IN THE SUPREME COURT OF FLORIDA DARYL L. LAVENDER, Petitioner, v. CASE NO. SC01-1977 STATE OF FLORIDA, Respondent. / ON DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL, FIFTH DISTRICT PETITIONER S BRIEF ON THE MERITS JAMES B. GIBSON, PUBLIC DEFENDER NANCY RYAN ASSISTANT PUBLIC DEFENDER FLORIDA BAR NO. 765910 112 ORANGE AVENUE DAYTONA BEACH, FLORIDA 386/252-3367 COUNSEL FOR PETITIONER
TABLE OF CONTENTS STATEMENT OF THE CASE AND FACTS 1 SUMMARY OF ARGUMENT 9 ARGUMENT IN THIS CIVIL COMMITMENT CASE, THE STATE S EXPERT WITNESSES BECAME MERE CONDUITS FOR HEARSAY; THE RESPONDENT S MOTIONS FOR DIRECTED VERDICT, OR FOR NEW TRIAL, SHOULD HAVE BEEN GRANTED. 10 CONCLUSION 17 CERTIFICATES OF SERVICE & FONT 18 -i-
TABLE OF CITATIONS County of Pasco v. Riehl, 620 So. 2d 229 (Fla. 2d DCA 1993), affirmed, 635 So. 2d 17 (1994) 10 Department of Corrections v. Williams, 549 So. 2d 1071 (Fla. 5 th DCA 1989) 15 Department of Law Enforcement v. Real Property, 588 So. 2d 957 (Fla. 1991) 10, 11 Erwin v. Todd, 699 So. 2d 275 (Fla. 5 th DCA 1997) 14-15 Gerber v. Iyengar, 725 So. 2d 1181 (Fla. 3 rd DCA 1998) 15 Hitchcock v. State, 636 So. 2d 572 (Fla. 4 th DCA 1994) 15 In re Beverly, 342 So. 2d 481 (Fla. 1977) 12 Jenkins v. State, 803 So. 2d 783 (Fla. 5 th DCA 2001) 10, 11, 13, 14 Lavender v. State, 791 So. 2d 1255 (Fla. 5 th DCA 2001) 1 Maklakiewicz v. Berton, 652 So. 2d 1208 (Fla. 3 rd DCA 1995) 2, 8, 15 Mathews v. Eldridge, 424 U.S. 319 (1976) 10, 12, 13 Murray v. Regier, 2002 WL 31728885 (Fla. 2002) 12 People v. Otto, 26 Cal. 4 th 200, 209 Cal. Rptr. 2d 327 (Cal. 2001) 10, 11, -ii-
Riggins v. Mariner Boat Works, Inc., 545 So. 2d 430 (Fla. 2d DCA 1989) 15 Smith v. Hooligan s Pub & Oyster Bar, Ltd., 753 So. 2d 596 (Fla. 3 rd DCA 2000) 15 Smithson v. V.M.S. Realty, Inc., 536 So. 2d 260 (Fla. 3 rd DCA 1988) 15 State v. Abreu, 2003 WL 60944 (Fla. 2003) 14 Westerheide v. State, 767 So. 2d 637 (Fla. 5 th DCA 2000), affirmed, 831 So. 2d 93 (Fla. 2002) 1 12, 13 Section 90.704, Florida Statutes 14 Section 90.803, Florida Statutes 14 Section 90.804, Florida Statutes 14 Ehrhardt, Florida Evidence (2002) 15 -iii-
STATEMENT OF THE CASE AND FACTS After a jury trial in the Seventh Judicial Circuit, the petitioner was adjudicated a sexually violent predator pursuant to the Jimmy Ryce Act, and committed to the custody of the Department of Children and Families. He appealed the judgment and commitment orders to the Fifth District Court of Appeal. The District Court affirmed the judgment and commitment orders citing to Westerheide v. State, 767 So. 2d 637 (Fla. 5 th DCA 2000), without writing a further opinion, and certified four questions regarding the constitutionality of the Ryce Act. Lavender v. State, 791 So. 2d 1255 (Fla. 5 th DCA 2001). This court stayed this proceeding pending its decision in Westerheide, then granted Petitioner s motion for a briefing schedule. A jury trial was held in this case on April 27, 2000, before the Fifth District Court issued its decision in Westerheide. 1 (Vol. II, T 1-241) Counsel was appointed to represent Mr. Lavender on March 30, 2000, and Mr. Lavender declined to waive his right to have a jury trial convened within thirty days. (Vol. I, R 26-27; Vol. IV, R 308-11; Vol. III, T 6-11) Both counsel and the respondent filed motions 1 The District Court s decision in Westerheide was issued September 29, 2000. 767 So. 2d 637 (Fla. 5 th DCA 2000). 1
seeking pretrial rulings on evidentiary matters. (Vol. I, R 51-52, 56-57, 150-52; Vol. II, R 254-56) The trial judge, the Honorable Richard G. Weinberg, Circuit Judge, ruled on both counsel s motions and the pro se motions on their merits. (Vol. III, T 12, 57-58) The pro se motions sought to exclude the testimony of any State expert witness which was solely based on hearsay or was based on unreliable hearsay, citing Maklakiewicz v. Berton, 652 So. 2d 1208 (Fla. 3rd DCA 1995). (Vol. I, R 51-52, 57) Counsel s motion sought to exclude any evidence not authorized by Florida s evidence code, as distinct from Section 394.9155(5), Florida Statutes. (Vol. I, R 150-52) Judge Weinberg denied all of the motions. (Vol. III, R 57-63) Testifying at trial, Mr. Lavender admitted he had been convicted in 1993 of committing a lewd act on a child, and admitted that he had been charged on two earlier occasions (1978 and 1989) with sexual conduct involving children. (Vol. III, T 71, 74, 77-81) The State introduced in evidence a certified copy of the conviction obtained in the 1993 case, no. CF93-883. (Vol. III, T 72; Vol. I, R 116) Mr. Lavender explained in his testimony that the alleged victim in the 1993 case, Paul Harris, was a troubled 14-year-old neighbor who made a false accusation and who contradicted himself on numerous occasions in doing so. (Vol. III, 182-91) During his case the 2
respondent introduced copies of his 1989 convictions for simple battery and contributing to the delinquency of a minor, and explained that he had pleaded to those charges, which had some basis in truth, but that he had not pleaded to an additional charge that arose out of the same circumstances in 1989, which had alleged lewd conduct with a child and which was not factually supported. He explained as to the 1989 case that three eleven-year-old boys were hanging around his car while he repaired his radio, that they drank some beer he had in his car, and that he bit one of them on the buttock during a physical dispute that arose over the beer. (Vol. III, T 180-182, 74-76, 80-81) The respondent also explained that in 1978, he had been charged with capital sexual battery on a 10-yearold boy but that the charge was dropped altogether after the boy admitted in deposition that nothing sexual had taken place. (Vol. III, T 171-180, 77-80) In addition to the respondent the State called only two witnesses, psychologists Dr. Michael D Errico and Dr. Jeffrey Benoit. Both D Errico and Benoit testified that they sought unsuccessfully to interview the respondent (Vol. III, T 87-88, 134-35), and testified that they had read his prison records, arrest reports, and presentence investigation reports. (Vol. III, T 87, 133-34) Both diagnosed him as a pedophile (Vol. III, 3
T 88, 145), and both testified that the Diagnostic and Statistical Manual of Mental Disorders states that pedophiles who are attracted to boys recidivate twice as often as do those who are attracted to girls. (Vol. III, T 101, 145) Dr. D Errico testified that it was his opinion, based totally on his behavioral history, on his arrest history, that Mr. Lavender is highly likely to reoffend. (Vol. III, T 88-89) Dr. Benoit testified that his conclusion was Basically he s a pedophile. And he also has a very severe personality disorder...mr. Lavender is highly likely to re-offend if he does not get in-patient sex offender treatment. (Vol. III, T 144-46) Dr. Benoit testified that he found it significant that the respondent had refused sex offender treatment in prison; he admitted on cross-examination that he understands that prison inmates may be singled out for physical abuse if they participate in such programs. (Vol. III, T 135, 150-51) Dr. Benoit also testified that he found it significant that the respondent had been transferred more than once from one prison to another because they considered him to be a threat to the security of the institution (Vol. III, T 135), and testified that he had read a letter from Mr. Lavender s stepfather stating that Mr. Lavender was not welcome to live with him on release due to...verbal threats. (Vol. III, T 144) 4
The State announced in its opening that You aren t going to hear any victims. The victims have already testified. They were in front of a jury and we re not going to bring them back here and put them through this ordeal again. (Vol. III, T 64-65) In response to defense objections, Judge Weinberg ruled that Drs. D Errico and Benoit could not quote in the jury s presence any specific statement made to them by alleged victims, but that the experts could recount the versions of events that were set out in the police reports, could generally recount versions of events that had been told them over the telephone, and could state that those telephoned accounts confirmed police reports. (Vol. III, T 90, 96-97, 98-99, 136-40, 161) In summarizing the police reports, Dr. D Errico described the 1978 case as based on an allegation that Mr. Lavender provided marijuana to an eleven-year-old, then performed fellatio on him. (Vol. III, T 97-98) Dr. Benoit, also testifying from the police reports, described the 1978 offense as involving three boys aged ten to twelve; he specified that the boys all reported using marijuana with Mr. Lavender up to 12 times, and that each of the three boys reported in 1978 that Mr. Lavender had made sexual advances on him. (Vol. III, T 136-37) Benoit admitted on cross-examination that he had not seen a 5
sworn statement from any of the 1978 witnesses, and admitted that he knew a capital sexual charge was ultimately filed then dismissed in the 1978 case. (Vol. III, T 146-47) As to the 1989 incident, D Errico testified from the police reports that the three boys involved were all ten or eleven years old, and that one of them, Ronnie Smith, confirmed on the phone that Mr. Lavender had fondled his penis through his pants. (Vol. III, T 96-97, 103) D Errico admitted that he had never seen or heard a sworn statement from Ronnie Smith. (Vol. III, T 103) Dr. Benoit, as to the 1989 incident, testified that he spoke to all three boys, and that each of the three told him Mr. Lavender had made sexual advances on him; Benoit admitted that he had not seen or heard sworn statements as to the 1989 case. (Vol. III, T 137-40, 155) Dr. D Errico described the police reports from the 1993 case as alleging that Mr. Lavender lavish[ed] marijuana and beer on 14-year-old Paul Harris, then anally raped him; D Errico testified that Paul basically confirmed that information on the phone with him. (Vol. III, T 98-99) Dr. Benoit, as to the 1993 offense, testified that the incident with poor Paul Harris was quite aggressive. (Vol. III, T 140, 142) He admitted on cross-examination that he had not seen any medical corroboration of Paul s alleged penetration, but 6
noted that physical evidence of such an assault probably would not exist. (Vol. III, T 156-58) Asked by defense counsel if he had questioned Paul Harris s story when he saw Harris the day before trial, Dr. Benoit responded No. The story he gave me was entirely consistent with the record, and when I started looking for symptoms that would be related to that type of a crime, this young man had a number of symptoms. He looks like he s been damaged, traumatized. (Vol. III, T 157-58) The only other witness at trial was Dr. Jack Merwin, who was called by counsel for Respondent and who testified that he was not in a position to diagnose Mr. Lavender because he had not had sufficient time to review the case. (Vol. III, T 115) Dr. Merwin did answer a hypothetical question, as follows: DEFENSE COUNSEL: If the evidence before you is that a person has committed a sexual act upon a 14-year-old, and there are allegations of other acts but you have not been able to substantiate them, would that in and of itself render you able to make the diagnosis of pedophilia? DR. MERWIN: Well, I wouldn t make the diagnosis if they were unsubstantiated, unless I had some clear documentation or something to convince me that it in fact happened. (Vol. III, T 116; see T 120) Dr. Merwin admitted on crossexamination that arrests which result in charges being filed are important to him when he is making a diagnosis (Vol. III, T 7
116-17), and admitted that talking to alleged victims himself would certainly be usual. (Vol. III, T 120) Dr. Merwin also agreed on cross-examination that he had read Paul Harris s testimony from the 1993 criminal trial to the effect that Mr. Lavender had anally raped him. (Vol. III, T 119) The charge and conviction in the 1993 case were for lewd and lascivious act on a child. (Vol. I, R 116; Vol. III, T 154-55) At the close of the State s case and at the close of the evidence, the Respondent moved for a directed verdict on the ground that the jury would have to rely on hearsay to reach a verdict recommending commitment, citing Maklakiewicz v. Berton, supra. (Vol. III, T 164, 204) The motions were denied. (Vol. III, T 165, 204) In closing, the State argued that it had shown Mr. Lavender had sexual involvement with seven children. (Vol. III, T 206, 220) The jury returned a unanimous verdict finding Mr. Lavender to be a sexually violent predator, and the trial court so adjudicated him and committed him to the custody of the Department of Children and Families on August 27, 2000. (Vol. I, R 123-25; Vol. III, T 234-35) Counsel timely filed a motion for new trial arguing that the case was based primarily on inadmissible hearsay over the Respondent s objection. (Vol. II, R 269) The court denied the motion. (Vol. II, R 270) As noted above, timely notice of 8
appeal from the April 27, 2000 judgment and commitment order was filed in the Circuit Court. (Vol. II, R 277) 9
SUMMARY OF ARGUMENT The psychologists opinion testimony in the trial of this Jimmy Ryce Act commitment trial was based entirely on inadmissible hearsay which for the most part bore no positive indicia of reliability. The respondent s motions for directed verdict, or for a new trial, should have been granted for that reason. The rulings denying those motions amounted to a deprivation of the due process guaranteed by the federal and Florida Constitutions. 10
ARGUMENT IN THIS CIVIL COMMITMENT CASE, THE STATE S EXPERT WITNESSES BECAME MERE CONDUITS FOR HEARSAY; THE RESPONDENT S MOTIONS FOR DIRECTED VERDICT, OR FOR NEW TRIAL, SHOULD HAVE BEEN GRANTED. The State, in the trial of this case, called as witnesses only the respondent and two psychologists. The psychologists opinion testimony was based entirely on inadmissible hearsay which for the most part bore no positive indicia of reliability. The respondent s motions for directed verdict, or for a new trial, should have been granted for that reason. Jenkins v. State, 803 So. 2d 783 (Fla. 5 th DCA 2001); People v. Otto, 26 Cal. 4 th 200, 109 Cal. Rptr. 2d 327 (Cal. 2001). The rulings denying those motions amounted to a deprivation of the due process guaranteed by the federal and Florida Constitutions. Procedural due process imposes constraints on governmental decisions which deprive individuals of liberty. County of Pasco v. Riehl, 620 So. 2d 229, 231 (Fla. 2d DCA 1993), citing Mathews v. Eldridge, 424 U.S. 319 (1976). The manner in which due process protections apply varies with the character of the interests and the nature of the process involved. Department of Law Enforcement v. Real Property, 588 So. 2d 957, 960 (Fla. 1991). Both the degree and length of a potential wrongful 11
deprivation of liberty are factors to be considered. Riehl at 231, citing Eldridge at 341. There is no single, inflexible test by which courts determine whether the requirements of procedural due process have been met. Department of Law Enforcement, 588 So. 2d at 960. In Jenkins, the Fifth District Court of Appeal reversed a commitment order entered after trial in a Jimmy Ryce case, because admitting police reports that contained unsworn allegations of sexual offenses, without providing the respondent any opportunity to confront the witnesses who had made those allegations, deprived him of a fair trial. 803 So. 2d at 785. Jenkins, like the petitioner here, had a single conviction for lewd conduct, and was committed based on that conviction and on unsworn hearsay statements describing other occasions where no conviction for a sex-related offense ever resulted. Id. at 786. Here, again as in Jenkins, one of the prior incidents that was not memorialized by any sworn statements had resulted in a plea to a non-sexual offense. Id. The court in Jenkins reversed the Circuit Court s commitment order, because the incidents that had not led to convictions were proved in the commitment trial only by hearsay that bore no indicia of reliability. 803 So. 2d at 785-87. The Jenkins court based its decision to reverse on the due 12
process guarantee of the federal constitution and on the California Supreme Court s decision in People v. Otto, supra. In Otto the court considered a California statute which, like Section 394.9155(5), Florida Statutes, provides that hearsay is generally admissible in sexually violent predator ( SVP ) proceedings. The California Supreme Court held that victim hearsay statements must contain special indicia of reliability to satisfy due process where they are admitted in a SVP trial. Otto, 26 Cal. 4 th 200, 210 (2001). The court in Otto arrived at that holding after analyzing the four factors set out in Mathews v. Eldridge, supra, i.e., (1) the private interest that will be affected by the official action; (2) the risk of erroneous deprivation of that interest through the procedures used, and the probable value of substitute procedural safeguards; (3) the government s interest, including the fiscal and administrative burdens of the substitute procedural safeguards; and (4) the dignitary interest in informing individuals of the potential deprivation, and in enabling them to present their side of the story. Otto, 26 Cal. 4 th at 210; see Eldredge, 424 U.S. at 335. First, the supreme court in Otto held that the private liberty interest involved was significant. 26 Cal. 4 th at 210. As two concurring judges elaborated, [t]he private 13
interest at stake... is compelling. A sexually violent predator faces a complete loss of liberty. Id. at 217 (George, C.J., and Kennard, J., concurring.) See Murray v. Regier, 2002 WL 31728885 *3 (Fla. 2002) ("civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection ); In re Beverly, 342 So. 2d 481, 489 (Fla. 1977)(in civil commitment cases [t]he seriousness of the deprivation of liberty...make[s] imperative strict adherence to the rules of evidence ). As to the second Eldridge factor, the court in Otto held that the risk of erroneous deprivation of liberty could not be tolerated without special indicia of reliability being shown as to hearsay statements introduced in SVP trials, since the respondent s past conduct satisfies not only the element of a prior sex-related criminal record but permeates...also the psychological experts conclusion [whether a respondent is] likely to reoffend. Otto, 26 Cal. 4 th at 210. The third Eldridge factor, the government s interest in protecting the public, was also deemed compelling, and the fourth factor was found satisfied by the jury trial called for in the SVP statutory scheme. Id. at 214-15. The court in Otto, unlike the court in Jenkins, held that the hearsay statements before it did bear indications of 14
reliability sufficient to satisfy due process. The dispositive factors were Otto s detailed admissions in the criminal proceedings, Otto s own expert s conclusion that he had been guilty of sexual transgressions on more than one occasion, and the fact that there ha[d] been really no substantial dispute that the...predicate [was] met in this matter. 26 Cal. 4 th at 213-14. Here, in high contrast, the 1978 allegation resulted in a capital sexual battery charge that was dismissed altogether by the State, Mr. Lavender pleaded no contest only to nonsexual offenses in the 1989 case, and he went to trial rather than admitting any offense in the 1993 case. Here, as in Jenkins v. State, supra, the State has relied for commitment on one conviction for lewd conduct, supplemented only by unsworn hearsay allegations and expert opinions that are based inextricably on those unsworn allegations. Here, as in Jenkins, the commitment order should be reversed, and the case remanded for the State to consider whether it has a sufficient nonhearsay basis to again proceed to trial. Section 394.9155(5) of the Ryce Act, the section that purports to allow admission of otherwise inadmissible hearsay, of course does not override constitutional due process guarantees. Jenkins, 803 So. 2d at 785; see generally State v. Abreu, 2003 WL 60944 (Fla. 2003). The State made no showing in 15
this case that either the victims statements, or the police reports where the doctors saw summaries of those statements, fit into any of the exceptions to the general rule against admitting hearsay set out in Section 90.803 or 90.804, Florida Statutes. An expert witness may, of course, testify to an opinion that is based on information that would not be admissible in court. Section 90.704, Florida Statutes; Erwin v. Todd, 699 So. 2d 275, 277 (Fla. 5 th DCA 1997). However, an expert witness may not disclose during trial inadmissible matters he or she has relied on in reaching an opinion, where the inadmissible matters, on balance, are more prejudicial than probative. Ehrhardt, Florida Evidence, s. 704.01, at nn. 15-20 (2002). As the rule is often expressed, an expert may not be used as a mere conduit for the introduction of otherwise inadmissible evidence. Erwin v. Todd at 277; Department of Corrections v. Williams, 549 So. 2d 1071, 1072 (Fla. 5 th DCA 1989); Smith v. Hooligan s Pub & Oyster Bar, Ltd., 753 So. 2d 596 (Fla. 3 rd DCA, 2000); Gerber v. Iyengar, 725 So. 2d 1181, 1185 (Fla. 3 rd DCA 1998); Maklakiewicz v. Berton, 652 So. 2d 1208 (Fla. 3 rd DCA 1995); Riggins v. Mariner Boat Works, Inc., 545 So. 2d 430, 431-32 (Fla. 2d DCA 1989); Smithson v. V.M.S. Realty, Inc., 536 So. 2d 260 (Fla. 3 rd DCA 1988). The evidentiary error in this case was compounded by the 16
psychologists each announcing his opinion that his telephone conversations with the alleged victims confirmed the contents of the police reports. In Hitchcock v. State, 636 So. 2d 572 (Fla. 4 th DCA 1994), the Fourth District Court reversed a conviction for lewd conduct where a psychologist both recounted a child victim s hearsay and gave the impression [she] thought the victim was telling the truth. 636 So. 2d at 575. Here, as in Hitchcock, the defense squarely contradicted the accusers statements, and credibility issues therefore were central to the jury trial; for that reason, as in Hitchcock, the due process error can not reasonably be deemed harmless. This court should quash the Fifth District s decision in this case and remand for a new trial. 17
CONCLUSION The petitioner requests this court to quash the decision of the District Court of Appeal, and to remand this case for a new trial. Respectfully submitted, Nancy Ryan Assistant Public Defender Florida Bar No. 765910 112 Orange Avenue Daytona Beach, Florida 32114 386/252-3367 Counsel for Petitioner 18
CERTIFICATE OF SERVICE The undersigned certifies that a true copy of the foregoing has been served on Assistant Attorney General Judy Taylor Rush, of 444 Seabreeze Boulevard, Fifth Floor, Daytona Beach, Florida 32117, by way of the Attorney General s in-box at the Fifth District Court of Appeal, this day of January, 2003. Nancy Ryan Florida Bar No. 765910 CERTIFICATE OF COMPLIANCE The undersigned certifies that this brief complies with Rule 9.210(2)(a) in that it is set in Courier New 12-point font. Nancy Ryan Florida Bar No. 765910 19