4D03-2797-Marshall v. State

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State: Florida

Court: Florida Fourth District Court

Docket No: 4D03-2797

Case Date: 12/07/2005

Preview:DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT July Term 2005 WATSON MARSHALL, Appellant, v. STATE OF FLORIDA, Appellee. No. 4D03-2797 [ December 7, 2005 ] TAYLOR, J. Appellant, Watson Marshall, timely appeals his civil commitment as a sexually violent predator. He raises numerous evidentiary errors, contending that the trial court erred in: (1) admitting victim hearsay statements to establish the factual basis for his underlying sexual crimes; (2) failing to find the Ryce Act hearsay exception unconstitutional; (3) admitting statistical evidence of screened prisoners recommended by the multidisciplinary team for involuntary commitment; and (4) permitting a psychologist to testify concerning the reasons a witness might not recall an act of sexual abuse committed during her childhood. For the reasons discussed below, we affirm. Marshall was convicted of exposure of his sexual organs in 1998 and was scheduled for release from prison on this charge in March 2000. Before that time, the state filed a petition to civilly commit Marshall. The circuit court held a jury trial which revealed Marshall's lengthy history of sex crimes. Marshall pleaded no contest to an attempted sexual battery which occurred in 1977. He confessed to rubbing grease on the anal and vaginal areas of a nine year old girl, inserting his finger in her vagina, and "accidentally" penetrating her with his penis when he was startled by her older sister coming in the room. Marshall was sentenced to thirty years for this sexual assault.

At the same time, Marshall pleaded no contest to indecent assault on another female child. For this conviction, he received a concurrent fifteen year sentence. Marshall was simultaneously convicted of two burglaries and battery on a police officer. Marshall's niece testified that in 1992, when she was seventeen, on several occasions Marshall came into her bedroom naked at night when she was asleep with her kids. He would also come over to her house and rub himself through his pants until he ejaculated, even after she told him to leave. Finally, in February 1993, when the niece was eighteen, Marshall forcibly raped her. She called the police, but Marshall soon left the Georgia town where the offense occurred and was never arrested for the offense. Marshall was convicted of aggravated assault and sentenced to five years imprisonment for an event that occurred on May 31, 1993. Marshall lived in the apartment directly below Sharon Moore, who testified to the events of that day. On that day, Moore's nine-year old daughter, S.W., and S.W.'s younger sister went out to meet the ice cream truck. The younger daughter went ahead to meet the truck at the next block, but S.W. remained waiting downstairs, just a few feet from Marshall's front door. The younger daughter returned without S.W., saying she had left S.W. downstairs on the porch. Five to ten minutes later, S.W. returned, running, out of breath and upset, with watery eyes. S.W. said she had something to tell her mother, but said she felt dirty and needed to take a bath. She then started crying. Her mother let her take a bath. Fifteen minutes later, S.W. came out of the bathroom, still crying, and said that Marshall had snatched her inside his house and put his hand over her mouth to prevent her from screaming. He then put both his finger and his penis in her "private." She kicked him to get away and ran upstairs as fast as she could. As she was headed out the door, he threw a five dollar bill at her and told her not to tell her mother. He said that it would be their secret and that he would give her some more money when he got paid. Ms. Moore went downstairs to confront Marshall, but he did not answer his door. Moore then reported the matter to the police. She took S.W. to a rape center for counseling for a month and a half after the sexual battery. Marshall called S.W. as a witness. By the time of trial, S.W. was 19 years old. She testified that she could not remember what happened and did not even remember talking to the police.

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In rebuttal, the state called clinical psychologist, Dr. Eric Imhof. Marshall's counsel objected to Dr. Imhof's testimony on the ground that he had never interviewed S.W., and thus his testimony was "purely theoretical." The objection was overruled. Dr. Imhof testified that painful memories can be dissociated and forgotten. He testified that people can also feel pressured to deny an event, and can thus pretend that nothing happened. Additionally, some matters may be too embarrassing to discuss in front of strangers. Dr. Imhof acknowledged, however, the possibility that the events did not occur and that S.W. did not accurately report the events at the time. Marshall committed two sexual offenses while in prison. He was convicted of aggravated assault for the August 21, 1993 attack on a prison inmate. The inmate, whose nose was still bleeding when officers responded to the scene, told the officers that Marshall struck him in the nose, turned him over, pulled down his pants, and inserted his finger in the inmate's rectum. A nurse practitioner who treated the victim testified that scratches and bleeding in the victim's rectum and redness around his anus were consistent with the victim's account of the attack. Marshall admitted this attack to Dr. Kevin Raymond, the licensed psychologist who interviewed Marshall on behalf of the State of Florida in connection with this Jimmy Ryce proceeding. Marshall was also convicted of a January 23, 1994 aggravated assault on another prison inmate. Guards found this inmate dazed and confused on the floor of his cell. The victim said that Marshall had punched him. The victim's uniform pants were pulled down, with his buttocks exposed. The victim said that Marshall had stuck something in his buttocks and that it felt as if it was still there. On closer examination, the deputy could barely see part of the bristle end of a toothbrush protruding from the victim's anus. The victim told the deputy that during the attack he felt the toothbrush go in and out of his anus several times. Marshall also admitted this attack to Dr. Raymond. Prior to the civil commitment trial below, Marshall moved in limine to exclude unreliable hearsay evidence and to find the Jimmy Ryce Act's hearsay exception unconstitutional. He complained that the state relied extensively on hearsay testimony to establish its prima facie proof that appellant was a sexually violent predator. Specifically, he objected to the hearsay testimony of sheriff's deputies concerning appellant's anal assaults on the prison victims and to Sharon Moore's account of her daughter's statements about Marshall's sexual assault on her. Appellant
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premised his constitutional argument on the Confrontation Clause. The trial court denied the motion. The jury determined that Marshall was a sexually violent predator. Based on that finding, the trial court entered its order committing Marshall. From this order, Marshall appeals. Trial court determinations as to the constitutionality of a statute are reviewed de novo. Fla. Fish and Wildlife Conservation Comm'n v. Caribbean Conservation Corp., 789 So. 2d 1053, 1054 (Fla. 1st DCA 2001). The Jimmy Ryce Act provides for the involuntary commitment of persons convicted of sexual offenses who are found to be sexually violent predators. Westerheide v. State, 831 So. 2d 93, 97 (Fla. 2002) (plurality opinion). The Act requires a jury to find by clear and convincing evidence that the person is a violent sexual predator who has a mental abnormality that predisposes the person to commit sexually violent offenses and that the person is likely to re-offend if not confined to a secure facility. Id. Civil commitment proceedings under the Jimmy Ryce Act are governed by the Florida Rules of Civil Procedure.

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