Fort Pierce Appeal Cases

                                 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

                                   FOURTH DISTRICT, P.O. BOX 3315, WEST PALM BEACH, FL 33402

JUAN JOSE FARIAS,                                                                                                                                                                                                         

                 Appellant,                                                                                               CASE NO.: 4D08-406

                                                                                                                                 L.T.  No.:562004CF3201A

vs.

STATE OF FLORIDA,

Appellee.

_______________________/

                                                                 INITIAL BRIEF OF APPELLANT

On appeal from the Circuit Court of the Nineteenth Judicial Circuit of Florida, in and for St. Lucie County.

                                                                           (Criminal Division)

                                                                                                                  JONATHAN JAY KIRSCHNER, ESQUIRE

                                                                                                                  Jonathan Jay Kirschner, Esq.& Associates, LLC

                                                                                                                  200 South Indian River Drive, Ste. 200

                                                                                                                  Fort Pierce, FL 34950

                                                                                                                  Phone: 772.489.8501

                                                                                                                  Fax: 772.489.8511

                                                                                                                  Email: trcoastlaw@aol.com

                                                                                                                  Counsel for Appellant

                                                    TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS..............................ii

TABLE OF AUTHORITIES...........................................iv

PRELIMINARY STATEMENT...........................................1

STATEMENT OF THE CASE AND FACTS.................................2

SUMMARY OF ARGUMENT............................................32

ARGUMENT.......................................................33

I.  THE TRIAL COURT ERRED TO THE SUBSTANTIAL

PREJUDICE OF THE DEFENDANT IN ADMITTING STATE’S

EXHIBIT #5, A PHOTOGRAPH OF THE COMPLAINING WITNESS,

TAKEN DURING HER PHYSICAL EXAMINATION, AND AFTER

THE INCIDENT OCCURRED.....................................33

II.  THE TRIAL COURT’S ADMISSION OF OUT-OF-COURT

HEARSAY STATEMENTS PURSUANT TO CH.90.803(23), FLA.STAT.

(2003) SUBSTANTIALLY PREJUDICED THE DEFENDANT, AND

DEPRIVED HIM OF A FAIR TRIAL..............................38

III. THE TRIAL COURT ERRED TO THE SUBSTANTIAL

PREJUDICE OF THE DEFENDANT BY PERMITTING THE

PROSECUTION TEAM TO REPEATEDLY ENGAGE IN ACTS

OF PROSECUTORIAL MISCONDUCT...............................43

CONCLUSION.....................................................47

                                                                                         TABLE OF AUTHORITIES

Beagles v. State, 273 So.2d 796 (Fla. 1973)....................36

Brown v. State, 787, So.2d 229 (Fla. 2^nd DCA 2001)..............47

Crawford v. Washington, 541 U.S. 36, 124 S. Lt. 1354,

 158 L. Ed. 2d 177 (2004)............................41

Dept. Of Health & Rehabilitative Services

v. M.B., 701 So.2d 1155 (Fla. 1997)................42-43

Izquierdo v. State, 724 So.2d 124, 126 n.2

 (Fla. 3^rd DCA 1998)..................................45

Knowles v. State, 632 So.2d 62 (Fla. 1993).....................45

Leach v. State, 132 So.2d 329 (Fla. 1961)......................36

McIntosh v. State, 941 So.2d 1, 4-5 (Fla. 2^nd DCA 2006).........47

Mosley v. State, 569 So.2d 832 (Fla. 2d DCA 1990)..............45

Rosa v. State, 412 So.2d 891 (Fla. 3^rd DCA 1982)................37

State v. Moore, 485 So.2d, 1279, 1281 (Fla. 1986)..............44

Thomas v. State, 59 So.2d 517 (Fla. 1952)......................37

FLORIDA STATUTES

Ch.800.04(5)(b), Fla. Stat. (2003)..............................2

Ch.90.803(23), Fla.Stat.(2003).................2,3,26,32,38,42,43

Ch.90.803(23)(a), Fla.Stat.(2003)...........................38,43

Ch.90.803(c), Fla.Stat.(2003)...............................41,43

FLORIDA CONSTITUTION

Article I, Section 9........................................26,43

Article I, Section 16.......................................26,43

UNITED STATES CONSTITUTION

Amendment 5.................................................26,43

Amendment 6.................................................26,43

Amendment 14................................................26,43

                                                                                                                         PRELIMINARY STATEMENT

Appellant was the Defendant and will be referred to in this brief as Appellant, Defendant or by name.  The State was the prosecuting authority and will be referred to as State, government, or Appellee.

The Record on Appeal consists of 9 volumes of record pleadings and 4 volumes of transcripts.  The record pleadings will be referred to as “R” followed by the page and line numbers.  The transcript beginning in Volume 1 will be referred to as “TR” followed by the page and line number.

                                                                                                          STATEMENT OF THE CASE AND FACTS

This appeal is from a Final Judgment of Conviction and Sentence entered by the Circuit Court of the Nineteenth Judicial Circuit in and for St. Lucie County, Florida, adjudicating the Defendant, Juan Jose Farias, guilty of one count of lewd or lascivious molestation - offender over 18, victim under 12, a violation of Chapter 800.04(5)(b), Fla.Stat. (2003).  The Defendant was sentenced to 15 years in the Department of Corrections.

This case was unusual, difficult, extraordinary and “close” in a number of aspects.  Although the alleged law violation occurred on June 24^th or June 25^th, 2004, the case did not proceed to trial until November 15, 2007.  During the three and one-half (3½) years the case was in a ‘pre-trial’ status, as well as during the trial, the matter was vigorously litigated on both sides, and on a variety of levels.  In addition to voluminous motion practice and introduction of numerous exhibits by both parties, this case featured an extensive “child hearsay” hearing^[1].  The child hearsay hearing (hereinafter “CH”) began on April 25, 2006, and concluded on October 16, 2006. 

At the conclusion of the trial, the trial court stated:

This has been a very unusual and difficult case.  As Mr. Farias said I watched him come to docket calls monthly for several years.  Always one of the first to be here.  Not your typical defendant.  Appears to be well liked, responsible, intelligent, which always kind of created the inquiry as to why in the world would someone like this do something like this.  But on the other hand you have a precocious, intelligent, innocent 7 year old which also would induce the question well, why in the world would she ever say that this happened if it didn’t.  And I’m obviously in a position where I can’t please everybody.  I do think that lewd or lascivious molestation is a horrible crime.  It’s a very serious crime punishable by up to 30 years, but I think some offenders and some offenses cry out for the maximum, I don’t think Mr. Farias does...I’m also noting for the record that Mr. Farias has every right to continue to profess his innocense and pursue his appellate remedies so I’m - - this sentence that I’m imposing is not the least bit affected by - - by the fact that he hasn’t admitted his guilt and done things that would otherwise conflict with his present profession of innocence. [emphasis added](TR-594/5-25;595/1-4)

To reiterate, this was an unusual case.

The trial lasted approximately 4 days.  At trial, the State presented testimony by 6 witnesses, and introduced 7 exhibits.  (See Index to Volumes I, II and III of Transcript). 

The Defendant presented testimony from 6 witnesses, and introduced 8 exhibits.  (See Index to Volumes I, II and III of Transcript).

Prior to trial, Counsel for the defense requested permission from the Court to have a standing objection to all Ch. 90.803(23) evidence that had been allowed pursuant to the “CH” hearing referenced above.

                                                                                                                                              THE TRIAL

In opening statement, the Assistant State Attorney’s first statement to the jury alluded to the allegation that the Defendant touched J.L.’s “7 year old vagina” (TR 56/22-23).  Subsequently in opening statement, the State alluded to J.L.’s physical examination in the hospital on the day she made the allegation, and stated “...with her legs naked spread wide open”.  (TR57/20-21).

Again later in the opening, the government lawyer stated “...which I’m sure for a 7 year old girl must have been traumatizing”. (TR57/21-22).

In the defense opening statement, Defendant’s counsel explained to the jury that a re-enactment, created by the defense, would show that the incident, as it was alleged by J.L., was not physically possible. (TR60/16-17).

The first witness called was the complaining witness, J.L.

After identifying Pamela Farias (the Defendant’s daughter) as her friend, J.L. was asked “Were you two close”? J.L. responded by stating “Too close to what”? (TR66/12-13).

When asked on direct examination if J.L. remembered June 24^th and June 25^th (the dates of the alleged incident) she responded “I think I do”.  (TR65/1-3).

J.L. claimed the two girls watched a movie while spending the night at Pamela Farias’ house. (TR67/3).  After the movie they fell asleep.  (TR67/12-13).  Subsequently J.L. awoke, but she had no idea of what time it was when she got up. (TR67/19-20).

J.L. claimed Juan Jose Farias entered the children’s bedroom. (TR70/9-10).  J.L. claimed the Defendant had his daughter Pamela in his arms, and that he sat his daughter down on the bed, and that the Defendant was located “at the end of the bed bent over”.  (TR71/16-18).

J.L. then claimed the Defendant “Stuck his arm under the quilt. He stuck his hand into my shorts and his finger into my underwear and stuck his finger into my vagina where the sensitive part is and wiggled his finger around”. J.L. was asked if the Defendant had touched her “by the lips or inside, do you remember”?[emphasis added] (TR71/18-21). 

J.L. answered “Right by the lips” [emphasis added] (TR72/4-6).

Shortly thereafter, J.L. was asked, “Which part did you say he touched near the lips”? J.L. answered, correcting the Assistant State Attorney asking the question, as well as contradicting the answer she had just made several seconds earlier, by stating “In the lips” [emphasis added].

J.L. then claimed Mr. Farias put his finger in the lips where the sensitive part is and wiggled it around for approximately a minute”. [emphasis added](TR72/18-21).

J.L. then claimed that Mr. Farias “laughed”. (TR72/22-24-73/1).

J.L. testified the Defendant placed a pillow on J.L.’s chest. (TR73/4-6).

J.L. then testified she went back to sleep. (TR74/11-12). She later stated “I woke up and got dressed and then I ran out the door to my grandma’s house”. (TR74/25-75/1).

J.L. then returned to her grandmother’s house, which is located across the street from the Farias household.  Upon arriving at her grandmother’s house, she told her grandmother what she claimed had happened. (TR75/1-9).  Several days later, J.L. told Detective LaGrega, of the Port St. Lucie Police Department (hereinafter “LaGrega”) her version of the incident. (TR75/11-13).

J.L. does not remember whether she told LaGrega that Defendant touched J.L. underneath or on top of her panties. (TR7514-16).    J.L. claimed to never have had any sort of problems, prior to the night of the incident, with Mr. Farias. (TR75/24-25-76/1-2).

After the night of the claimed incident, and prior to the interview with LaGrega, J.L. wrote a letter (hereinafter “THE LETTER”) memorializing her recollection of the incident.  (TR76/6-9). 

In THE LETTER, J.L. explains she crossed out a letter “V”^[2] in THE LETTER. (TR77/12-13).^[3]

J.L. was asked the following question: “Was Pamela in the bed next to you at the time this happened”? J.L. answered “Can you be more specific”? (TR80/5-7).  After counsel then asked approximately a dozen predicate questions, (presumptively in an attempt to be more “specific”) J.L. acknowledged that Pamela Farias was in the bed next to her during the time of the incident. [emphasis added](TR80/8-25;81/1-25).

J.L. denied having breakfast with Pamela Farias on the morning after the incident. (TR84/16-19). J.L. then denied recalling her sworn deposition testimony, wherein she stated she in fact did have breakfast with Pamela Farias, at the Farias household, on the morning after the incident prior to her leaving the Farias household. [emphasis added](TR84/25; 85/1-12).

Concerning THE LETTER, J.L. again acknowledged she had crossed out the “V” in THE LETTER, yet she denied that at the prior hearing she, under oath, claimed that she could not remember having made that change to the document.  J.L., when confronted with her sworn prior testimony (wherein she asserted she could not remember having made the change) at trial claimed she neither could recall the prior testimony nor even have her memory refreshed by the hearing transcript. (TR86/24; 88/1;90/1-3)^[4]

J.L. ultimately changed her sworn testimony yet again, and conceded that at the previous hearing, she could not remember crossing out the “V”. [emphasis added](TR90/7-10)

J.L. next denied remembering being questioned by LaGrega in relation to J.L.’s terminology for certain body parts. (TR90/11-15)

J.L. then was asked whether she had “seen that interview recently” (the videotaped interview between J.L. and LaGrega). J.L. responded by asking defense counsel “What do you mean by see it”? (TR90/16-17).  J.L. then conceded that she watched the LaGrega/J.L. interview on the night before she took the witness stand at trial. [emphasis added](TR90/18-23)

J.L. similarly conceded her trial testimony concerning her use of the word “pee pee” constituted a change from her testimony in the LaGrega interview, that she preferred to use the word “private” when referring to her vaginal area. (TR91/8-25; 92/1-14)

J.L. then reasserted that she did not have breakfast with Pamela at Farias’ house, but rather “went straight home”. (TR93/8-12).

J.L. testified she recalls going to the hospital on the day following the evening she made the allegation, but she did not know what a doctor’s “examination” is. (TR93/10-25; 94/1)

While testifying on redirect examination, J.L. stated “...he stuck his hand under the quilt and his finger into my underwear and he put it in the sensitive part and wiggled it around”. (TR98/1-4)

J.L. then recalled telling LaGrega that Mr. Farias touched her “...on top of ...underwear”.  J.L. testified she told LaGrega that “...because I thought he did”. [emphasis added](TR98/5-11)

After the Court inquired on behalf of the jury, as to what kind of movie “Stitch” was^[5], J.L. responded “Stitch” was a “kid’s movie”. (TR98/5-11)

The State then initiated a follow-up question:

Q:                  “And ‘Stitch’, the kid’s movie, do you know is there any other character in the title”?

J.L. replied:                                             

A:                   “No, no ma’am”. (TR100/16-18)

In the State’s initial presentation of J.L.’s testimony earlier that trial morning, J.L. testified the title of the movie was in fact “Lilo and Stitch”.  (TR67/4-5)

The next witness tendered by the State was Diane Loomis, J.L.’s grandmother. Diane Loomis testified that J.L. and Pamela Farias were “best friends in the whole world”. (TR103/2-3)

J.L. had breakfast at her grandmother’s house, to wit: a bowl of cereal. (TR106/12-14)

In response to a juror question, Ms. Loomis testified that J.L. ate all of her breakfast at her grandmother’s house. (TR108/14-15)

The next witness tendered by the State was Michelle Denmon.  Michelle Denmon is J.L.’s mother, and J.L. was born on October 5, 1996.  (TR110/14-15)

After J.L. reported the incident, J.L. was taken to the hospital for an examination. (TR113/7-8).  The State then attempted to lay a predicate for introducing State’s Exhibit #5, which was a series of photographs of J.L. being examined at the hospital. (TR114/6-25).  The Defendant objected to introduction of State’s Exhibit #5, based on three (3) grounds:

1)  insufficient predicate;

2)   relevancy;

3)   in the event the Court deemed the photographs relevant, that the prejudicial impact of introduction of the photographs far outweighed any evidentiary value in terms of relevancy. 

(TR115/4-13)

The Court inquired of the State, “What is the relevance”?  (TR115/14)

The State gave the Court two rationales for attempting to introduce the photographs of the physical examination of J.L.: first, that the doctor and nurse disagreed whether any “redness” in J.L.’s vulva area in fact existed^[6], and second, the Assistant State Attorney’s stated, “I do think it’s relevant, maybe not for all the pictures, maybe we’ll just do one, but I do think it’s relevant to show the jury what she went through as part of her examination”. [emphasis added](TR115/15-25)

Defense counsel responded, reminding the Court it already entered a Motion In Limine excluding any reference to Nurse Burtelson’s observations, and further reminding the Court that the doctor’s testimony would be that the doctor observed “no internal or external injury”.  Counsel for Defendant concluded, “...the State is seeking to put the photographs into evidence in order to ask the witnesses who are not here to ask the jurors who are not experts to find something the experts could not find.  These pictures are inflammatory...”  [emphasis added](TR116/1-11)

The Court then ruled. “I don’t find what she went through is material to whether or not this defendant committed the crime. So absent some evidence making these relevant now I’m going to sustain the objection”.  [emphasis added](TR116/12-15)

After the Court’s ruling on the admissibility of the photographs, counsel for the State continued arguing the objection the Court sustained and once again argued the photos were relevant to show “...what the child went through” as the photos would somehow act to rebut what the State suspected would be defense’s position that J.L. was “...making it [the story] up”.  (TR116/16-25)

Following the State’s additional argument, the trial court elected to “...reserve on it...[presumptively, the objection] for a while”.  (TR117/5-7)

Mrs. Denmon then testified J.L. spontaneously provided “THE LETTER” a “...couple days later”, stating J.L. told her, “mommy, we can give this to Detective LaGrega”. (TR118/11-24)

During cross-examination, Mrs. Denmon, after being confronted with THE LETTER, as well as her prior sworn testimony at the 4/25/06 “CH” hearing, ultimately conceded that she previously gave sworn testimony that, at the time of the incident, J.L. had used the word “private”,^[7] as opposed to the word “vagina” which J.L. presumptively started to write, and then crossed out, on THE LETTER. (TR122/5-25; 123/1-25; 124/1-18)

The State next called David Roger Leigh, Records Custodian from the St. Lucie Medical Center.  After his testimony, relating solely to records identification, the State called Dr. Michael Lustgarten, a physician and urologist, who testified he became involved with the case because his son is an Assistant State Attorney in Stuart, Florida. (TR141/15-17)^[8]

Dr. Lustgarten (hereinafter “LUSTGARTEN”) had testified as an expert on one prior occasion, wherein his son had likewise procured the doctor’s involvement in a criminal case.  (TR141/18-20)

“LUSTGARTEN” examined State’s Exhibit #8, a lab report of the initial examination of J.L., from the St. Lucie Medical Center on 6/25/04. (TR145/10-12;R354).  “LUSTGARTEN” described the 6/25/04 urinalysis as “abnormal”, due to presence of “trace bacteria”, and presence of “5-10 red blood cells (hereinafter “RBC”), and 20-30 white blood cells (hereinafter “WBC”)”. (TR146/6-23; 147/1-2)

“LUSTGARTEN” also testified that different laboratories have different values for what constitutes “normal” versus a “abnormal” results.  “LUSTGARTEN” in sum concluded that one of the causes of J.L.’s “abnormal” urinalysis could have been trauma, and that it would be unlikely for a healthy child to have an abnormal urinalysis.  (TR150/21-22)

On cross-examination, “LUSTGARTEN” stated he would be surprised to learn that the St. Lucie Medical Center does not consider a white blood count to be critical unless it is over 20 observed white blood cells per high powered field. [emphasis added] (TR161/16-20)

“LUSTGARTEN” conceded the 4/26/04 lab report showed “negative” for blood, but also showed presence of red blood cells in microscopic examination, and that these results could be contradictory.  (TR162/1-16)^[9]

“LUSTGARTEN” likewise concluded that there exist many types of trauma that would cause an abnormal urinalysis, including trauma sustained from falling off a bicycle, falling off of a merry-go-around, or falling off of a swing, etc. (TR166/11-25)

“LUSTGARTEN” stated he had ordered a second urinalysis when he became involved in the case.^[10] (TR169/1-7)

“LUSTGARTEN” then concluded that the second urinalysis, taken nearly 3 years subsequent to the one taken at the time of the incident, also tested positive for WBCs, as well as protein. [emphasis added](TR169/1-7)

The trial court then sua sponte stated, “About those pictures.  I’m going to permit you to enter one.^[11]  And I think the relevance is, I think it does tend to show that someone would not subject themselves to that so I think there is some relevance to them.  But I think all of those pictures is a bit over kill.” [emphasis added]  TR183/16-20)

The Court then ruled, “This will be over your objection, Mr. Garland.  You can agree on which photo”.  (TR183/23-24)

Defense counsel then renewed the objection, stating “...we object because she [J.L.] wouldn’t have known that [the physical examination] was part of the process when she made the complaint”. [emphasis added] (TR183/25; 184/1-2)

Sheila LaGrega (hereinafter “LAGREGA”) is the Port St. Lucie Police Department detective who investigated J.L.’s allegation.  At the time of trial, she had been a law enforcement officer for approximately eight (8) years.  At the time J.L.’s allegations were made, “LAGREGA” had been a detective for one and one-half (1½) years.  (TR193/10-19).

“LAGREGA” had no specialized training in the investigation of “these types of cases”. (TR193/12-14).  “LAGREGA” videotaped her second interview with J.L. (TR196/19-25;197/1)

On the videotaped interview, J.L. stated the following:

1)   “Victoria” is her best friend. (TR198/11-13)

2)     The area between her legs is her “private” area. (TR201/9-11)

3)     “He stuck his finger into my underwear” (TR205/15-16)

4)      The bedroom was completely dark. (TR207/6-8)

5)      “He stuck his finger into my private”. (TR207/19-20)

6)       “Defendant put his finger under J.L.’s clothes”. [emphasis added](TR207/24-25;208/1)

7)       “On top...it was on top”[of her clothes]. (TR208/2-5)

8)        The Defendant was standing “on the end of the bed”. (TR208/12-15)

9)         Defendant flipped J.L. over. (TR209/9)

10)      “Defendant always stayed at the end of the bed”. (TR209/21-23)

11)       Defendant touched J.L. on the top of her underwear. Never underneath her underwear, just on top. (TR210/7-10)

12)       “Pamela Farias never woke up”. (TR211/17-19)

13)        J.L. woke Pamela up the next morning. (TR213/6-7)

14)        The room was not always dark. (TR214/20-21)

15)         Defendant was in the bedroom a total of 5 minutes. (TR217/4-6)

16)         Defendant came into the bedroom two times. [emphasis added](TR217/11-13)

17)         J.L. was still awake the second time. [emphasis added](TR218/6-8)

18)         J.L. doesn’t know what Defendant did the second time. [emphasis added] (TR220/1-3)

19)         Defendant touched J.L. the second time. [emphasis added](TR220/4-5)

20)         Defendant touched J.L.’s privates the second time. [emphasis added](TR220/8-10)

21)          Defendant touched J.L.’s privates on top of her clothes the second time. [emphasis added] (TR220/11-13)

22)          The second time Defendant put his hand under J.L.’s clothes. [emphasis added](TR221/24-25; 222/1)

23)         “LAGREGA” talked with Defendant twice. (TR224/20-24)

24)         The second interview with Defendant was videotaped. (TR229/5-6)

Ultimately^[12] “LAGREGA interviewed Mr. Farias.  That interview was tape recorded, and the Defendant was read, and knowingly waived his Miranda rights.  This was a voluntary statement; the Defendant was not in custody at the time, though the interview took place at the Port St. Lucie Police Department. (TR234/13;235/23).

In the interview, Farias claimed that upon returning home on the night of the incident, he found his daughter asleep in his bedroom.  (TR264/2-4).  Farias picked up his daughter and returned her to her bedroom, placing her next to J.L. (TR264/6-18)

The Defendant was concerned that J.L. was sleeping too close the nightstand, and that she might hit her head, so he repositioned her closer to Pamela’s side of the bed.  (TR264/20-25;265/1-14)

Farias did not feel as though he was intoxicated. (TR267/10-11).

Farias denied touching J.L. inappropriately. (TR286/14-15)

On cross-examination, “LAGREGA” conceded there was nothing essentially wrong with “scooting” a child over in a bed to prevent them from falling off the edge.  (TR297/1-4).

“LAGREGA’s” testimony concerning J.L.’s height at the time of the incident changed significantly from her October 16, 2006 testimony (when she estimated the child’s height at “30 some odd inches”), and her trial testimony (where she estimated J.L.’s height at the time of the incident, at 4½ feet). (TR303/25;305/15)

“LAGREGA” testified that Farias agreed to give the police fingernail scrapings.  (TR310/13-16). 

Then “LAGREGA” conceded that in reality, she really did not need fingernail scrapings, as she did not ask for them until some four (4) days after the incident, and such evidence would not be probative in a “touching” case. (TR311/11; 312/15)

At that point in the trial, State’s Exhibit #5 was admitted into evidence over defense objection. (TR319/24-25)

The State rested, and the defense motion for judgment of acquittal was denied. (TR320/13-25; 321/1)

The defense first called Dr. Cariello, who is an emergency room physician at the St. Lucie Medical Center. (TR322/3-4)

Dr. Cariello examined J.L. on the day she made the allegation. His examination found:

–- no tenderness in the vaginal area.

–- no evidence of blood.

–- no evidence of edema(swelling).

–- no evidence of erythema (redness).

–- no evidence of discharge.

–- no evidence of laceration.

Dr. Cariello identified medical records of his examination of J.L., which were admitted as State’s Exhibit #8. (R343-354).  Page 6 of the medical records (R349) indicates the patient reported the incident to have occurred at 10:00 pm. the preceding evening. [emphasis added](TR325/3-15)

The State, after going into detail about the specifics of a physician’s examination of a child, including the ‘rape kit’ portion of that examination, asked the physician, “Now is this generally something that people who are getting this examination done is this fun for them”? [emphasis added] (TR331/21-22)

The State then published the photograph of J.L. being examined by Dr. Cariello, the previously discussed “Exhibit #5”. [emphasis added] (TR332/3-4)

The defense then called Antana Nadarsheth, who is a lab technician with 23 years of experience at St. Lucie Medical Center.  (TR334/10-18).  Ms. Nadarsheth was the lab technician who performed the screening urinalysis of urine provided by J.L. (State’s Exhibit #8, which is found at R354). (TR334/10-18; 335/10-15).  The lab technician conceded the “trace” amount of bacteria found in urine was in an amount less than the least amount that is reportable pursuant to lab protocols. [emphasis added]. (TR334/1-7)

Another anomaly reported was the presence of 20-30 “WBCs”.  The technician testified that the presence of 20 “WBCs” was the minimum level that could be classified as “critical”, i.e., worthy of further investigation and/or testing.  (TR316/1-7)

The defense then called Juan Jose Farias, who authenticated  a ‘cleaned-up’ and enhanced version of the videotape of “LAGREGA” interviewing J.L. 

Farias testified that he is an internet course developer for Indian River Community College (now Indian River State College). (TR359/18-20).  Farias testified he has ten (10) years in television and film production experience, and has used his  television, and audio/visual/digital experience to assist the St. Lucie County Sheriff’s Office and the Port St. Lucie Police Department with cases in the past.  (TR359/25;360/4)

Farias is familiar with digitally improving sound quality and videotape quality. (TR360/5-8).  Juan Jose Farias made a digital copy of the “LAGREGA” interview of J.L., and then improved its quality. (TR360-361).  The improved digitally enhanced video was admitted without objection as Defendant’s Exhibit #9.

The defense then called Dr. Stefan Rose.  Dr. Rose is a physician practicing forensic medicine, and has been qualified as an expert throughout Florida as an expert in civil and criminal cases.  He is a teacher and researcher as well.  (TR313/6-11)

Dr. Rose opined that the urine sample collected in the instant case was not collected properly, resulting in it being scientifically unreliable.  (TR363/18-19;23-25).  The sample was not scientifically reliable due, in part because the sample relied upon by the State is simply a “screening test”. The specimen was sent for a more precise “confirming test”, which confirmed that there existed no urinary tract infection. [emphasis added] (TR364/12-21)

The defense then called Bradley Perron (hereinafter referred to as “PERRON”), a Private Investigator with 16 years of experience.  (TR378/2-3).  “PERRON” testified that he had prepared a transcript of the enhanced video of the “LAGREGA” interview of J.L., which incorporated non-verbal answers made by J.L. during the course of the interview, e.g., a nod of the head was recorded as a “yes”, and a shaking of the head from side to side was interpreted as a “no”. (TR379/11-381/6)

The jury then viewed the “LAGREGA” interview of J.L. with the assistance of the transcript prepared by “PERRON”.  (TR382/8-408/22)

“PERRON” then testified as to designing and performing a ‘re-enactment’ of the incident based upon J.L.’s claims as buttressed by the enhanced video and the detailed transcript. (TR409/1-22)

The purpose of designing and preparing the re-enactment was to determine, given the Defendant’s height, and the positioning of J.L. (as she described it) on the bed during the incident, if Farias could possibly reach J.L. from the end of the bed, where J.L. had testified that Farias had remained throughout the incident. (TR409/22-24)

Based upon the re-enactment, “PERRON” concluded that it was unlikely that the Defendant could physically have reached and made contact with J.L. (TR416/23-25;417/1-2)

The defense then called Pamela Farias, who is Juan Farias’ daughter.  (TR438/18-22)

Pamela Farias testified that J.L. and Pamela had watched television, but did not watch a movie on television. (TR441/3-4)

Pamela stated that J.L. insisted on eating ice cream sometime around midnight. (TR442/6-11).

Pamela went to her father’s room, and he ultimately carried her back to the bedroom while J.L. was sleeping. (TR443/1-7)

J.L. was in a sound sleep, unable to be awakened when Juan Farias entered the room. (TR442/13-17)

Mr. Farias placed his daughter on the bed next to J.L.  J.L. was about to fall off the bed, as she was positioned close to the edge, so Pamela’s father then “...picked her up, put her down.  Put the pillow in between me [his daughter] and J.L. and then left.  TR443/8-12)

The State elected not to cross-examine Pamela Farias.

The defense then called Maria Lecaro, who is Juan Farias’ mother. (TR445/1)

On June 24, 2004, Mrs. Lecaro was living at 609 SW Carter Avenue, in Port St. Lucie, with her son, Juan Farias, her granddaughter and her husband.  (TR445/3-9)

The night of J.L.’s allegation, Mrs. Lecaro gave ice cream to J.L. and Pamela sometime around midnight.  (TR447/3-9)

Mrs. Lecaro heard her son return home (Juan Farias had left the house at approximately 8:30 p.m.) at approximately 2-2:30 a.m. on June 25^th.  (TR447/10-16)

There was no evidence presented at trial that Juan Jose Farias was present in the house at any time when he left the house between 8:30-9:30 p.m. on 6/24/04, and when he returned at approximately 1:30 -2:30 a.m on 6/25/04.  State’s Exhibit #8 states J.L. reported the incident occurred at 10:00 p.m. on 6/24/04 - - - when the Defendant, by all accounts, was not home.

The next morning Maria Lecaro observed Pam see J.L. off early in the morning, and J.L. returned to her grandparents’ home across the street. (TR447/25-448/1-3)

Since the incident, Maria Lecaro has seen J.L. visiting her grandparents’ house across the street “many times”.  At those times, J.L. does not seem afraid, and she plays normally. (TR448/4-13)

The defense next called Carlos Lecaro, who is Juan Farias’ father, and who also lived with his wife and son on June 24, 2004.

At 6:30-6:45 on the morning of June 25, 2004, he checked on Pamela and J.L. and noticed that they were sleeping next to each other uneventfully.  (TR451/13-16)

Pamela Farias was then recalled.  She testified that on the morning of June 25, 2004, J.L. woke Pam up from sleep. J.L. told Pamela “I have to go now”.  When J.L. left, she told Pamela, “I’ll see you later and we can play again”.  (TR453/1-11)

Juan Farias then testified.

Farias left his house at approximately 8:30 on the night of the allegation. (TR456/3-5)

The Defendant shared a pitcher of beer with approximately five (5) friends at the Ale House, and ate some potato skins.  The Defendant had about three (3) beers at the Ale House.  (TR457/1-10)

Mr. Farias consumed approximately 6-7 beers during the course of the night, over approximately 4 hours, while eating and dancing at two different commercial locations.  Farias paced himself while he was drinking, because he knew he would have to drive home. (TR458-460)

Upon arriving home, Mr. Farias noticed his daughter, Pam, was not in her room.  He found her in his own bedroom, and carried her back to her bedroom. (TR462/7-15)

The Defendant noticed J.L head was near the edge of the bed, and he told her “Jade, move...move over”.  J.L. did not respond, so the Defendant proceeded to “scoot her over”. (TR462/17-20)

The Defendant ‘scooted’ J.L. by putting his hands underneath her legs and back and pushing her across the bed towards where his daughter, Pamela, was sleeping.  (TR462/21-25)

Mr. Farias did not touch J.L. inappropriately in any way. (TR463/4-6)

The Defendant was arrested on August 11, 2004, approximately 6 weeks after J.L. made her allegation.  The Defendant cooperated fully with “LAGREGA” who, during her interview of Farias, seemed in a hurry, at one point stating, “It’s getting late, I have to go [to] my family, let’s schedule for Monday. (TR467/16-20)

The prosecutor, after the Defendant stated that he had been intimidated by LAGREGA during his videotaped interview with her, stated, “I’m sure it’s intimidating for a 7 year old too”. [emphasis added](TR477/16-17)

During closing argument, the State, argued that “There’s no reason in the world for a man to know this...unless he had been for some reason fixating on her.  And he had been fixating on her, because this had been a little girl he had just violated. [emphasis added] (TR532/7-11)

The consistent theme of attempting to inflame the passions of the jury continued later during the State’s closing, when the Assistant State Attorney argued, “Also consider - - consider how tough it probably was for this child to sit there and talk about vagina, peepee, private area, everything to all of these strangers”. [emphasis added] (T544/6-8)

The Government misstated J.L.’s testimony, telling the jury that, “...she [J.L.] remembers the traumatic event.  She remembers what happened here...I submit to you she [J.L.] had an accurate memory...she told you the incident itself” without reviewing tapes, without reviewing statements or anything else.” [emphasis added] (TR546/15-20)

This was clearly contra to the sworn testimony of J.L. at trial, when she was asked whether she had “seen that interview recently” (meaning the videotaped interview between J.L. and LAGREGA) and J.L. responded by asking defense counsel “What do you mean by see it”?) (TR90/16-17)

J.L. then conceded that she watched the LAGREGA/J.L. interview on the night before she took the witness stand at trial. [emphasis added] (TR90/18-23); also see page 8 supra).

A short time later, the State asked the Defendant, “So when she [J.L.] testified,...that you said she was wearing underwear, Detective LaGrega was lying.” [emphasis added] (TR483/10-11)

Defense counsel, as the State continued that line of questioning, objected, stating, “This is improper impeachment.  It’s just generically a comment on what another witness said.  It’s not proper impeachment”.  The Court overruled the objection stating, “We haven’t gotten there yet”. (TR483/19-21)

The State’s theme of attempting to inflame the passions of the jury was again invoked when, shortly later in the closing argument, the Assistant State Attorney said, “I submit to you that he had just violated his daughter”. [emphasis added] (TR534/16-17)

                                                                                                            THE CHILD HEARSAY “CH” HEARING

The “CH Hearing, as addressed supra, was a lengthy hearing to determine the admissibility of out of court statements made by J.L. subsequent to the incident.  The hearing began on April 25, 2006, and concluded on October 16, 2006.

The State of Florida, on March 2, 2006, filed six separate notices of intention to use hearsay statements pursuant to Ch.90.803(23), Fla.Stat. (2003). 

On July 13, 2005, Defendant filed his “Motion For Pretrial Determination of Admissibility of Out of Court Statements Made By Alleged Victim”.  (R66-69).  Defendant’s Motion alleged that J.L.’s out of court statements lacked indicia of trustworthy and/or reliability, that the admission of out of court statements pursuant to Ch.90.803(23) violated Defendant’s right to confrontation, in that it improperly shifted the burden of going forward with evidence to the Defendant in violation of Art. I, Sections 9 and 16 of the Florida Constitution, as well as the 5^th, 6^th and 14^th Amendments to the United States Constitution.

The motion further required the trial court make specific findings of fact regarding the admissibility of any out of court statements by the alleged victim as required by Section 90.803(c), Fla.Stat. (2003).

The first witness called at the onset of the “CH” hearing was Diane Loomis, J.L.’s grandmother. (R160/4-6;23-25)

     Ms. Loomis claimed that J.L. told her that Mr. Farias wiggled his finger in her privates, and that J.L. specifically used the term “privates” when describing what she claimed had happened.  (R161/9-11).  Ms. Loomis testified that Michelle Denmon, J.L.’s mother, arrived at Ms. Loomis’ house, and was told what J.L. had told Ms. Loomis concerning her allegations against Mr. Farias. (R162/9-13)

J.L. was asked if the incident had occurred on any other night, and J.L. responded that there had been no such other occurrence.  (R163/22-24)

On cross-examination, Ms. Loomis claimed she was absolutely sure that J.L. used the term “private parts”. (R165/4-8).  Ms. Loomis also acknowledged denying using the term “private” in her sworn deposition held on February 8, 2005.  (R167/1-4)

J.L. was then called, and testified that she was 9 years old, with a date of birth of October 15, 1996. (R175/2-7)

J.L. admitted that she doesn’t know how long she has known the difference between telling the truth and telling a lie. (R176/8-12)

J.L. testified she did not remember when she wrote THE LETTER. (R179/8-10)

On cross-examination, J.L. did not remember THE LETTER. J.L. claimed she did not know that on THE LETTER, the crossed out “V” was in fact a “V”. (R182/7-11)

J.L. claimed not to remember why she crossed out a portion of THE LETTER. (R182/13-15)

J.L. however, remembered the fact that she had crossed some material out. (R182/16-18).

J.L. then claimed she did not know what caused her to write THE LETTER. (R183/21-23). She stated that no one asked her to write THE LETTER. (R183/24-25)

J.L. did not remember if she made a sketch of the alleged crime scene. (R185/11-13).  When she was confronted with the sketch she made however, J.L. conceded she “drew part of” it. (R186/15-17)

On the sketch, J.L. indicated that the “stick person at the foot of the bed was Juan Farias”. (R187/10-13; 21-22)

J.L. did not remember whether Farias reached underneath her, with both arms and “scooted” her over. (R187/23-24; 188/1). J.L. then claimed that she did not remember being asked that same question during the interrogation by LAGREGA. (R188/2-4)

J.L. remembered that Pamela Farias was in bed sleeping at the time of the incident. (R188/12-16). But she did not remember when it happened. [emphasis added] (R188/24-25; 189/1)

Then J.L. testified that she previously had said that it happened at midnight. (R189/2-4). J.L. did remember that she told LAGREGA it happened at 1:30 a.m. or 12 a.m. (R189/5-7).  J.L. then conceded that she did not know why she told the LAGREGA that the incident had occurred at 1:30 or 12:00. [emphasis added] (R189/8-10)

J.L. claims she did not have a good memory of the event when she was questioned by LAGREGA. [emphasis added] (R189/10-14).  J.L. then recalled that she in fact did have a good memory when talking to LAGREGA.^[13] [emphasis added] (R189/15-17)

J.L. did not remember whether she told her grandmother that Farias touched her outside or inside of her clothing. (R190/10-12). Likewise, J.L. did not remember whether she told LAGREGA the Defendant touched her underneath her underwear. (R190/22-24)

J.L. recalled having breakfast at the Farias house on the morning immediately after the incident. (R191/1-5).  J.L. specifically remembers having breakfast with Pamela Farias. [emphasis added](R191/6-7)

Michelle Denmon, J.L.’s mother was then called to testify at the “CH” hearing.  Ms. Denmon testified that THE LETTER written by J.L. occurred while Ms. Denmon was sitting at the dining room table approximately a couple of days after the incident.  (R192/24-25; 193/1-4)

Michelle Denmon testified that J.L. brought “THE LETTER” to her spontaneously, telling her “to read it...we can give this to Detective LaGrega”.  (R194/16-18).  Ms. Denmon further stated that J.L. drafted “THE LETTER” entirely on her own.^[14] (R196/6-10)

The CH continued on October 16, 2006. 

LAGREGA took the stand, and testified that she did not interview J.L. in any depth on the first day, but rather waited approximately four (4) days, until April 29^th, 2004 to conduct the videotaped interview. (R306/2-15)

LAGREGA testified J.L. was 7 years old at the time of the initial interview. (R307/3-5).  At the initial interview J.L. told LAGREGA she wanted to see the Defendant go to jail. (R309/13-17)

LAGREGA thought J.L.’s letter was “...odd the way it was written”.  LAGREGA initially was not sure whether or not J.L. had been “prompted” to write “THE LETTER”. (R311/1-4)

J.L. told LAGREGA that “...it happened again”, and then on the subsequent occasion it happened “the same way” [emphasis added] (R316/8-11)

LAGREGA was told by J.L. that the Defendant was standing at the foot of the bed during the incident, and J.L. at the time was “30 some odd” inches tall. (R318/6-14).  LAGREGA then conceded that J.L. had in fact made two drawings during the course of the interview. (R318/22-24)

The defense arguments at the conclusion of the hearing were that J.L.’s statements were unreliable; they were inherently and internally inconsistent^[15] and externally inconsistent, i.e., they varied from what J.L. told different people (orally and in writing) at different times, e.g.:

A. that the touching occurred on the top of the clothing, underneath the clothing, and

B. that the touching occurred on the top of the underwear versus underneath the underwear, and

C. that Farias’ finger went into her privates or on to her privates. (R330-332)

D. referring to an exhibit, J.L. used the word “peepee”, then denied using the word. (R330/19-21)

The defense further argued LAGREGA’s testimony that the child was 3 foot “something” inches tall at the time of the incident (defense counsel used 3 foot 11 as an example to illustrate the point in a light most favorable to the State) effectively made the defense re-enactment created by Investigator Perron even more compelling. (R331/11-14).  Finally, defense counsel argued that there really was no physical evidence to support J.L.’s contention. (R331/1-8)

The trial court ruled as follows:

“I think the statements to the grandmother and mother are not testimonial because their (sic) not any type of interview gathered for purposes of law enforcement to be used.  There’s no indication at least from her perspective that they’re gonna be later on used in court, with regard to the statement”.  “But even considering the statement given to the grandmother I think it was given spontaneously at the first available opportunity”. (R333/1-11). “I think the child for her age of 7 from watching the interviews, she knew, the body she knew the truth from a lie, right from wrong.  The detective indicated that she felt she was extremely bright. I mean there’s a reasonable basis to conclude that the letter was unprompted. I think the statements are no more contradictory than normal statements, especially given by a child. So I think it’s been established that they’re sufficiently reliable to be admissible, doesn’t necessarily mean that they will be believed, but and similarly with the experiment I don’t that per se renders them unreliable and inadmissible. So at least based upon what I’ve heard, I’m gonna rule that they are admissible under 803.23.  Does that cover it”? (R333/11-24)

                                                                 SUMMARY OF ARGUMENT

The Defendant was denied a fair trial by the trial court’s decision to admit into evidence a prejudicial, inflammatory photograph that had neither relevance nor probative value; by allowing into evidence pursuant to Ch.90.803(23), Fla.Stat. (2003), certain out-of-court statements that ought to have been excluded; and by the jury being manipulated and misled by numerous instances of prosecutorial over reaching.

                                                                             ARGUMENT

I.  THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF THE DEFENDANT IN ADMITTING STATE’S EXHIBIT #5, A PHOTOGRAPH OF THE COMPLAINING WITNESS, TAKEN DURING HER PHYSICAL EXAMINATION, AND AFTER THE INCIDENT OCCURRED.

The State initially attempted to introduce several photographs of the examination of J.L. by Dr. Cariello on the day after the evening/morning when the incident occurred.  Exhibit #5, initially consisted of several photographs of the examination, and the State sought to introduce them during the testimony of Michelle Denmon, J.L.’s mother, who was present during the exam. (TR114/6-25).  The defense objected to introduction of State’s Exhibit #5 on several grounds: insufficient predicate; relevancy; and the prejudicial impact of introducing the photographs far outweighed any evidentiary value of the Court deemed the photographs to be relevant. (TR115/4-13)

After hearing the Defendant’s objection, the Court inquired of the State, “What is the relevance”?  (TR115/14)

In sum, the State gave two (2) rationales for the photographs:

1)   The State claimed that the doctor and the nurse disagreed as to whether any “redness” in J.L.’s vulva area in fact existed.

2)   The State explained “I don’t think it’s relevant, maybe not for all the pictures, maybe we’ll just do one, but I do think it’s relevant to show the jury what she went through as part of her examination”. [emphasis added] (TR115/15-25)

In rejoinder, defense counsel responded, reminding the Court it had already entered a motion in limine excluding any reference to Nurse Burtelson’s observations concerning “redness”, and further reminding the Court that the doctor observed “no internal or external injury”.  Counsel for defendant concluded “...the State is seeking to put the photographs into evidence in order to ask the witnesses who are not here to ask the jurors who are not experts to find something that experts could not find.  These pictures are inflammatory...” [emphasis added] (TR116/1-11)

The Court then ruled, stating: “I don’t find what she went through is material to whether or not this Defendant committed the crime.  So absent some evidence making these relevant for now I’m going to sustain the objection”. [emphasis added] (TR116/12-15)

After the Court’s ruling on the admissibility of the photographs however, counsel for the State continued arguing the objection the Court had just sustained, and once again argued the photos were relevant to show “...what the child went through” as photos would somehow act to rebut what the State suspected would be the defense’s position that J.L. was “...making it [the story] up”. (TR116/16-25)

Following the State’s additional argument, the trial court elected to “...reserve on it...[presumptively the objection] for a while.” (TR117/5-7)

There was no further discussion concerning the admissibility of Exhibit #5 until the State’s next witness, Dr. Lustgarten, had taken the stand, and spoken of the urinalysis results obtained from the sample taken during the physical examination of J.L. 

At that time, the Court, sua sponte stated: “About those pictures.  I’m going to permit you to enter one.  And I think the relevance is, I think it does tend to show that someone would not subject themselves to that so I think there is some relevance to them.  But I think all of those pictures is a bit overkill”. [emphasis added] (TR183/16-20). 

The Court further opined, “This would be over your objection, Mr. Garland.  You can agree on which photo”.  (TR183/23-24).  Defense counsel renewed his objection, and, responding to the State’s ‘re-stated’ ground, to wit: that the pictures were relevant to show what someone “would subject themselves to” in terms of fabricating a statement, “...we object because she wouldn’t have known that was part of the process when she made the complaint”. [emphasis added] (TR183/25; 184/1-2)

It is important to note, that the “new” ground asserted by the State Attorney after the judge had ruled, stating the ground that it was the impact upon J.L. of the physical examination that would make an otherwise irrelevant inflammatory and prejudicial photograph admissible, was precisely the rationale the judge initially had used in rejecting the State’s argument when first presented, when the Court stated “I don’t find what she went through is material to whether or not this Defendant committed the crime”. [emphasis added] (TR116/12-15)

Although the relevance and admissibility of State’s Exhibit #5 was disputed at trial, the law on this issue, undersigned respectfully suggests, is quite clear.

In Beagles v. State, 273 So.2d 796 (Fla. 1973), the First District Court of Appeal reversed the conviction of a defendant found guilty of first degree murder, where the State introduced numerous gruesome photographs of the victim, the cumulative effect of which was prejudicial to the Appellant.  Id. at 797.

In Beagles, Id., the State introduced numerous photographs showing the nude body of the victim in that case after the victim had been removed from the grave site. 

The Court in Beagles, Id., relied upon the Florida Supreme Court’s ruling in Leach v. State, 132 So.2d 329 (Fla. 1961).  The conclusion reached by the Beagles, Id., Court was that “Photographs should be received in evidence with great caution and photographs which show nothing more than a gory or gruesome portrayal should not be admitted. 273 So.2d 798 (Fla. 1^st DCA 1973), citing Thomas v. State, 59 So.2d 517 (Fla. 1952). [emphasis added]

The Court further opined that ordinarily, gruesome photographs should not be admitted if made after the body has been removed from the scene unless they have some particular relevance.  798 Fla. 1^st DCA 1973 [emphasis added]

Anticipating the State in this case will argue that the judge somehow mitigated any potential prejudice, undersigned would direct the Court to the ruling of the Third District Court of Appeal in Rosa v. State, 412 So.2d 891 (Fla. 3^rd DCA 1982), which reversed a second degree murder conviction, holding that a single picture of a deceased’s body, which depicted the results of emergency procedures performed after the stabbing, was irrelevant.  Rosa, Id., at 891.

In the instant case, it is important to note that the judge already had ruled on the issue of whether or not pictures were relevant on the issue of the State’s ‘re-stated’ argument, to wit: “what the child went through” (TR116/16-25), when it ruled that “I don’t find that what she went through is material to whether or not this defendant committed the crime”. [emphasis added](TR116/12-15)

In sum, the State merely re-argued the same argument that had been rejected by the Court initially.

As to the expected argument re: ‘mitigation’, i.e., by reducing the number of photographs of the examination from 5 to merely 1 would make otherwise relevant photographs inadmissible, undersigned would respectfully suggest that the photograph was either admissible as relevant, or it was not. 

This especially is so when taken in context of the overall theme, begun with the State’s first line in opening statement, tending to excite, inflame and impassion the jurors to return a guilty verdict.

II.  THE TRIAL COURT’S ADMISSION OF OUT-OF-COURT HEARSAY STATEMENTS PURSUANT TO CH.90.803(23), FLA.STAT. (2003) SUBSTANTIALLY PREJUDICED THE DEFENDANT, AND DEPRIVED HIM OF A FAIR TRIAL

The Child Hearsay Hearing pursuant to Ch. 90.803(23), Fla. Stat. (2003), was a bifurcated^[16] two (2) day hearing, with the two (2) days of testimony beginning on April 25, 2006, and concluding on October 16, 2006.

In pertinent part, Ch. 90.803(23), Fla.Stat. (2003) (hereinafter “CHILD HEARSAY EXCEPTION”) provides that subject to a certain exception, out-of-court statements by children 11 years old or less (whether measured physically, mentally, emotionally or developmentally) may be admitted into evidence in alleged sex crimes, despite the fact the statements were made out-of-court and not subject to cross-examination.  The exception is that if the source of the information that is sought to be admitted, or the method or circumstance by which the statement is reported, indicate a lack of trustworthy, then the hearsay exception does not apply. Ch.90.803(23)(a), Fla.Stat. (2003)

The thrust of the Defendant’s Motion here was that the child’s statements were so internally inconsistent, and externally inconsistent, that their inherent reliability was insufficient to allow them to be admitted pursuant to the parameters of the CHILD HEARSAY EXCEPTION.  The substantial prejudice enuring to the detriment of the Defendant is that the various statements that were admitted pursuant to the hearsay exception^[17] is that these inherently inconsistent statements made by the child (whether of a profound character, whether only moderately misleading, or even arguably trivial) would be ‘smoothed over’ by continuous repetition of the story by others, including J.L.  To be sure, each subsequent recitation of the incident likewise provided ‘grist’ for the cross-examination ‘mill’, but undersigned suggests the danger inherent in permitting these otherwise inadmissible statements to be heard by the jury clouded the inconsistencies and hence the reliability, of the statements made by J.L.  There of course exists the additional problem of Detective LaGrega, the child’s mother and the child’s grandmother (all of whom are arguably de minimus “interested” witnesses) to embellish their testimony towards minimizing the importance of inconsistent statements made by the child, whether those embellishments are made intentionally or subconsciously by those testifying.

The one most obvious and profound example of J.L. substantially changing her sworn testimony was on an issue seminal to the case, yet seemingly ignored by counsel for the State, counsel for the defense, and even by Detective LaGrega during the taped interview.     During the LAGREGA interview, there was a discussion with J.L., where J.L. mentions a second sexual assault.  She said the following:

1) Defendant came into the bedroom two times. (TR217/11-13)

2)  J.L. was still awake the second time. (TR218/6-8)

3)  J.L. doesn’t know what defendant did the second time. [emphasis added] (TR220/1-3)

4) Defendant touched J.L. the second time. [emphasis added” (TR220/4-5)

5) Defendant touched J.L.’s privates the second time. [emphasis added} (TR220/8-10)

6) Defendant touched J.L.’s privates on top of her clothes the second time. [emphasis added] (TR220/11-13)

7) The second time Defendant put his hand under J.L.’s clothes. [emphasis added] (TR221/24-25; 222/1)

J.L. did not mention this second assault at any time during the CH HEARING or the trial.

A comparison of the myriad of other inconsistent statements, both internal and external, are detailed throughout the Statement of the Case and Facts, supra.

Finally, Appellant asserts that the factual findings made by the trial court at the conclusion of the CH hearing do not meet the requirement of Ch.90.803(23)(c) that the Court make specific findings of fact on the record as to the basis for its ruling under this subsection.

The Court’s rationale for making the finding of reliability required by the statute, relating to the mother and grandmother, seemed to rely exclusively on the issue of them being “non-testimonial”.  Although whether or not the statements are testimonial is certainly an issue relevant to Crawford v. Washington, 541 U.S. 36, 124 S. Lt. 1354, 158 L. Ed. 2d 177 (2004) issues, those issues are not related whether the statements to Ms. Denmon and the grandmother were sufficiently reliable to meet the admissibility requirements of Ch.90.803(23), Fla. Stat. (2003).

The Court stated, “The Detective indicated that she [J.L.]  felt she was extremely bright.” [emphasis added]  The Detective’s conclusions concerning the level of maturity, mental state, etc., of J.L. are not at issue.  The conclusions and considerations of the trial court are dispositive, not those of the investigating detective. 

The trial court’s summary explanation that “It’s been established that they are sufficiently reliable to be admissible”, is neither quantitatively nor qualitatively a legally sufficient fact finding about the child’s mental and physical age, the child’s maturity, the nature and duration of the abuse or offense, the relationship of the child to the alleged offender, the reliability of the assertion, and the reliability of the child victim, to meet the requisites of the CHILD HEARSAY EXCEPTION.

It is settled law that a prior inconsistent statement, standing alone, is, as a matter of law, inconsistent to prove guilt beyond a reasonable doubt.  State v. Moore, 485 So.2d, 1279, 1281 (Fla. 1986).  And it is clear that a Court may be asked to reconsider a finding of “reliability” based upon subsequent inconsistent statements deemed admissible pursuant to Ch.90.803(23), Fla.Stat. (2003). Dept. of Health & Rehabilitative Services v. M.B., 701 So.2d 1155 (Fla. 1997).

In the instant case, the issue is whether a child’s plethora of profoundly inconsistent statements is sufficient to sustain the conviction.

On July 13, 2005, Defendant filed his “Motion For Pretrial Determination of Admissibility of Out of Court Statements Made By Alleged Victim”.  (R66-69).  Defendant’s Motion alleged that J.L.’s out of court statements lacked indicia of trustworthy and/or reliability, that the admission of out of court statements pursuant to Ch.90.803(23) violated Defendant’s right to confrontation, in that it improperly shifted the burden of going forward with evidence to the Defendant in violation of Art. I, Sections 9 and 16 of the Florida Constitution, as well as the 5^th, 6^th and 14^th Amendments to the United States Constitution.

The motion further alleged that the trial court make specific findings of fact regarding the admissibility of any out of court statements by the alleged victim as required by Section 90.803(c), Fla.Stat. (2003).

Appellant respectfully suggests no such legally sufficient findings were made by the trial court.

III.   THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF THE DEFENDANT BY PERMITTING THE PROSECUTION TEAM TO REPEATEDLY ENGAGE IN ACTS OF PROSECUTORIAL MISCONDUCT.

The claim of prosecutorial misconduct in this instance must be viewed within the context of the entire case.  Whether intentional or unconscious, the State, from the trial’s inception, repeatedly invoked the themes of creating sympathy for J.L., as well as inflaming passions of the jury in this most tender and sensitive type of criminal trial.

In the very first line of opening statement, the Assistant State Attorney alluded to the allegation that the Defendant touched J.L.’s “7 year old vagina”. (TR56/22-23)

Subsequently, in opening statement, the Assistant State Attorney alluded to J.L.’s examination in the hospital on the day she made the allegation and stated, “...with her legs naked and spread wide open”.  (TR57/20-21)

Still later in opening statement, the government lawyer again stated, “...which I’m sure for a 7 year old girl must have been traumatizing”. (TR57/21-22)

These repeated references to the tender age of the alleged victim, when coupled with the use of the term “legs naked spread wide open”, can only be susceptible of one inference - - - that being that the State was attempting to evoke a sympathetic and angry response from the panel.

This process continued during the State’s cross-examination of Dr. Cariello, who had performed the examination on J.L.  During that cross-examination, the State went into excruciating detail concerning the specifics of the physician’s examination of the child, including the ‘rape kit’ portion of that examination.  In concluding the cross, the State asked the physician, “Now, is this generally something that people who are getting this examination...is this fun for them”? [emphasis added] (TR331/21-22)

Again, this kind of gratuitous question, entirely irrelevant to proving the prima facia elements of the crime, can only be susceptible of one inference; that the State was again attempting to interject sympathy on behalf of the alleged victim.

During cross-examination, the prosecutor, after the Defendant stated that he had been intimidated by LAGREGA during his videotaped interview with her, gratuitously intoned, “I’m sure it’s intimidating for a 7 year old too”.  (TR477/16-17)

Shortly thereafter, during an exchange on the issue of what J.L. had told LAGREGA during the taped interview, the State improperly inquired of Mr. Farias, “So when she testified ...that you said she was wearing underwear, Detective Lagrega was lying”? [emphasis added](TR483/10-11). The question of course, was completely improper.  See: Knowles v. State, 632 So.2d 62 (Fla. 1993); Mosley v. State, 569 So.2d 832 (Fla. 2d DCA 1990); Izquierdo v. State, 724 So.2d 124, 126 n.2 (Fla. 3^rd DCA 1998).

 As they continued along that line of questioning, defense counsel objected, stating, “This is improper impeachment.  It’s generically a comment on what another witness said.  It’s not proper impeachment”.  The Court overruled the objection stating, “We haven’t gotten there yet”. [emphasis added] (TR483/19-21)

Either accidentally or by design, the jury’s passions could hardly not be inflamed when  the State Attorney intoned, “I submit to you that he had just violated his daughter”. [emphasis added] (TR534/16-17)

The State then again inflamed the passions of the venire when it stated, “There’s no reason in the world for a man to know this...unless he had been for some reason fixating on her. And he had been fixating on her, because this had been a little girl that he had just violated. [emphasis added] (TR532/7-11)

The State again sought to evoke sympathy from the jury when stating, “Also consider - - consider how tough it probably was for this child to sit there and talk about vagina, peepee, private area, everything to all of these strangers”. (TR544/6-8)

Finally, the State having not yet transgressed into the arena of ridiculing the defense, proceeded to do so, when the Assistant State Attorney argued, “Now the way we actually know the time - - so the idea that the Defendant wasn’t there when this happened is ridiculous”. [emphasis added] (TR545/22-23).

Although not all of the above-listed references to prosecutorial excess resulted in timely  objections, the cumulative impact of the “theme” of inflaming jurors’ passions, evoking sympathy from the panel, and ridiculing the Defendant’s veracity as well as the defense presented at trial, acted cumulatively to deprive Juan Jose Farias of his right to a fair trial.  See: McIntosh v. State, 941 So.2d 1, 4-5 (Fla. 2^nd DCA 2006); Brown v. State, 787 So.2d 229 (Fla. 2^nd DCA 2001)

                                                                           CONCLUSION

Based upon the foregoing argument and citation of authority, the Defendant respectfully requests this Court to vacate the Defendant’s Judgment of Conviction and Sentence, and to remand this matter to the trial court for further proceedings. 

JONATHAN JAY KIRSCHNER, ESQUIRE

& ASSOCIATES, LLC

By:  _________________________________

Jonathan Jay Kirschner, Esquire

Florida Bar No.: 407577

                                                                       CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to Melanie Dale-Surber, Assistant Attorney General, Office of Attorney General, 1515 N. Flagler Drive, Suite 900, West Palm Beach, Florida 33401-3428, on this _____ day of September, 2008.