IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA JAMES WILLIAMS, Petitioner, Case No. SC v. DCA No. 2D STATE OF FLORIDA, Respondent. / Circuit Court No CA On Petition for Discretionary Review of the Decision of the Second District Court of Appeal AMENDED BRIEF OF PETITIONER JAMES WILLIAMS ON JURISDICTION Elliott C. Metcalfe, Jr. Public Defender Twelfth Judicial Circuit Christopher E. Cosden Assistant Public Defender 2071 Ringling Blvd., Fifth Floor Sarasota, Florida Florida Bar No Attorney for the Petitioner

2 TABLE OF CONTENTS Pages Table of Contents Table of Citations ii iii Preface 1 Statement of the Case and Facts 1 Summary of Argument 4 Argument I. Treatment of Different Levels of Hearsay 5 Hearsay evidence, whether simple hearsay, double hearsay, or multiple level hearsay, is properly treated in the same manner under established Florida law. II. Evidence Derived from Plea of Nolo Contendere 7 Evidence derived from reports of offenses for which an individual has been convicted on a plea of nolo contendere is not thereby admissible in a subsequent civil proceeding as tending to prove the facts upon which the plea was based. Conclusion 10 Certificate of Service 11 ii

3 TABLE OF CITATIONS CASES Case Pages Anderson v. Andrews 9, So. 2d 237 (Fla. 1st DCA 1997) Brown v. State So. 2d 849 (Fla. 4th DCA 1998) Bolin v. State So. 2d 1160 (Fla.1999) Burgess v. State So. 2d 137 (Fla. 2002) Chesebrough v. State So. 2d 675 (Fla. 1971) Garron v. State So. 2d 353 (Fla. 1988) Hill v. State 5, So. 2d 179 (Fla. 1989) Jenkins v. State 2, 5, So. 2d 783 (Fla. 5th DCA 2002) Keyes v. Tallahassee Memorial Regional Medical Center 7, So. 2d 201 (Fla. 1st DCA 1991) Lee v. Dept. of Health and Rehabilitative Services 6, So. 2d 1194 (Fla. 1997) State v. Dubose 9, 10 iii

4 11 So. 2d 477, 152 Fla. 304 (Fla. 1943) State v. Raydo So. 2d 996 (Fla. 1998) Stevens v. Duke 9, So. 2d 361 (Fla. 1949) Van Zant v. State So. 2d 502 (Fla. 1st DCA 1979) Vinson v. State So. 2d 711 (Fla. 1977) Williams v. Castor 9, So. 2d 97 (Fla. 1st DCA 1993) Wyche v. Florida Unemployment Appeals Com n. 9, So. 2d 184 (Fla. 3d DCA 1985) STATUTES AND OTHER AUTHORITIES Authority Pages Florida Statutes et seq. Florida Statutes (1999) 1 Fla. R. App. P (a)(2)(A)(iv) 1 Florida Constitution, Article V, 3(b)(3) 1 iv

5 PREFACE The instant Petitioner, James Williams, was the Respondent in an action the Circuit Court of the Twelfth Judicial Circuit in and for Sarasota County, Florida, wherein he was adjudged a sexually violent predator pursuant to et seq. Florida Statutes (1999). His commitment was affirmed on appeal to the Second District Court of Appeal. See Williams v. State, No. 2D (Fla. 2d DCA Feb. 28, 2003), attached as Appendix A and cited hereinafter as slip opinion. He now petitions this Court for discretionary conflict review pursuant to Fla. Const. Art. V, 3(b)(3) and Fla. R. App. P (a)(2)(A)(iv). To avoid confusion herein, the instant Petitioner (the Respondent and Appellant below), will be referred to by name or as the Defendant; the State of Florida (the Petitioner and Appellee below) will be referred to as the State of Florida or the State. STATEMENT OF THE CASE AND FACTS The State of Florida filed a Petition for commitment of James Williams as a sexually violent predator on 01 March 1999 in Sarasota County, Florida. The case was tried to a jury in Sarasota County on July The Defendant was committed. The trial court allowed, over objection, testimony at trial wherein certain experts called by the State referred to facts cited in police reports regarding the details of prior sexual offenses for which Williams previously had 1

6 been convicted. Williams, slip opinion at 2. The Defendant appealed the order of commitment to the Second District Court of Appeal. On appeal Williams argue[d] that Jenkins v. State, 803 So. 2d 783 (Fla. 5th DCA 2002), prohibits such use of those statements because, as was the case in Jenkins, Williams was denied the opportunity to cross-examine the author of those statements. Williams, slip opinion at 2-3. The district court held that the Jenkins decision is distinguishable from the facts in this case. In Jenkins, the reports included not only hearsay, but double hearsay... By contrast, the evidence relied upon by the experts and testified to in court here came from reports on offenses for which Williams was previously convicted so that the essence of those statements had been either admitted by Williams or subjected to the scrutiny of a trial. Williams, slip opinion at 3. That opinion expressly and directly conflicts with decisions of other district courts of appeal and of decisions this Court on the same question of law. The State s experts relied upon and extensively testified before the jury concerning alleged facts underlying the Defendant s two prior convictions upon pleas of nolo contendere: State v. Williams, No CF-A-01 (Fla. 12th Judicial Circuit, Sarasota County, March 4, 1985), and State v. Williams, No F (Fla. 12th Judicial Circuit, Sarasota County, May 12, 1998). 2

7 Certified copies of the judgements and sentences in both cases, clearly showing the nature of the pleas, were admitted to evidence 1 as plaintiff s exhibits 1 and 2. 2 Based upon the said convictions upon pleas of nolo contendere, the trial court allowed the prosecutor to present, over Defendant s objection, extended hearsay descriptions of alleged lewd acts involving children, including lurid accounts of sexual acts with children, through the hearsay testimony of a State s expert witness, Dr. Benoit. 3 The trial allowed similar hearsay testimony, over objection, by another State s expert witness, Dr. Shaw. 4 The State s witnesses not only relied upon hearsay in formulating their opinions, but also repeated the hearsay statements about the alleged acts of the Defendant in their testimony before the jury. Williams, slip opinion at 3. ( [T]he evidence relied upon by the experts and testified to in court here came from reports on offenses for which Williams was previously convicted... (Emphasis added.)) 1 Over the objection of the Defendant. See trial transcript, page 413, line 10 - page 414, line Record on appeal, pages and Trial transcript, page 189, line 23 - page 194, line Trial transcript, page 323, line 20-22; page 324, line 13 - page 326, line 20. 3

8 SUMMARY OF ARGUMENT Jurisdiction. Jurisdiction to hear this case exists because the decision of the district court to admit hearsay testimony expressly and directly conflicts with decisions of other district courts of appeal and of decisions this Court on the same question of law in two particulars: (1) hearsay, whether simple hearsay, double hearsay, or multiple levels of hearsay within hearsay, is all properly treated in the same manner under well established Florida decisional law, and (2) evidence derived from reports of offenses for which an individual has been convicted on a plea of nolo contendere has no proper evidentiary effect beyond the action in which it was entered and is not admissible in a subsequent civil proceeding as evidence tending to prove the facts upon which it is based. Discretion. Discretion to hear this case exists because the district court s opinion is without support in fact or law, and is in irreconcilable conflict with the view of this Court and the other district courts regarding proof of facts based upon the entry of a plea of nolo contendere. Exercise of Discretion. This Court should exercise its discretion to review this case because to allow one district to admit hearsay evidence excluded in other districts would result in inequities in a very wide range of cases, as shown by decisional law cited herein, including cases determining issues of criminal liability, 4

9 post-sentence civil commitment, medical malpractice, legal malpractice, motor vehicle tort liability, governmental tort liability, forfeiture, unemployment compensation, and professional licensure. ARGUMENT I. Treatment of Different Levels of Hearsay Hearsay evidence, whether simple hearsay, double hearsay, or multiple level hearsay, is properly treated in the same manner under established Florida law. In the instant case the Second District Court of Appeal, affirming the trial court s admission to evidence of certain hearsay testimony, held that the Jenkins [v. State, 803 So. 2d 783 (Fla. 5th DCA 2001)] decision is distinguishable from the facts in this case. In Jenkins, the reports included not only hearsay, but double hearsay. Williams, slip opinion at 3. That is error because Florida courts treat multiple levels of hearsay in the same way as a single level of hearsay. In Hill v. State, 549 So. 2d 179 (Fla. 1989), this Court reviewed a murder conviction. Hill argued that the trial court had erred in not admitting the testimony of his coworker (A) that a second coworker (B) told him (A) that a third coworker (C) admitted committing the murder. Neither B nor C was available to testify. This Court held that the statements of B and C were inadmissible hearsay except as 5

10 provided by the evidence code. Hill at 181. The Court reasoned that the testimony of A was hearsay within hearsay because it combined the hearsay statements of both B and C. Therefore the Court held, pursuant to Florida Statutes, that the hearsay was inadmissible unless the hearsay statements of both B and C conformed with an exception to the hearsay rule as provided in s or s Hill at 181. Thus, unlike the district court in the instant case, this Court made no distinction between one level of hearsay and multiple levels of hearsay. In Lee v. Dept. of Health and Rehabilitative Services, 698 So. 2d 1194 (Fla. 1997), this Court held that the hearsay statements of patients that an HRS investigator repeated at trial were not properly admissible under either the admissions exception or public records exception to the hearsay rule. Lee at Records that rely on information supplied by outside sources or that contain evaluations or statements of opinion by a public official are not admissible in Florida under the federal provision allowing admission of a record setting forth factual findings resulting from an investigation made pursuant to authority granted by law. Lee at In Florida, rather than offering this type of record, a witness must be called who has personal knowledge of the facts. Lee at Information contained in police reports is also hearsay; such reports do not fall within any recognized exception to the hearsay rule. See Burgess v. State, 6

11 831 So. 2d 137, 140 (Fla. 2002); Van Zant v. State, 372 So. 2d 502, (Fla. 1st DCA 1979), and cases cited therein. In any event, oral testimony concerning business records is not admissible under the business records exception absent admission of the records. Bolin v. State, 736 So. 2d 1160, 1167 (Fla. 1999). The district courts of appeal are in accord that where an out-of-court statement involves hearsay within hearsay, each part of the combined statements must be within a recognized exception to be properly admitted. See, e.g., Keyes v. Tallahassee Memorial Regional Medical Center, 579 So. 2d 201, (Fla. 1st DCA 1991), rev. denied, 591 So. 2d 184 (Fla. 1991); Van Zant at ; Brown v. State, 707 So. 2d 849, 850 (Fla. 4th DCA 1998). Exactly the same should be true in the instant case. However the Second District Court adopted a position which expressly and directly conflicts with decisions of other district courts of appeal and of decisions this Court on the same question of law. II. Evidence Derived from Pleas of Nolo Contendere Evidence derived from reports of offenses for which an individual has been convicted on a plea of nolo contendere is not thereby admissible in a subsequent civil proceeding as tending to prove the facts upon which the plea was based. In the instant case the Second District Court of Appeal, affirming the trial 7

12 court s admission to evidence of certain hearsay testimony, held that evidence relied upon by the experts and testified to in court here came from reports on offenses for which Williams was previously convicted so that the essence of those statements had been either admitted by Williams or subjected to the scrutiny of a trial. Williams, slip opinion at 3. It is important to note that the State s expert witnesses, in their testimony to the jury, both stated opinions and repeated long hearsay statements about the alleged acts of the Defendant, over his objection. Where, as here, a defendant has entered a plea of nolo contendere, the allegations against him have not withstood the scrutiny of a trial. Nothing in the record of this case or in the law of Florida suggests that any court had ever conducted a trial in either case in which the Defendant had plead nolo contendere, or that a court could ever conduct a trial having accepted a plea of nolo contendere. Moreover the proposition that the essence of the hearsay statements relied upon by the State s experts had been admitted by the Defendant is without support and conflicts with virtually all Florida decisional law regarding proof of facts based upon the entry of a plea of nolo contendere. This Court has held that Florida law expressly prohibits nolo contendere pleas from being admitted into evidence because [a] defendant entering a plea of nolo contendere does not admit guilt. State v. Raydo, 713 So. 2d 996, 1001 (Fla. 8

13 1998). In Vinson v. State, 345 So. 2d 711, 715 (Fla. 1977) this Court held that unlike a plea of guilty [a plea of nolo contendere] cannot be used against the defendant in a civil suit as an admission of the facts charged in the indictment... In Garron v. State, 528 So. 2d 353, 360 (Fla. 1988) this Court held that [a] nolo plea means no contest, not I confess. See also Chesebrough v. State, 255 So. 2d 675, (Fla. 1971). This Court has repeatedly stated the same principle of law for many years. See, e.g., Stevens v. Duke, 42 So. 2d 361, 363 (Fla. 1949); State v. Dubose, 11 So. 2d 477, 481, 152 Fla. 304, 313 (Fla. 1943). The decisions of the several district courts of appeal also conflict with the decision of the Second District Court in the instant case. See Wyche v. Florida Unemployment Appeals Commission, 469 So. 2d 184, 186 (Fla. 3d DCA 1985) ( A plea of no contest represents only an unwillingness to contest a charge... It does not constitute an admission of guilt and may not be used as direct evidence of guilt in a civil suit. ) See also Anderson v. Andrews, 692 So. 2d 237, 242 (Fla. 1st DCA 1997) (legal malpractice). In Williams v. Castor, 613 So. 2d 97, 99 (Fla. 1st DCA 1993), the First District Court, considering the revocation of William s professional license after he was convicted of a crime, held that [t]he law is well established that a judgment of conviction of a criminal offense, whether based on a plea of guilty or nolo contendere, is not admissible in a subsequent civil proceeding 9

14 as proof of the facts on which it is based. CONCLUSION Thus it is clear that the Second District Court s opinion regarding the admission to evidence of hearsay statements in police reports, which were repeated to the jury by the State s expert witnesses, expressly and directly conflicts with decisions of other district courts of appeal and of decisions this Court on the same questions of law. To allow one district court of appeal to adopt a rule allowing admission of hearsay evidence excluded in other districts would result in inequities in a very wide range of criminal and civil cases. 5 Therefore the Defendant requests that this Honorable Court exercise its discretion to review the decision of the Second District Court of Appeal wherein that court adopted a position which expressly and directly conflicts with decisions of this Court and other district courts of appeal on the same question of law. 5 The scope of the non-criminal cases cited herein includes governmental liability in tort (Lee v. Dept. of Health and Rehabilitative Services), medical malpractice (Keyes v.tallahassee Memorial Regional Medical Center), legal malpractice (Anderson v. Andrews), post-sentence civil commitment (Jenkins v. State), motor vehicle tort liability (Stevens v. Duke), forfeiture (State v. Dubose), unemployment compensation (Wyche v. Florida Unemployment Appeals Com n.), and professional licensure (Williams v. Castor). 10

15 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Amended Jurisdictional Brief has been furnished by U.S. mail, postage prepaid, to the Office of the Attorney General, 2002 North Lois Avenue, Suite 700, Tampa, Florida 33607, on this 29th day of March, CERTIFICATE OF COMPIANCE I HEREBY CERTIFY that this brief is printed in Times New Roman 14 point type. Elliott C. Metcalfe, Jr. Public Defender Twelfth Judicial Circuit Christopher E. Cosden Assistant Public Defender 2071 Ringling Blvd., Fifth Floor Sarasota, Florida Florida Bar No Attorney for the Petitioner 11