Fourth District Court of Appeal Judge Robert Gross. Photo: Melanie Bell/ALM.

Fourth District Court of Appeal Judge Robert M. Gross highlighted what he said was a recurring problem in criminal cases, thanks to confusion around hearsay and Confrontation-Clause analysis.

Gross wrote that he often sees broad considerations of case-by-case examples, when instead arguments and decisions should be based on the actual language in Florida Statutes 90.803, 90.804 and 90.805, which lay out the rules on hearsay exceptions.

The judge's comments came as the Fourth DCA gave a new trial to Sherard Adams, sentenced to life in prison after he was convicted of hiring a gunman to kill his ex-girlfriend in 2013. The appellate panel ruled Wednesday that some of the evidence used against Adams shouldn't have made it to trial because it didn't fit under the exceptions to hearsay explained in Florida statutes.

As a general rule when analyzing hearsay evidence in Florida, courts rely strictly on what's inside the statute, according to University of Miami professor of law Ricardo J. Bascuas, who specializes in evidence, criminal procedure and criminal law.

“[Judge Gross] is saying the law spells out when hearsay is reliable enough to be admitted, and what judges are supposed to do is read the law and see if the hearsay statement comes within those provisions—and that's it,” Bascuas said.

Gross also stressed that despite major similarities, the Confrontation Clause from Amendment Six of the U.S. Constitution—which gives defendants in criminal cases the right to face their accusers—and statutory language about hearsay aren't the same thing.

“They are similar, they involve similar concepts, but they're still two completely independent steps,” Bascuas said.

Because the Constitution gives criminal defendants the right to confront those making allegations against them, hearsay isn't allowed unless there's a statutory exception. Using language from the federal and Florida statutes interchangeably can confuse a legal argument, according to Gross.

“Such an approach would allow hearsay exceptions to swallow the rule against hearsay,” Gross wrote.

This issue crops up often, according to Kendall Coffey of Coffey Burlington, who teaches Florida constitutional law at the University of Miami. He said that's because the many exceptions to the hearsay rule mean case law can develop a life of its own.

“What [Gross] is advocating for is that this kind of hearsay should only be admitted if it meets the terms of the rule, and judges should not consider whether there is some broad reason to find the statement trustworthy and admissible if in fact it violates the hearsay rules,” Coffey said.

The evidence

Adams pleaded not guilty at trial, where he came up against statements from his co-defendant, who voluntarily confessed to a friend about shooting the victim—not knowing the friend had become a police informant.

The co-defendant initially confessed to police, but later recanted and refused to testify at trial. The state argued that happened because Adams had sent a letter to the co-defendant, threatening his girlfriend and family if he testified.

The co-defendants' statements still made it to trial, but they shouldn't have, according to the Fourth DCA. Adams' Fort Lauderdale attorney Arthur E. Marchetta Jr. had argued their admission violated his client's rights because he didn't have the chance to confront the co-defendant and fairly test his credibility.

The Fourth DCA also ruled that a taped phone call from Adams to the victim's father shouldn't have been admitted, as it proved nothing more than the father's opinion. It was one of many calls in which Adams asked what happened to the victim, while the father accused the defendant of murder and called him ”a liar, a punk and a junkie,” according to Wednesday's ruling.

Defense counsel Marchetta was pleased with the decision.

“My client and I feel the Fourth [DCA] made the appropriate decision under the facts of this case, and we are looking forward to retrying the case with the scales not tipped in favor of the state,” Marchetta said.

The Fourth DCA ruled the trial court was right to admit the letter, and the opinion noted that it's possible the defendant had forfeited his hearsay objection by writing it. But since the trial court didn't have the opportunity to rule on that argument from the state, it remains to be seen.

How will the new Florida Supreme Court rule?

One of the cases cited in the Fourth DCA's opinion, Moscatiello v. State, is pending before the Florida Supreme Court, as are others involving similar issues. That means things could get interesting, as Coffey sees if, because there are three new justices on the bench.

“In times past, Florida's Supreme Court has, in significant respects, been more sensitive to the rights of the accused than the U.S. Supreme Court, because we have our own state Constitution,” Coffey said. “The Supreme Court of Florida has its own traditions with respect to the rights of the accused, and the new Supreme Court will be closely watched to see if it maintains those traditions or rolls back some of the rights of the accused.”

Fourth DCA Judge Melanie G. May wrote the opinion, with Judges Dorian K. Damoorgian and Robert M. Gross concurring.

Florida Attorney General Ashley Moody and Assistant AG Mark J. Hamel represent the state. Their office declined to comment on the case.

Read the court opinion:

 

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