(i)] may not be used as
substantive evidence in a criminal trial.” In Rodriguez, the court
considered the interaction between chapter 90 of the Florida evidence
code and rule 3.190 in answering the question of whether it was error to
refuse to admit the testimony of an unavailable witness as substantive
2
evidence pursuant to the hearsay exception in section 90.804(2)(a). 609
So. 2d at 497-99. The court stated:
We are presented with the question of whether a
deposition is admissible as substantive evidence, under
section 90.804(2)(a) of the evidence code, when, at the time
of its taking, opposing counsel is not alerted by compliance
with Rule of Criminal Procedure 3.190(j)[1] that the
deposition may be used at trial. We hold that it is not.
Accord [James]; Campos v. State, 489 So. 2d 1238 (Fla. 3d
DCA 1986) (discovery deposition that qualifies as a hearsay
exception under section 90.804(2)(a) is not admissible as
substantive evidence unless it qualifies for such admission
under the criminal rules of procedure); Jackson v. State, 453
So. 2d 456 (Fla. 4th DCA 1984) (same); Terrell v. State, 407
So. 2d 1039 (Fla. 1st DCA 1981) (same).
It is generally accepted that when an exception to the rule
excluding depositions as hearsay is not found in the Rules of
Civil Procedure, the evidence code may provide such an
exception in a civil proceeding. See, e.g., Dinter v. Brewer,
420 So. 2d 932, 934 (Fla. 3d DCA 1982); Johns–Manville
Sales Corp. v. Janssens, 463 So. 2d 242, 259 (Fla. 1st DCA
1984), review denied, 467 So. 2d 999 (Fla.1985). However, a
similar result is not warranted in a criminal case. This is so
because greater latitude for the use of depositions in civil
cases exists by virtue of Rule of Civil Procedure 1.330 which
is much broader than the Rules of Criminal Procedure that
provide for the use of deposition testimony.
Rule of Criminal Procedure 3.220(h), as adopted by this
Court, allows discovery depositions to be used by any party
for the purpose of contradicting or impeaching the testimony
of the deponent as a witness but makes no provision for
their use as substantive evidence. If it had been our intent
to allow such use, the rule would so state. Rather, Rule of
Criminal Procedure 3.190(j) was enacted to assure that both
parties have an opportunity and motive to fully develop
deposition testimony before it can be used as substantive
evidence in a criminal case.
1 Rule 3.190(i) was previously codified as rule 3.190(j), but the court modified
the lettering in 2009. See In re Amendments to the Fla. Rules of Criminal
Procedure, 26 So. 3d 534, 539-40 (Fla. 2009).
3
The holding in [James] that discovery depositions are not
admissible as substantive evidence absent compliance with
Rule 3.190(j) was in no way modified by the adoption of
section 90.804(2)(a). In fact, the necessity of meeting the
procedural requirements for perpetuating testimony before a
deposition is admissible as substantive evidence is recognized
in section 90.804(2)(a) by the express requirement that the
deposition must be “taken in compliance with law.” Accord
Terrell v. State, 407 So. 2d at 1041. Accordingly, the
deposition testimony was properly excluded in this case.
Id. at 498-99 (emphasis added) (footnotes omitted).
The court explained the difference between a discovery deposition and
a deposition intended for use at trial in State v. Lopez, 974 So. 2d 340(Fla. 2008). There, the court held:
Additionally, the purpose of a discovery deposition is at
odds with the concept of a meaningful cross-examination.
Often discovery depositions are taken for the purpose of
uncovering other evidence or revealing other witnesses. As
this Court has explained, the fundamental distinctions
between depositions taken pursuant to Florida Rule of
Criminal Procedure 3.190(j) (Motion to Take Deposition to
Perpetuate Testimony) and those taken under rule 3.220 are:
Depositions taken pursuant to rule 3.190 are
specifically taken for the purpose of introducing those
depositions at trial as substantive evidence.
Depositions taken pursuant to rule 3.220, on the other
hand, are for discovery purposes only and, for a
number of reasons, assist in shortening the length of
trials. How a lawyer prepares for and asks questions
of a deposition witness whose testimony may be
admissible at trial as substantive evidence under rule
3.190 is entirely different from how a lawyer prepares
for and asks questions of a witness being deposed for
discovery purposes under rule 3.220. In effect, the
knowledge that a deposition witness’s testimony can
be used substantively at trial may have a chilling effect
on a lawyer’s questioning of such a witness.
4
State v. Green, 667 So. 2d 756, 759 (Fla. 1995). A defendant
cannot be “expected to conduct an adequate cross-
examination as to matters of which he first gained knowledge
at the taking of the deposition.” State v. Basiliere, 353 So.
2d 820, 824–25 (Fla. 1977). This is especially true if the
defendant is “unaware that this deposition would be the only
opportunity he would have to examine and challenge the
accuracy of the deponent’s statements.” Id. at 824.
Finally, a deposition that is taken pursuant to rule 3.220
is only admissible for purposes of impeachment and not as
substantive evidence. See [Rodriguez, 609 So. 2d at 498-99]
(ruling that only depositions taken pursuant to rule 3.190(j)
may be used as substantive evidence because rule 3.220
makes no provision for the use of discovery depositions as
substantive evidence); [James, 402 So. 2d at 1171]
(“[D]iscovery depositions may not be used as substantive
evidence in a criminal trial.”); Basiliere, 353 So. 2d at 823(holding that deceased victim’s discovery deposition was not
admissible as evidence in defendant’s trial because
defendant was not present during the examination). Cf.
State v. Green, 667 So. 2d at 759 (ruling that an inconsistent
discovery deposition given by a victim who recanted at trial
was not admissible as substantive evidence under section
90.801(2)(a), Florida Statutes (1989), which provided that an
inconsistent statement given under oath in a deposition was
not hearsay).
Thus, the exercise of the right to take a discovery
deposition under rule 3.220 does not serve as the functional
substitute of in-court confrontation of the witness because
the defendant is usually prohibited from being present, the
motivation for the deposition does not result in the
“equivalent of significant cross-examination,” and the
resulting deposition cannot be admitted as substantive
evidence at trial.
Id. at 349-50.
Appellant cites to Chambers v. Mississippi, 410 U.S. 284 (1973), and
argues that his due process rights were violated when the trial court
refused to allow the deposition to be read at trial. However, this court
has previously discussed the admissibility of un-perpetuated,
exculpatory deposition testimony in light of the holding in Chambers and
5
other Florida cases, including the James, Rodriguez, and Lopez
decisions, and declared that due process and procedural fairness applies
not just to the criminal defendant but to the State as well.
In Leighty v. State, 981 So. 2d 484, 487-94 (Fla. 4th DCA 2008), a
case involving the unexpected unavailability of a defense witness, we
explained why permitting the defendant to read that witness’ discovery
deposition at trial deprived the State of a fair trial. There, we stated:
In this case, neither side anticipated that Nieves would not
be available to testify, and in fact, both sides expected she
would be available since she was Leighty’s girlfriend. To the
extent the state could anticipate that Nieves would attempt
to help Leighty with her testimony, there is an obvious issue
of credibility because of her romantic involvement with
Leighty. But in the context of a discovery deposition, there
could easily be other information for attacking the credibility of
Nieves about which the state did not want to educate Leighty.
Without notice that the defense was intending to use Nieves’
deposition testimony as substantive evidence, the state did
not have an opportunity and motive to fully develop her
deposition testimony by rigorous cross-examination. Thus, the
state was also deprived of the opportunity to test the
reliability of her exculpatory testimony.
Chambers stands for the proposition that constitutional
rights and protections trump state court rules of evidence
which exclude evidence only when the reliability of that
evidence can be tested. Under the facts of this case, the
state did not have a fair opportunity to test the reliability of
Johnson’s assertion that Leighty had nothing to do with the
robbery and murders, and the state did not have a fair
opportunity to test the reliability of Nieves’ testimony that
Johnson said those things. Thus, the trial court properly
excluded the use of Nieves’ deposition transcript as
substantive exculpatory evidence in this case even after
considering the principles announced in Chambers.
Id. at 494 (emphasis added).
The issue here is the disadvantage suffered by the party against
whom the un-perpetuated deposition testimony is entered as substantive
evidence. As the court made clear in Lopez, a deposition taken for
discovery purposes is different from deposition intended for use at trial.
6
974 So. 2d at 349-50. Thus, when any party, the State or a defendant,
does not have prior notice of the opposing party’s intent to use deposition
testimony as substantive evidence due to a witness’s unavailability, it is
deprived of the opportunities described in Leighty to fully develop the
testimony by rigorous cross-examination and to test the reliability of that
testimony. 981 So. 2d at 494.
In this case, the trial judge appropriately adhered to the law as set
forth in the decisions discussed herein, and did not abuse his discretion
by excluding the deceased witness’ deposition testimony.
Affirmed.
WARNER and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
7