Mortimer v. State
100 So. 3d 99
Fla. Dist. Ct. App.2012Background
- Carwash robbery in Pompano Beach; Mortimer in getaway vehicle with stolen property; Victims Edder Joseph and Rubens Saint Remy pursued suspects; Joseph unavailable to testify due to threats and intimidation by Doom City gang; Trial court admitted prior bond-hearing testimony under an unwritten common-law forfeiture-by-wrongdoing theory; 2012 Florida statute section 90.804(2)(f) later codified forfeiture by wrongdoing for unavailable declarants, making the issue procedural and potentially retroactive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether forfeiture by wrongdoing applies in Florida at trial time | Mortimer engaged in conduct to prevent testifying | No Florida statutory basis at trial time to admit prior testimony | Not reversible; error would be cured by later statutory change |
| Whether admission of Joseph's bond-hearing testimony was permissible under Florida law at trial | Common-law forfeiture by wrongdoing supported admission | No statutory basis at the time to admit it | Admissible only if supported by statutory exception; not at the time |
| Effect of 90.804(2)(f) on retrial procedure | Codified rule would render prior testimony admissible on retrial | Procedural rule should apply retroactively to retrial | Procedural; would apply to retrial, making reversal unwarranted if retrial occurred |
| Constitutional issue regarding Supreme Court adoption under article V, §2(a) | Procedural rule requires Supreme Court adoption | Rule adoption by Court not necessary for retrial | Rule treated as procedural; Court may adopt for future cases |
| Admission of 911 calls as evidence | Admissible under 90.803(1) or 90.808(2) | Not challenged or challenged unsuccessfully | Admissible under cited provisions |
Key Cases Cited
- Giles v. California, 554 U.S. 353 (2008) (forfeiture by wrongdoing applicability in common law)
- Chavez v. State, 25 So.3d 49 (Fla. 1st DCA 2009) (Florida view of forfeiture by wrongdoing before codification)
- McLean v. State, 854 So.2d 796 (Fla. 2d DCA 2003) (procedural analysis of evidence-rule changes)
- Alamo Renir-A-Car, Inc. v. Mancusi, 632 So.2d 1352 (Fla.1994) (procedural retroactivity approach)
- In re Amendments to the Florida Evidence Code, 825 So.2d 339 (Fla.2002) (Supreme Court adoption of procedural rules)
- Petit v. State, 92 So.3d 906 (Fla.4th DCA 2012) (admissibility of 911 calls and bond-hearing testimony)