IN THE SUPREME COURT OF FLORIDA ROBERT J. MASTERS, ) ) Petitioner, ) ) vs. ) DCA NO. 5D06-3508 ) CASE NO. STATE OF FLORIDA, ) ) Respondent. ) ) ON DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL, FIFTH DISTRICT PETITIONER S JURISDICTIONAL BRIEF JAMES S. PURDY PUBLIC DEFENDER SEVENTH JUDICIAL CIRCUIT By: NANCY RYAN ASSISTANT PUBLIC DEFENDER Florida Bar Number 765910 444 Seabreeze Blvd., Suite 210 Daytona Beach, Florida 32118 Phone: 386/252-3367 COUNSEL FOR PETITIONER
TABLE OF CONTENTS STATEMENT OF THE CASE AND FACTS 1 SUMMARY OF ARGUMENT 4 ARGUMENT THE DECISION AND OPINION IN THIS CASE EXPRESSLY FIND SECTION 394.9155(5), FLORIDA STATUTES (2006) TO BE CONSTITUTIONAL. 5 THE DECISION AND OPINION ISSUED IN THIS CASE CONFLICT WITH THIS COURT S DECISION AND OPINION IN MERCER v. STATE, 40 Fla. 216, 24 So. 154 (1898). 7 THE DECISION AND OPINION IN THIS CASE FURTHER EXPRESSLY AFFECT A CLASS OF CONSTITUTIONAL OFFICERS, THE STATE ATTORNEYS. 8 CONCLUSION 10 CERTIFICATES OF SERVICE & FONT 10 ii
TABLE OF CITATIONS Addington v. Texas 441 U.s. 48, 99 S. Ct. 1804 (1979) 6 Behr v. Bell 665 So. 2d 1055 (Fla. 1996) 9 Booker v. State 397 So. 2d 910 (Fla. 1981) 5-7 Chambers v. Mississippi 410 U.S. 284, 93 S. Ct. 1038 (1973) 6 Dobbert v. State 375 So. 2d 1069 (Fla. 1979) 5-7 Grice v. City of Kissimmee 697 So. 2d 186 (Fla. 5 th DCA 1997) 7 In re Anders Briefs 51 So. 2d 149 (Fla. 1991) 9 In re Beverly 342 So. 2d 481 (Fla. 1977) 6-7 In re Certification of Conflict in Motions to Withdraw Filed by Public Defender of the Tenth Judicial Circuit 636 So. 2d 18 (Fla. 1994) 9 In re Commitment of Cartwright 870 So. 2d 152 (Fla. 2d DCA 2004) 4,5-6 Jenny v. State 447 So. 2d 1351 (Fla. 1984) 9 Masters v. State 2007 WL 1450915 (Fla. 5 th DCA 2007) 1-3 Mercer v. State 40 Fla. 216, 24 So. 154 (1898) 5,7-8 Office of the State Attorne Fourth Judicial Circuit v. Parrotino 628 So 2d 1097 (Fla. 1993) 9 iii
Park v. City of West Melbourne 769 So. 2d 397 (Fla. 5 th DCA 2000) 7 Satz v. Perlmutter 379 So. 2d 359 (Fla. 1980) 9 State v. Bowman 437 So. 2d 1095 (Fla. 1983) 9 State v. Fitzpatrick 464 so. 2d 1185 (Fla. 1985) 9 Thomas v. State 599 So. 2d 158 (Fla. 1 st DCA 1992) 8 OTHER AUTHORITIES: Article V, Section (3)(b)(3), Fla. Const. 5 Section 394.9155(5), Fla. Stat. 5,7 Section 921.141(1), Fla. Stat. 6 Rule 9.030(a)(2)(A)(i), Fla. Rules of App. P. 5 Rule 9.020(2)(A)(iv), Fla.R. App. P. 7 iv
STATEMENT OF THE CASE AND FACTS The petitioner, Robert Masters, was the respondent in a civil commitment case initiated by the State under the Jimmy Ryce Act. The Fifth District Court of Appeal correctly sets out the procedural history of the case in its written opinion issued in this case: Before trial, Masters filed a motion in limine to limit the introduction of any documentary evidence containing hearsay under section 394.9155(5), Florida Statutes (2006), because... section 394.9155(5) violated the separation of powers principle and more specifically, Article V, Section 2 of the Florida Constitution. Masters v. State, 2007 WL 1450915, *1 (Fla. May 18, 2007). During trial, two experts testified for the State and one expert testified for Masters. All three experts were asked about three disciplinary reports Masters received while he was in prison. During the testimony of the State s first expert, psychologist Ted Shaw, Masters objected to inquiry about the disciplinary reports... The trial court overruled Masters objections. Dr. Shaw testified that two of the disciplinary reports were for incidents in which Masters was caught masturbating...in the prison s visiting park...[and] while watching a female corrections officer. Id. In her commitment order, the trial judge stated in pertinent part: While incarcerated, [Masters] received several disciplinary reports, three of which are relevant and involve masturbating in view of a female correctional officer and masturbating while looking at under age girls in the visiting park. Id. at *2. Masters initially objected to Dr. Shaw s testimony regarding the disciplinary reports... Masters failed to object to Dr. Jensen s or Dr. Sesta s testimony regarding the disciplinary reports. As the court relied upon all three doc- 1
tors testimony about the disciplinary reports, Masters should have objected to each doctor s testimony, not just one. Accordingly, Masters failed to preserve his argument that the court erred in allowing inadmissible hearsay evidence against him. Id. Dr. Jenkins was the State s second expert and Dr. Sesta was the defense expert. Masters at *2. Masters argues that section 394.9155(5) is unconstitutional because it purports to regulate, in a Jimmy Ryce proceeding, the procedure for admitting evidence, which is the exclusive responsibility of the supreme court under Article V, Section 2(a) of the Florida Constitution. Masters at *3. Masters constitutional challenge was expressly rejected in In re Commitment of Cartwright, 870 So. 2d 152 (Fla. 2d DCA 2004). In Cartwright, the second district held that section 394.9155(5) does not infringe upon the supreme court s rulemaking authority in procedural matters...because (1) section 394.9155 is a procedural provision that is intimately related to or intertwined with substantive statutory provisions of the Jimmy Ryce act; (2) in Florida Rule of Civil Procedure 1.010, the supreme court delegated to the legislature the authority to determine procedure in all special statutory proceedings... Id. at *3. Masters attacks Cartwright generally on the ground that section 394.9155(5) denies him the right of confrontation. The court in Cartwright rejected that argument, stating: The Confrontation Clauses of both the United States and Florida Constitutions are expressly limited to criminal prosecutions.... But see Jenkins v. State, 803 So. 2d (Fla. 5 th DCA 2001) ( Obviously section 394.9155(5) must be construed in light of the Fourteenth Amendment right of confrontation. Id. at *4. We are not bound by this language in Jenkins because it is dictum. Id. The District Court s decision affirming Mr. Masters s commitment was issued May 18, 2007. Timely notice invoking this 2
court s discretionary jurisdiction was filed in the District Court of Appeal on May 30, 2007. SUMMARY OF ARGUMENT The decision and opinion in this case, like the decision and opinion in In re Commitment of Cartwright, 870 So. 2d 152 (Fla. 2d DCA 2004), holds that Section 394.9155(5), Florida Statutes, is constitutional. This court has discretionary jurisdiction to hear the matter for that reason. This court should exercise that jurisdiction because the Legislature has exceeded its bounds by directing the trial courts in Jimmy Ryce Act cases how to analyze the evidence before them for admissibility, rather than telling them what evidence is relevant to a certain cause of action. An 1898 decision of this court and a 1992 decision of the First District Court are in conflict with this case on whether and when a hearsay point is preserved for appellate review. The issue is one of daily concern to the appellate courts and should be decided by this court. Finally, The District Court of Appeal held in this case that the States may proceed by introducing hearsay without showing its reliability. That holding affects a class of constitutional officers, the State Attorneys, since it directly affects how they may proceed in litigating cases under the Ryce 3
Act. This court should review the District Court s holding, as it has previously done when District Courts holdings have affected how the State Attorneys and Public Defenders litigate cases within the course of their statutory duties. ARGUMENT THE DECISION AND OPINION IN THIS CASE EXPRESSLY FIND SECTION 394.9155(5),FLORIDA STATUTES (2006) TO BE CONSTITUTIONAL. THE DECISION AND OPINION ISSUED IN THIS CASE CONFLICT WITH THIS COURT S DECISION AND OPINION IN MERCER v. STATE, 40 Fla. 216, 24 So. 154 (1898). THE DECISION AND OPINION IN THIS CASE FURTHER EXPRESSLY AFFECT A CLASS OF CONSTITUTIONAL OFFICERS. The decision and opinion in this case, like the decision and opinion in In re Commitment of Cartwright, 870 So. 2d 152 (Fla. 2d DCA 2004), holds that Section 394.9155(5), Florida Statutes, is constitutional. This court therefore has discretionary jurisdiction to hear the matter. Art. V, Section (3)(b)(3), Fla. Const.; Rule 9.030(a)(2)(A)(i), Fla. R. App. P. This court should exercise that jurisdiction; the Legislature has exceeded its bounds by directing the trial courts in Jimmy Ryce cases to upend their usual hearsay analysis, requiring them to admit hearsay in a jury trial unless the court rules it is not reliable. That legislative intrusion on this court s bailiwick tells the trial judges how to analyze evidence rather than 4
permissibly telling them which evidence is relevant as probative in a certain cause of action. Cartwright has weak legal underpinnings. It relies on this court s decisions in Booker v. State, 397 So. 2d 910 (Fla. 1981) and Dobbert v. State, 375 So. 2d 1069 (Fla. 1979). The statute construed in those cases provides that in capital sentencings, Any...evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements. Section 921.141(1), Fla. Stat., cited in Booker v. State, supra, 397 So. 2d at 918, and in Dobbert v. State, supra, 375 So. 2d at 1071-72. As the Second District Court noted in Cartwright, there is no analysis set out in either Booker or Dobbert to explain this court s conclusion that the capital sentencing statute does not violate separation of powers. The holdings in Booker and Dobbert, however, are not controversial: the statute simply provides that hearsay is admissible in penalty phase hearings provided the defendant s rights are protected by giving him a fair opportunity to rebut those statements. The latter clause is merely an acknowledgement that the right to due process of law supersedes any statute that unconstitutionally purports to admit or exclude hearsay. See Chambers v Mississippi, 410 U.S. 284, 298-303, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). 5
Civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979). Accordingly, the principle of Chambers applies to civil commitment cases. Further, in In re Beverly, 342 So. 2d 481 (Fla. 1977), this court held that in civil commitment cases [t]he seriousness of the deprivation of liberty...make[s] imperative strict adherence to the rules of evidence. 342 So. 2d at 489. Section 394.9155(5) purports to diminish, rather than recognize, the rights of respondents in Ryce Act hearings. The statute directs the trial courts to perform a weighing analysis as to each item of hearsay propounded by the State in a Ryce Act trial, and to admit the evidence unless the court finds it unreliable. No such burden is placed on the courts, or on the rights of the person proceeded against, by the capital sentencing statute. Booker and Dobbert therefore do not dispose of the question before the courts in Cartwright and in this case. Civil litigants whose important rights are at issue have the right to confront their accusers as part of their right to due process of law. Park v. City of West Melbourne, 769 So. 2d 397 (Fla. 5 th DCA 2000) (where deprivation of rights is great enough to warrant due process hearing, wronged person has the right to confront adverse witnesses at the hearing); Grice v. City of Kissimmee, 697 So. 2d 186 (Fla. 5 th DCA 1997) (same). * The decision and opinion in this case are further in con- 6
flict with this court s decision and opinion in Mercer v. State, 40 Fla. 216, 24 So. 154 (Fla. 1898). This court therefore has discretionary jurisdiction pursuant to Rule 9.030(2)(A)(iv), Florida Rules of Appellate Procedure. In Mercer this court held The defendants objected to the evidence of only one or two of the first witnesses offered by the state to sustain the character of its other witnesses for truth and veracity and honesty, but several other witnesses were subsequently offered by the state, who testified, without objection, to the good character of the same state's witnesses for truth and veracity and honesty. It is contended for the state that this failure on the part of the defendants to extend their objections to all the sustaining testimony was a waiver of the objections made to the first witnesses giving the same evidence, and cured the error, if any, in the admission of that specifically objected to. Many authorities sustain this contention. But we are of opinion that the rule founded in the soundest reasoning is announced in those cases that hold that when an objection to the introduction of incompetent evidence has been once properly taken, and overruled by the court, it is not waived, although the same evidence may have been subsequently admitted, through other witnesses, without objection. Mercer, 40 Fla. at 234-35, 24 So. at 159 (cites and punctuation omitted). Accord Thomas v. State, 599 So. 2d 158, 160 n. 1 (Fla. 1 st DCA 1992), citing Mercer. In this case, the District Court held that the petitioner waived consideration of his hearsay point by failing to object to it when a second State witness and a defense witness testified. The decisions in Mercer and Thomas 7
are patently in conflict with this case on this point, and this court should accept jurisdiction to resolve the perpetually arising issue what procedure is adequate to preserve evidentiary issues for review. * Finally, The District Court of Appeal held in this case that the States may proceed by introducing hearsay without showing its reliability. That holding affects a class of constitutional officers, the State Attorneys, since it directly affects how they may proceed in litigating cases under the Ryce Act. This court should review the District Court s holding, as it has previously done when District Courts holdings have affected how the State Attorneys and Public Defenders litigate cases within the course of their statutory duties. See In re Certification of Conflict in Motions to Withdraw Filed by Public Defender of the Tenth Judicial Circuit, 636 So. 2d 18 (Fla. 1994) (Public Defenders filings affected); In re Anders Briefs, 581 So. 2d 149 (Fla. 1991) (Public Defenders filings affected); Jenny v. State, 447 So. 2d 1351 (Fla. 1984) (State Attorneys subpoena power affected); State v. Bowman, 437 So. 2d 1095 (Fla. 1983) (State Attorneys affected by holding that substituted agency as party in interest). See also Behr v. Bell, 665 So. 2d 1055 (Fla. 1996) (Public Defenders affected by ruling on 8
standby counsel status); Office of the State Attorney, Fourth Judicial Circuit v. Parrotino, 628 So. 2d 1097 (Fla. 1993) (State Attorneys affected; sovereign immunity case); State v. Fitzpatrick, 464 So. 2d 1185 (Fla. 1985) (State Attorneys affected by disqualification ruling); Satz v. Perlmutter, 379 So. 2d 359 (Fla. 1980) (State Attorneys affected by holding regarding end-of-life decisions). Since the State Attorneys duties are directly affected by this case it is this court, not a District Court of Appeal, that should decide the matter. 9
CONCLUSION This court should exercise its discretionary jurisdiction in this matter for the three reasons set out above. Respectfully submitted, By: NANCY RYAN ASSISTANT PUBLIC DEFENDER Florida Bar No. 765910 444 Seabreeze Blvd., Suite 210 Daytona Beach, Florida 32118 Phone: 386/252-3367 COUNSEL FOR PETITIONER CERTIFICATE OF SERVICE A true and correct copy of the foregoing has been served on Assistant Attorney General Douglas Squire, of 444 Seabreeze Blvd., 5th Floor, Daytona Beach, FL 32118, by way of the Attorney General s in-basket at the Fifth District Court of Appeal, this day of June, 2007. Nancy Ryan CERTIFICATE OF COMPLIANCE The undersigned certifies that this brief complies with Rule 9.210(2)(a), Florida Rules of Appellate Procedure, in that it is set in Courier New 12-point font. Nancy Ryan 10