Court: District Court of Appeal of Florida; October 11, 1995; Florida; State Appellate Court
Michael Jude Allison appealed his conviction for second-degree murder and a life sentence stemming from the murder of his ex-wife, Kathlyn Ann Allison. The incident occurred after Allison had been residing at his former wife's home to help care for their three children. On January 5, 1992, following a night spent watching movies with his ex-wife and children, their oldest child discovered Mrs. Allison dead in her bed, with mechanical asphyxia determined as the cause of death. Initially indicted for first-degree murder, the jury ultimately convicted him of second-degree murder.
A key issue in the appeal revolved around the admissibility of statements made by the couple's four-year-old daughter during audiotaped and videotaped interviews conducted by Detective Terrie Morganthal shortly after the murder. Despite defense objections, the trial court admitted these statements under the hearsay exception for child victims as defined in Florida Statutes section 90.803(23). However, the appellate court found this ruling erroneous, referencing the Florida Supreme Court's decisions in State v. Dupree and State v. Ford. The Dupree case established that a child's hearsay statements can only be admitted if the defendant is being prosecuted for victimizing that child. The Ford case emphasized the necessity of ensuring that alternative procedures for child witness testimony maintain reliability while serving the public interest of protecting the child from trauma. Consequently, the appellate court reversed the conviction and ordered a new trial.
Determining whether the trial court's procedure infringed upon Allison's constitutional right to face-to-face confrontation involves assessing the necessity of alternative procedures for an important public policy and the reliability of the testimony provided. The Supreme Court in Maryland v. Craig established that a physical confrontation is not required if the procedure's necessity is justified and the reliability of the testimony is assured. In this case, the child was deemed unavailable due to memory issues linked to severe emotional trauma, justifying the use of alternative procedures. However, the court found that the requirements for reliability were not fully met.
Specifically, Allison and his counsel could not cross-examine the child, as they were not present during her interviews, failing to satisfy the first reliability criterion established in Craig. The child’s testimony was not given under oath, although Florida law allows for children to testify without oath if they understand the obligation to tell the truth. The videotaped interview indicated that the child comprehended this duty, while the audiotaped interview lacked similar inquiries. The jury could observe the child’s demeanor in the videotape but not in the audiotape, leading to the conclusion that admitting both recordings constituted error. The court could not ascertain that this error was harmless, referencing State v. DiGuilio.
Regarding the admissibility of the child's statements made to clinical psychologist Dr. Mary Ellen Frasier, the court permitted her to testify about the child's statements concerning her mother and a claim that Allison choked her mother. The court justified the first statement as non-hearsay, while it ruled the second statement admissible under section 90.803(23). The summary concludes that while the first ruling was correct, the second ruling on the child's statement about her father was not justified.
For a child's out-of-court statements to be admissible under section 90.803(23), the prosecution must relate to the victimization of that child. In this case, the four-year-old child's statements were not admissible under this hearsay exception. Additionally, the second statement failed to qualify under section 90.803(4), which permits statements made for medical diagnosis or treatment, as there was no indication the child understood her statement was for that purpose. Statements of fault are not admissible under this section, and the court rejected the broader federal interpretation that would allow such statements in cases of child sexual abuse. The court emphasized that for admissibility under section 90.803(4), it must be shown that the statement was made with the intent of diagnosis or treatment, which was not established here. Consequently, the child's statement regarding her father choking her mother should have been excluded, and this error was deemed not harmless as it likely influenced the verdict.
Regarding the admissibility of a 911 call made by a ten-year-old son discovering his mother's death, the court ruled it admissible under the excited utterance exception, as the child was under stress and crying when making the call. This aligns with precedent allowing 911 recordings as evidence under similar circumstances.
Lastly, the trial court imposed a departure sentence of life imprisonment for Allison, justified by the significant emotional trauma experienced by the four-year-old child who witnessed the crime. The court found substantial evidence of this trauma, supporting the departure sentence, and cited relevant case law that allows this consideration. The decision was reversed and remanded for a new trial, with a note included for potential sentencing considerations upon retrial.
