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Legal Pleadings:

Motion in Limine – Hearsay Statements

COMES NOW the Defendant, by and through his undersigned counsel, and hereby files this Motion In Limine, pursuant to the provisions of §§ 90.801, 90.802, 90.803(23), and 90.403 Fla. Stat., to prevent the State from eliciting any hearsay statements that the alleged victim, C.S. made to third parties, concerning any allegations in this case, and in support thereof, states as follows:

FACTS

1. The client is 33 years old, and was arrested on July 26, for the alleged crime of capital sexual battery.
2. The client was charged by Information on August 31, with one count of Capital Sexual Battery on a child under the age of 12, and one count of possession of less than 20 grams of cannabis.
3. The alleged victim in this case, C.S., is a minor child who was 11 years old at the time of the allegations. She is now 12 years old.
4. C.S. allegedly reported to her 13 year-old brother, Q.S., that she had sex with the client. According to C.S., her brother, Q.S. then begged her to have sex with him, and she finally
agreed.
5. On July 2, Q.S. reported to a church member, Mr. M., that he was having sex with his sister, and they were concerned she might be pregnant. Mr. M. called the police.
6. At the time the police were called, DCF was also notified, and C.S. allegedly reported to DCF Investigator E. W. that she had sex with her brother, and with the client.
7. The State has not yet filed a Notice of Hearsay, but has listed the following witnesses on their Discovery Exhibit, who would testify to hearsay statements made by C.S., regarding the allegations of sexual abuse:

a. E. W., Department of Children and Families (“DCF”);
b. L. A., First Coast Child Protection Team (“CPT”);
c. R.M. Sessions, #6634, Jacksonville Sheriff’s Office (“JSO”); and
d. K. G., ARNP, First Coast Child Protection Team (“CPT”).

8. On February 12, defense counsel took the deposition of the lead detective in this matter, R.M. S.
9. Det. S. confirmed during his deposition that his probable cause to arrest the client was based solely on the interview of the victim by Case Coordinator L. A. of CPT, on July 3, where C.S. stated she had sex with the client.
10. A copy of the transcript of the CPT interview of C.S. on July 3 is attached as Exhibit A.
11. At the beginning of the interview, Ms. A. asked C.S. if she understood what it meant to tell the truth. C.S. stated she did, and gave an example of the difference between the truth and a lie.
12. Ms. A. then asked C.S. if they could agree that, “everything we talk about today will only be the truth and true things that happened.” C.S. agreed to this, by nodding her head “yes.”
13. At the end of the interview, Ms. A. asked C.S. if everything they talked about was the truth, and she replied, “Yes ma’am.”
14. During the CPT interview on July 3, C.S. stated she had been sexually assaulted by her oldest brother two years ago, and had consensual penile vaginal intercourse with the client and Q.S. in April.
15. C.S. stated she had penile vaginal intercourse with the client on April 20.
16. During the CPT interview, on July 3, C.S. made the following statements:

a. She asked the client to have sex with her on April 20, because she “wanted to try it” and “wanted to see how it felt.”
b. She had intercourse with the client only one time.
c. When asked by Ms. A. if anyone ever made her put their mouth on their private part, C.S. replied, “No.”

17. On May 2, defense counsel took the deposition of C.S. The deposition transcript was filed with the court on June 13. During her deposition, C.S. made the following statements, concerning the client, which directly contradicted the statements she made during her CPT interview on July 3:

a. She did not ask the client to have sex with her on April 20.
b. She had sexual intercourse with the client on more than one occasion.
c. She used to “suck his private.” She stated it happened several times, beginning when she was 9 years old.

18. During the CPT interview on July 3, Ms. A., at the direction of Det. S., asked C.S. whether she had sexual contact with a man named “R.” C.S. described “R.” as a man she spent time with, and who bought her things, and gave her money, but she denied any sexual contact with him, and denied he had ever photographed her.
19. Det. S. confirmed during his deposition that C.S. was not truthful during her CPT interview on July 3, because she denied that Mr. M. had ever had any sexual contact with her, or photographed her. Det. S. stated that during a subsequent interview with him, C.S. changed her statement, and stated that Mr. M. had taken pictures of her in sexual positions, and had sexual contact with her. Additionally, pornographic photographs of C.S. were found on Mr. M.’s phone. Mr. M. was later arrested, and charged with possession of child pornography and sexually battery on C.S.
20. During her deposition, with defense counsel, C.S. stated she had sex with R. one time in her bedroom.
21. C.S. has previously accused two other adult men of sexual abuse, and in each case, the charges were not pursued or were dropped, due to the inconsistent statements of C.S.
22. Exhibit B is the Disposition Statement from Florida v. E. C. M. Mr. M. was arrested for the crime of Lewd or Lascivious Molestation upon C.S., the same victim alleged herein. According to the Disposition Statement, the only evidence against Mr. M. was the testimony of C.S. During her CPT interview, C.S. said that Mr. M., the father of her friend, L. M., had touched her genital area, and had touched a friend, C. M. However, C. M. stated in her CPT interview that she and her friends had decided to lie about Mr. M., and that the sexual abuse had not happened. When C.S. met with Assistant State Attorney J. P., she recanted her original statement, and said that Mr. M. had never touched her genital area. Ms. P. dropped the case against Mr. M.
23. Composite Exhibit C are copies of the witness affidavits provided by E. A. and T. P. Mrs. P. states that C.S. admitted to her that she lied about a friend’s father touching her genital area. This sworn statement corresponds to the facts and time period of the case against Mr. M. during that time. Mr. P. confirms that he heard C.S. make these statements to his wife.
24. A few years ago, C.S. accused W. L. of sexually abusing her. Composite Exhibit D is the Affidavit for Arrest Warrant and corresponding Arrest Warrant Denial for Mr. L. According to the Arrest Warrant Denial, C.S., the same victim alleged herein, accused Mr. L. of sexually assaulting her when she spent the night at his house. She stated that at the time, she screamed, and her brother came into the room. However, when her brother was interviewed, he denied spending the night at Mr. L.’s home. The warrant was denied due to insufficient evidence of a crime.
25. On May 2, during her deposition, C.S. made the following statements:

a. She tells lies to “a lot of people.”
b. She lies when she does not want to get in trouble, and wants to blame someone else.
c. She lied during a CPT interview regarding “R,” to “try to keep him out of trouble.”
d. She has lied to get others in trouble, because she was mad at them.
e. Sometimes when she has lied, she has felt bad afterward, but she would never admit that she lied.

26. During her deposition, C.S. also stated that the only person she told about the alleged sexual intercourse with the client was her brother, Q.S.
27. C.S. stated that the first adult she told about the allegations against the client was her caseworker, E. W., on July 2, the same day the police were called.
28. Composite Exhibit E are Witness Statements from six people who know C.S., and are aware of her reputation in the community for dishonesty. One of the statements is from the mother of C.S., A. “V.” H.

MEMORANDUM OF LAW

Any out of court statements made by C.S., constitute inadmissible hearsay, to which no hearsay exception applies. Section § 90.803(23)1, Fla. Stat., provides that out of court statements made by a child victim with a physical, mental, or developmental age of 11 or less, describing any act of child abuse or any unlawful sexual act are admissible, if:
The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factors deemed appropriate.

(emphasis added.)
In State v. Townsend, 635 So. 2d 949, 954 (Fla. 1994), the Court stated that in enacting this exception to the hearsay rule, the legislature was making it clear that, the admission of a child victim’s hearsay statement would not be allowed absent “clear indications of reliability.” The court also stated that “competency of the child is a factor that should be considered in determining the trustworthiness and reliability, and thus the admissibility, of hearsay statements attributable to the child.” (emphasis added). Id. The court stated that the reliability requirements of the hearsay exception were “essential in assuring the constitutionality of the exception.” Id.

In Townsend, the Court outlined several factors trial courts should consider when determining their trustworthiness and reliability of a hearsay statement, including, the reliability of the assertion, the reliability of the child victim, a consideration of the statement’s spontaneity, whether the statement was made at the first available opportunity following the alleged incident, whether the statement was elicited in response to questions from adults, and any other factors deemed appropriate. Id.
In G.H. v. State, 896 So. 2d 833, 835 (Fla. 1st DCA 2005), the First DCA cited Townsend, supra, when considering out of court statements by an alleged child victim of sexual abuse, and stated, “. . . in all cases, courts must make specific findings of fact, on the record, regarding the reliability of the statement.”
In light of the factors listed in Townsend, supra, the hearsay statements made by C.S. in this case are clearly not trustworthy or reliable, and thus, should not be admitted. As outlined above, C.S. has proven to be unreliable. During the pendency of this case, she has made statements during her CPT interview and her deposition, which directly contradict each other, despite the fact that during both interviews, she promised to tell the truth, and demonstrated she knew the difference between the truth and a lie. Similarly, during previous investigations of sexual abuse of C.S. she has also given contradictory statements, which resulted in those cases being dismissed. She has thus demonstrated her willingness to lie in any circumstances, including official proceedings. C.S. candidly admitted during her deposition that she lies in many different situations, and although she sometimes “feels bad” about lying, she will never admit that she has told a lie. Furthermore, C.S. has a reputation for dishonesty in the community in which she lives.
Additionally, in considering the other Townsend factors, the hearsay statements the State intends to introduce are statements made in July, two and a half months after the sexual abuse allegedly occurred, and not at the first available opportunity following the alleged incident. The statements were not made spontaneously, but were made in response to questions from adults, who were involved in the investigation. The statements were only made after the police were called, and after her brother reported that he and C.S. were having consensual sexual intercourse, and they were concerned she might be pregnant. Based on these factors, and the law cited above, the out of court statements made by C.S. are unreliable, and should not be admitted as evidence in this case.

WHEREFORE, the Defendant respectfully requests this Motion be granted.