SC05-88 – State Of Florida v. Moroni Lopez

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State: Florida

Court: Supreme Court

Docket No: sc05-88

Case Date: 01/10/2008

Plaintiff: SC05-88 – State Of Florida

Defendant: Moroni Lopez

Preview:Supreme Court of Florida
No. SC05-88
STATE OF FLORIDA,
Petitioner,
vs.
MORONI LOPEZ,
Respondent.
[January 10, 2008]
QUINCE, J.
This case is before the Court for review of the decision of the First District
Court of Appeal in Lopez v. State, 888 So. 2d 693 (Fla. 1st DCA 2004). The
district court certified that its decision is in direct conflict with the decision of the
Fifth District Court of Appeal in Blanton v. State, 880 So. 2d 798 (Fla. 5th DCA
2004), review granted, No. SC04-1823 (Fla. Sept. 8, 2005).  We have jurisdiction.
See art. V, § 3(b)(4), Fla. Const. For the reasons set forth below, we approve the
decision of the First District Court of Appeal in Lopez that a prior discovery
deposition of a declarant by the defendant’s counsel did not qualify as a “prior
opportunity for cross-examination” under Crawford v. Washington, 541 U.S. 36

(2004), and that the admission of this testimonial statement at trial violated the
defendant’s confrontation rights.  We also disapprove the decision of the Fifth
District in Blanton to the extent that it conflicts with this opinion.1
STATEMENT OF THE CASE AND FACTS
Moroni Lopez was convicted of possession of a firearm by a convicted
felon. The evidence presented against Lopez was a hearsay statement made to a
police officer by a person who stated that he had observed Lopez in possession of a
firearm.
Police officers were dispatched to an apartment complex in Tallahassee to
investigate a reported kidnapping and assault.  The alleged victim, Hector Ruiz,
met the police officers in the parking lot and told Officer Mel Gaston that a man
had abducted him in his own car at gunpoint. Ruiz appeared upset and nervous as
he spoke to the officer. Ruiz surreptitiously indicated that Lopez, who was also
standing in the parking lot, was the person who had pointed a gun at him and
forced him out of his home.  Ruiz also told Officer Frank Arias that the gun used in
his abduction was still in his car. The officers’ search of the car revealed a loaded
.38 caliber Smith & Wesson revolver under the front passenger seat.
Officer Arias advised Lopez of his rights and questioned him about the gun.
Lopez admitted that the gun was his and explained that he had hidden the gun in
1.  The Fifth District’s decision in Blanton is also before this Court for review. See
Blanton v. State, No. SC04-1823 (Fla. order granting review filed Sept. 8, 2005).
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Ruiz’s car when he saw the police officers.  The State charged Lopez with armed
kidnapping, assault with a weapon, and possession of a firearm by a convicted
felon. Lopez pled not guilty and sought discovery from the State.   Ruiz appeared
for a discovery deposition and was questioned by Lopez’s defense counsel.  At the
time of trial, however, Ruiz was unavailable as a witness and the State was unable
to serve him with a subpoena.
Just before trial, the State informed the court and defense counsel that it
would be proceeding only on the charge of possession of a firearm by a convicted
felon. The defendant moved to exclude Ruiz’s statement to Officer Gaston.  At a
hearing outside the presence of the jury, the prosecutor argued that the statement
was admissible as an excited utterance.  Defense counsel argued that the statement
did not qualify under the excited utterance exception and also argued that the
admission of the statement would violate Lopez’s Sixth Amendment confrontation
rights. The trial court ruled that the statement was admissible and allowed the
officers to relate an edited version of the events.  The jurors were not told about the
alleged abduction, but did hear Ruiz’s statement to Officer Gaston identifying
Lopez as the person who had the revolver.
Lopez testified in his own defense.  He denied possession of the firearm and
repudiated the admission attributed to him by Office Arias.   Lopez also stated his
belief that he had been set up by Ruiz and his employer Mario Morqucho in
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retaliation for sexual battery complaints he had made against them.   The jury found
Lopez guilty with a special finding that he was in actual possession of the firearm.
Lopez was sentenced to three years in the Department of Corrections with a three-
year mandatory minimum term.
On appeal, the First District Court of Appeal concluded that the admission of
Ruiz’s testimonial statement without an opportunity for cross-examination violated
Lopez’s confrontation rights.  Lopez v. State, 888 So. 2d 693, 695 (Fla. 1st DCA
2004).  The First District agreed with the trial court that Ruiz’s statement was an
excited utterance because the abduction at gunpoint was a startling event, Ruiz
made the statement in question only six to eight minutes after the crime had been
reported, and Ruiz appeared to be under the stress of the event when he made the
statement as he appeared nervous and was speaking rapidly.  Id. at 696-97. The
First District also concluded that Ruiz’s “excited utterance” identifying Lopez as
the suspect in response to Officer Gaston’s questioning at the crime scene was a
testimonial statement because Ruiz knew that this was a form of accusation that
would be used against the suspect. Id. at 699-700. The First District concluded
that a prior discovery deposition of Ruiz by Lopez’s counsel did not qualify as a
“prior opportunity for cross-examination” under Crawford. Id. at 700-01. Finally,
the First District certified conflict with the Fifth District’s decision in Blanton, 880
So. 2d at 798, on the discovery deposition issue.  Lopez, 888 So. 2d at 701-02.
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ANALYSIS
The State contends that the victim’s statement was not testimonial and thus
was outside the scope of Crawford v. Washington. The State also argues that even
if the victim’s statement was testimonial, the Confrontation Clause was satisfied
when Lopez’s counsel conducted a pretrial deposition of the witness who did not
testify at trial. Lopez, on the other hand, asserts that the victim’s statement was
testimonial in violation of Crawford. Lopez further asserts that the pretrial
deposition here did not satisfy his constitutional right to confront his accuser and
that there was no opportunity for cross-examination because the witness did not
testify at trial.
Was the Victim’s Statement Testimonial under Crawford?
The trial court admitted Ruiz’s statement under the excited utterance hearsay
exception in section 90.803(2), Florida Statutes (2006).  Section 90.803(2)
authorizes the admission of “[a] statement or excited utterance relating to a
startling event or condition made while the declarant was under the stress of
excitement caused by the event or condition,” notwithstanding the general
prohibition against the admission of hearsay. The rationale for this exception is
that a statement made during a period of excitement is likely to be more reliable
than a statement made after a period of reflection.  See Evans v. State, 838 So. 2d
1090 (Fla. 2002). A person who is startled and excited does not have the capacity
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to analyze the facts or to make a conscious misrepresentation of the event. A
statement made during a period of excitement is therefore less likely to be
contrived.
With these guiding principles, the trial judge could properly conclude that
the statement at issue was an excited utterance because Ruiz’s abduction at
gunpoint was obviously a startling event and he appeared to still be under the stress
of that event when he made his statement to the officer, who described Ruiz as
being nervous, shaken, and speaking rapidly.  However, the mere fact that
evidence meets the requirements of an exception to the hearsay rule does not
necessarily mean it is admissible as evidence.  The statement might be
inadmissible for other reasons, including that the use of the statement would
violate the defendant’s constitutional right of confrontation.  The Sixth
Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against him.” U.S. Const. amend.
VI. The right guaranteed by this part of the Sixth Amendment differs from the
kind of protection that is afforded by state evidentiary rules governing the
admission of hearsay.
The standard for determining whether the admission of a hearsay statement
against a criminal defendant violates the right of confrontation was modified by the
Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004). Before Crawford,
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the issue was controlled by Ohio v. Roberts, 448 U.S. 56, 66 (1980), which held
that a hearsay statement could be admitted in a criminal trial without violating the
right of confrontation if it was shown that the declarant was unavailable and the
out-of-court statement bore adequate indicia of reliability.  This test focused on the
reliability of the statement. As explained in Roberts, a statement had adequate
indicia of reliability if it either fell within a firmly rooted hearsay exception or if it
bore “particularized guarantees of trustworthiness.”  Id.
In Crawford, the Supreme Court dispensed with the Roberts reliability
analysis for testimonial hearsay statements and held the admission of a hearsay
statement made by a declarant who does not testify at trial violates the Sixth
Amendment if (1) the statement is testimonial, (2) the declarant is unavailable, and
(3) the defendant lacked a prior opportunity for cross-examination of the declarant.
The Court emphasized that if “testimonial” evidence is at issue, “the Sixth
Amendment demands what the common law required:  unavailability and a prior
opportunity for cross-examination.”  Crawford, 541 U.S. at 68.  “Only [testimonial
statements] cause the declarant to be a ‘witness’ within the meaning of the
Confrontation Clause.” Davis v. Washington, 126 S. Ct. 2266, 2273 (2006).  “It is
the testimonial character of the statement that separates it from other hearsay that,
while subject to traditional limitations upon hearsay evidence, is not subject to the
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Confrontation Clause.” Id.  Thus, we must initially determine whether the
statement at issue in the instant case was testimonial.
While Crawford did not establish a precise definition of the term
“testimonial,” the Supreme Court did provide some guidance, holding that, at a
minimum, statements are testimonial if the declarant made them “at a preliminary
hearing, before a grand jury, or at a former trial; and [in] police interrogations.”
Crawford, 541 U.S. at 68.  Since Crawford was decided, courts have come to
different conclusions on the question of whether statements made in response to
interrogation during the early stages of an investigation are testimonial.  The
Supreme Court, however, recently addressed this question in Davis, providing
guidance for our analysis of the nature of the victim’s statement here.
Davis further clarified Crawford’s definition of “testimonial,” analyzing two
separate scenarios involving witness statements.  Davis actually involved two
separate cases decided by the Washington and Indiana Supreme Courts, State v.
Davis, 111 P.3d 844 (Wash. 2005), and Hammon v. State, 829 N.E.2d 444 (Ind.
2005).  In both cases, the trial courts admitted statements made by victims of
domestic battery and the defendants argued that the admission of the statements, in
the absence of the declarant’s testimony at trial, violated their Sixth Amendment
right to confrontation.  In Davis, the relevant statements were made to a 911
emergency operator as the declarant was actually being attacked by the defendant.
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The declarant identified Davis as the assailant.  In Hammon, the relevant
statements were made to police officers who had responded to a domestic dispute
call.  The declarant recounted to the police the details of a previous attack by
Hammon.  The Supreme Court concluded that the statements made during the 911
call in Davis were nontestimonial, while the statements to the police officers in
Hammon were testimonial.  As explained by the Supreme Court, the distinction
rests on the primary purpose of the interrogation in each instance.   126 S. Ct. at
2273-74.
In Davis, the questioning by the 911 operator was to enable the responding
officers to meet an ongoing emergency.  The Supreme Court noted the following
circumstances in Davis: the declarant was speaking about events as they were
actually happening; the declarant was facing an ongoing emergency and made the
911 call in order to seek help against a bona fide physical threat; the elicited
statements were crucial to resolving the ongoing emergency (i.e., the 911 operator
asked who was attacking the caller, whether the attacker was using a weapon, and
whether the attacker had been drinking); and the declarant was giving frantic
answers over the phone in the midst of hectic events and an unsafe environment.
126 S. Ct. at 2276-77.
In contrast, the Supreme Court concluded that the primary purpose of the
interrogation in Hammon was to establish or prove past events potentially relevant
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to later criminal prosecution.  The Supreme Court noted very different
circumstances surrounding the interrogation in Hammon: there was no emergency
in progress when the officers arrived; the declarant was alone on the front porch
and told the officers that she was fine and in no immediate danger; the officer
questioned the declarant in a separate room about “what had happened”; the
declarant delivered a narrative of past events removed in time from the danger she
described; and the officer asked the declarant to execute a written affidavit in order
to establish the events that had occurred previously.  The Supreme Court described
these statements in Hammon as “an obvious substitute for live testimony, because
they do precisely what a witness does on direct examination; they are inherently
testimonial.”                                                                            126 S. Ct. at 2278-79.
From these two scenarios, the Davis Court established a general rule for
determining whether statements are testimonial or nontestimonial:
Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance to
meet an ongoing emergency.  They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal
prosecution.
Davis, 126 S. Ct. at 2273-74.
Applying this analysis to the instant case, we conclude that Ruiz’s statement
to Officer Gaston was testimonial, and is therefore within the scope of Crawford.
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The circumstances here indicate that there was no ongoing emergency at the time
Officer Gaston questioned Ruiz.  Officer Gaston arrived at the scene of the crime
six to eight minutes after the crime had been reported.  Lopez, 888 So. 2d at 697.
At the time Officer Gaston approached him, Ruiz was standing in a parking lot
about twenty-five yards away from Lopez, separated from his alleged abductor in
much the same way the declarant in Hammon was separated from defendant
Hammon when the police arrived. Id. at 695. A short time later, Ruiz revealed
that the gun that was allegedly used in his abduction was under the front passenger
seat of his car, presenting no immediate danger at the time Officer Gaston arrived.
Id.  Even though the questioning of Ruiz was not as formal as it may have been in
Hammon, it seems clear that the “primary purpose of the interrogation [was] to
establish or prove past events potentially relevant to later criminal prosecution.”
Davis, 126 S. Ct. at 2274. Therefore, the statement in Lopez was testimonial.
Was the Discovery Deposition a Prior Opportunity to Cross-Examine?
Because we have determined Ruiz’s statement to Officer Gaston was
testimonial, it is subject to analysis under Crawford. In order for a testimonial
statement to be admissible under Crawford, the following two requirements must
be met: the declarant must be unavailable to testify at trial and the defendant must
have had a prior opportunity to cross-examine the declarant.  Crawford, 541 U.S. at
68.  The First District properly concluded that the first requirement of
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unavailability was met because the parties were not able to serve Ruiz with a
subpoena for trial because he apparently had absconded.  Lopez, 888 So. 2d at 700.
Thus, the remaining question is whether the discovery deposition of Ruiz by
defense counsel satisfies the requirement of an “opportunity to cross-examine”
under Crawford.
The First District concluded that the discovery deposition of Ruiz did not
satisfy Crawford’s cross-examination prong.  Lopez, 888 So. 2d at 701-02. The
First District noted a number of reasons why a discovery deposition does not
satisfy the requirement of an opportunity for cross-examination.  First, Florida
Rule of Criminal Procedure 3.220(h) was not designed as an opportunity to engage
in adversarial testing of the evidence against the defendant, nor is the rule
customarily used for the purpose of cross-examination.  Instead, the rule is used to
learn what the testimony will be and attempt to limit it.  Second, a discovery
deposition is not intended as an opportunity to perpetuate testimony for use at trial.
Third, the defendant is not entitled to be present during a discovery deposition
pursuant to rule 3.220(h). Id.  We agree.
In examining the history of the Sixth Amendment’s Confrontation Clause in
Crawford, the Supreme Court explained that it was based on the English common
law tradition of “live testimony in court subject to adversarial testing.”  Crawford,
541 U.S. at 43. The Supreme Court explained that this tradition was in contrast to
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the civil law that “condone[d] examination in private by judicial officers.”  Id.  The
Supreme Court further explained that the proposed federal Constitution did not
contain a right of confrontation, although many of the states’ declarations of rights
did. Id. at 48. In response to general criticism of this omission, the First Congress
included the Confrontation Clause in the proposal that became the Sixth
Amendment. Id. at 48-49. Early state decisions involving this right held that
depositions or other prior testimony could only be admitted against an accused if
he was present and had an opportunity to cross-examine the witness when the
testimony was given.  Id. at 49. The Supreme Court also explained that a “prior
opportunity to cross-examine” was both a “necessary” and “dispositive”
requirement to the admission of testimonial statements.  Id. at 55-56. The Supreme
Court stated most emphatically that “under no circumstances” shall the defendant
be deprived of “seeing the witness face to face and . . . subjecting him to the ordeal
of a cross-examination.”  Id. at 57 (quoting Mattox v. United States, 156 U.S. 237,
244 (1895)). Further, the Supreme Court explained that the Confrontation Clause
provides a procedural, not a substantive, guarantee.  Id. at 61.  “It commands, not
that evidence be reliable, but that reliability be assessed in a particular manner:  by
testing in the crucible of cross-examination.” Id. (emphasis added).
In Davis v. Alaska, 415 U.S. 308 (1974), the Supreme Court explained that
the right of the accused to be confronted with the witnesses against him is more
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than being allowed to confront the witnesses physically.  The primary interest
secured by confrontation is the right of cross-examination.  The Supreme Court
stated:
Cross-examination is the principal means by which the
believability of a witness and the truth of his testimony are tested.
Subject always to the broad discretion of a trial judge to preclude
repetitive and unduly harassing interrogation, the cross-examiner is
not only permitted to delve into the witness’ story to test the witness’
perceptions and memory, but the cross-examiner has traditionally
been allowed to impeach, i.e., discredit, the witness. . .                             . [T]he
exposure of a witness’ motivation in testifying is a proper and
important function of the constitutionally protected right of cross-
examination.
Id. at 316-17. Thus, it stands to reason that the prior opportunity to cross-examine
required by Crawford must serve the same functions.  In Ohio v. Roberts, 448 U.S.
56, 70 (1980), the Supreme Court addressed the adequacy of the defendant’s
examination of a declarant at an adversary preliminary hearing.2 The Supreme
Court noted that the testimony from a preliminary hearing was properly admitted
in Roberts because the defendant had examined the witness at that hearing.  Id.
Thus, we can discern that the requirement for confrontation is satisfied where the
opportunity is exercised, is more than “de minimis,” and is “the equivalent of
significant cross-examination.”  Roberts, 448 U.S. at 70; see also John F. Yetter,
2.  Even though the Supreme Court receded from the Roberts reliability test in
Crawford for testimonial hearsay statements, the Court cited Roberts with approval
for the proposition that prior trial or hearing testimony is admissible only if the
defendant had an adequate opportunity to cross-examine.  See Crawford, 541 U.S.
at 58.
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Wrestling with Crawford v. Washington and the New Constitutional Law of
Confrontation, Fla. B.J., Oct. 2004, at 26, 31.  In light of Crawford, the Colorado
Supreme Court recently held that its preliminary hearings, which are usually
restricted to a determination of probable cause and limit the opportunity for cross-
examination, “do[] not provide an adequate opportunity to cross-examine sufficient
to satisfy the Confrontation Clause requirements.”   People v. Fry, 92 P.3d 970, 978
(Colo. 2004).
The State contends that Florida’s rules of criminal procedure provide an
adequate opportunity for cross-examination through the opportunity to conduct a
discovery deposition and to perpetuate the testimony of a witness through a
deposition.  Florida Rule of Criminal Procedure 3.220(h)(1)(A) provides that after
the charging document has been filed the defendant may take the deposition of any
witness listed by the prosecutor as a Category A witness under rule
3.220(b)(1)(A)(i).3  Rule 3.220(h)(7) provides that a defendant is not to be
physically present at a deposition except by stipulation of the parties.  The court
can also order the defendant’s physical presence upon a showing of good cause.
3.  Category A witnesses include:  eyewitnesses; alibi witnesses and rebuttal to
alibi witnesses; witnesses present when a recorded or unrecorded statement was
made by a defendant or codefendant; investigating officers; witnesses known by
the prosecutor to have exculpatory material information; child hearsay witnesses;
and expert witnesses who have not provided a written report and curriculum vitae
or who are going to testify as to test results or give opinions subject to Frye v.
United States, 293 F. 1013 (D.C. Cir. 1923). See Fla. R. Crim. P.
3.220(b)(1)(A)(i).
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As explained in the committee notes, “[c]ases requiring the defendant’s presence
are the exception rather than the rule.” Fla. R. Crim. P. 3.220 comm. note (1989).
The Florida Supreme Court Commission on Criminal Discovery also explained
that it was a common complaint that “the presence of the defendant intimidates
[rape and child abuse] victims” and this “trauma to the victim surpasses the benefit
to the defense of having the defendant present at the deposition.”  Id. Because the
Commission found no right of a defendant to attend a deposition other than that
granted by the rules of discovery, the Commission stated its belief that “no such
right should exist in those cases,” i.e., rape and child sexual abuse cases.  Id.  Thus,
discovery depositions do not function as the equivalent of the cross-examination
opportunity envisioned by Crawford.
Professor Yetter pointed out this problem in his article dealing with the
constitutional law of confrontation post-Crawford. He noted that the 1989
amendment to the discovery rule prohibits the presence of a defendant at discovery
depositions without a court order or stipulation of the parties.   Yetter, supra, at 30.
Professor Yetter cautioned that “if a discovery deposition is to have any chance of
substitution for at-trial confrontation, the prosecution will at least have to stipulate
to the attendance of the defendant, who, in turn, will have to be given the
opportunity to attend.”  Id.
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Additionally, the purpose of a discovery deposition is at odds with the
concept of a meaningful cross-examination.  Often discovery depositions are
taken for the purpose of uncovering other evidence or revealing other
witnesses. As this Court has explained, the fundamental distinctions
between depositions taken pursuant to Florida Rule of Criminal Procedure
3.190(j) (Motion to Take Deposition to Perpetuate Testimony) and those
taken under rule 3.220 are:
Depositions taken pursuant to rule 3.190 are specifically taken for the
purpose of introducing those depositions at trial as substantive
evidence. Depositions taken pursuant to rule 3.220, on the other hand,
are for discovery purposes only and, for a number of reasons, assist in
shortening the length of trials.  How a lawyer prepares for and asks
questions of a deposition witness whose testimony may be admissible
at trial as substantive evidence under rule 3.190 is entirely different
from how a lawyer prepares for and asks questions of a witness being
deposed for discovery purposes under rule 3.220.  In effect, the
knowledge that a deposition witness’s testimony can be used
substantively at trial may have a chilling effect on a lawyer’s
questioning of such a witness.
State v. Green, 667 So. 2d 756, 759 (Fla. 1995). A defendant cannot be “expected
to conduct an adequate cross-examination as to matters of which he first gained
knowledge at the taking of the deposition.”  State v. Basiliere, 353 So. 2d 820,
824-25 (Fla. 1977).  This is especially true if the defendant is “unaware that this
deposition would be the only opportunity he would have to examine and challenge
the accuracy of the deponent’s statements.” Id. at 824.
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Finally, a deposition that is taken pursuant to rule 3.220 is only admissible
for purposes of impeachment and not as substantive evidence.  See Rodriguez v.
State, 609 So. 2d 493 (Fla. 1992) (ruling that only depositions taken pursuant to
rule 3.190(j) may be used as substantive evidence because rule 3.220 makes no
provision for the use of discovery depositions as substantive evidence); State v.
James, 402 So. 2d 1169, 1171 (Fla. 1981) (“[D]iscovery depositions may not be
used as substantive evidence in a criminal trial.”); Basiliere, 353 So. 2d at 823
(holding that deceased victim’s discovery deposition was not admissible as
evidence in defendant’s trial because defendant was not present during the
examination).  Cf. State v. Green, 667 So. 2d at 759 (ruling that an inconsistent
discovery deposition given by a victim who recanted at trial was not admissible as
substantive evidence under section 90.801(2)(a), Florida Statutes (1989), which
provided that an inconsistent statement given under oath in a deposition was not
hearsay).
Thus, the exercise of the right to take a discovery deposition under rule
3.220 does not serve as the functional substitute of in-court confrontation of the
witness because the defendant is usually prohibited from being present, the
motivation for the deposition does not result in the “equivalent of significant cross-
examination,” and the resulting deposition cannot be admitted as substantive
evidence at trial. In light of the analysis above, we hold that the discovery
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deposition of Ruiz by defense counsel did not satisfy the requirement of an
“opportunity to cross-examine” under Crawford. Because only one of the
Crawford requirements was satisfied, Ruiz’s statement to Officer Gaston was not
admissible at trial.
Was the Error Harmless?
“It is well established that violations of the Confrontation Clause, if
preserved for appellate review, are subject to harmless error review . . . and
Crawford does not suggest otherwise.”  United States v. McClain, 377 F.3d 219,
222 (2d Cir. 2004). Under Florida’s harmless error analysis, the reviewing court
must determine “whether there is a reasonable possibility that the error affected the
verdict.”  State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986).  The State, as the
beneficiary of the error, has the burden to show that the error was harmless.  Id.
“If the appellate court cannot say beyond a reasonable doubt that the error did not
affect the verdict, then the error is by definition harmful.”  Id.
Here, Lopez was charged with possession of a firearm by a convicted felon.4
Lopez, 888 So. 2d at 695. The evidence of this crime was Ruiz’s statement to
4.  As noted above, the State also originally charged Lopez with armed kidnapping
and assault with a weapon, but dropped those charges just before trial.
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Officer Gaston identifying Lopez as the person who had the revolver5 and Lopez’s
own statement to Officer Arias admitting that the revolver was his.  Id. at 695-96.
Lopez testified in his own defense and denied that he had possessed the firearm.
Id. at 696. He also repudiated the admission attributed to him by Officer Arias that
the gun was his, claiming that he had been set up by Ruiz and his employer in
retaliation for complaints that Lopez had made against them.  Id.
Without Ruiz’s statement tying the gun to Lopez, the only evidence of the
crime is Lopez’s own statement to Officer Arias, which he denies ever making.
While it is possible that the jury found Officer Arias more credible than Lopez, it
cannot be said “beyond a reasonable doubt that the error did not affect the verdict.”
DiGuilio, 491 So. 2d at 1139.  “[T]he reviewing court must resist the temptation to
make its own determination of whether a guilty verdict could be sustained by
excluding the impermissible evidence and examining only the permissible
evidence.” Goodwin v. State, 751 So. 2d 537, 542 (Fla.1999). In light of this
standard, the State has not met its burden of showing that the erroneous admission
of Ruiz’s statement was harmless error.
CONCLUSION
5.  As noted above, the trial court only admitted an edited version of Ruiz’s
statement identifying Lopez as the person who had the gun, but excluded the
portion pertaining to the alleged abduction.
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Therefore, we approve the decision of the First District Court of Appeal
holding that the statement in this case was testimonial and that the discovery
deposition was not a sufficient opportunity for cross-examination of the declarant.
We disapprove of the Fifth District Court of Appeal’s decision in Blanton on the
discovery deposition issue to the extent that it is inconsistent with this opinion.  We
also remand this case for further proceedings consistent with this opinion.
It is so ordered.
LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, CANTERO, and BELL, JJ.,
concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Application for Review of the Decision of the District Court of Appeal - Certified
Direct Conflict of Decisions
First District - Case No. 1D03-2761
(Leon County)
Bill McCollum, Attorney General, Robert R. Wheeler, Bureau Chief Criminal
Appeals, and Felicia A. Wilcox, Assistant Attorneys General, Tallahassee, Florida,
for Petitioner
Nancy A. Daniels, Public Defender, and Jamie Spivey, Assistant Public Defender,
Second Judicial Circuit, Tallahassee, Florida,
for Respondent
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Paula S. Saunders, Office of the Public Defender, Tallahassee, Florida, and
Michael Robert Ufferman, Tallahassee, Florida, for the Florida Association of
Criminal Defense Lawyers,
as Amicus Curiae
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