           DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                  FOURTH DISTRICT

                                  GIL CAMACHO,
                                     Appellant,

                                          v.

                               STATE OF FLORIDA,
                                    Appellee.

                                   No. 4D14-448

                                   [May 18, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Melinda Brown, Acting Circuit Judge; L.T. Case No. 11-
12367CF10A.

  Eric T. Schwartzreich of Schwartzreich and Associates, P.A., Fort
Lauderdale, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Assistant Attorney General, West Palm Beach, for appellee.

LEVINE, J.

   The issue presented for our review is whether the victim’s prior sworn
testimony from an Arthur hearing is admissible when the victim’s death
rendered her “unavailable” for trial. We find that appellant’s direct
examination of the victim during the Arthur hearing was the functional
equivalent of “significant cross-examination.” Therefore, the trial court did
not err in admitting the Arthur hearing testimony. We also find the other
issues raised by appellant to be without merit, and thus we affirm
appellant’s convictions.

   The lower court held an Arthur hearing 1 to determine appellant’s
entitlement to pre-trial release. At the hearing, appellant called the victim
to testify because the state had not done so. According to the victim,
appellant had grabbed her without provocation, beat her, and trapped her
in a room. Appellant then struck the victim with a “samurai sword.”
Appellant allegedly tried to strike her in the head, but she lifted both of

1   See State v. Arthur, 390 So. 2d 717 (Fla. 1980).
her arms to protect herself. Eventually, appellant’s son took the victim to
the hospital, where she was treated for severe damage to her arms.
Appellant’s reason for attacking her with a sword, according to the victim,
was that appellant had already “marked [her] face” and did not want to go
to jail again.

   Appellant attempted to impeach the victim several times during her
testimony. Appellant inquired into the victim’s drug and alcohol use. The
victim admitted that she had done crack cocaine the night before the
incident, but had not used crack cocaine on the day of the incident.
Appellant also elicited testimony that the victim had two prior felony
convictions. Appellant asked about alleged domestic violence between
appellant and the victim, and the victim admitted that when the police had
been called it had been the victim, not appellant, who was arrested.

    The state then examined the victim and elicited more testimony about
the victim’s account of the incident. When the state concluded its
examination, the trial court told the defense attorney, “Just a few more
questions, then I’ll permit [defense counsel] to cross-examine.” Defense
counsel then examined the victim as to the testimony the state had just
elicited. This second examination was replete with unobjected-to leading
questions. 2 Defense counsel also took this opportunity to confront the

2 “[Defense Attorney]: Prior to being cut you said you were beaten and you had
marks on your face, which is why he freaked out?
...
[Victim]: He just marked my face, not marks. Just one, he made one mark.
[Defense Attorney]: Where was that mark?
[Victim]: Huh? I don’t even remember, because this is what he told me. There is
pictures [sic].
...
[Defense Attorney]: You were hit in the face; correct?
[Victim]: Yes.
[Defense Attorney]: You would have marks somewhere on your face?
[Victim]: Wasn’t there any?
[Defense Attorney]: I don’t know. Let me show you a picture.
[The defense attorney then showed the victim a picture of her in the hospital.]
[Defense attorney]: Do you see any marks on your face in that picture?
[Victim]: Okay. That’s only one side; right?
[Defense Attorney]: I agree.
[Victim]: Must have been the other side.
[Defense Attorney]: Must have been. Okay. And this is when you were in the
hospital so it was relatively right after the incident, correct, within a couple of
days, give or take?
[Victim]: Okay.
[Defense Attorney]: You were in the hospital three or four days?

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victim with a picture of her face, taken shortly after the incident. Although
the victim claimed the appellant had “marked [her] face,” her face did not
show any signs of injury in the picture.

   After the Arthur hearing, and before the commencement of the trial, the
victim died. The state then moved to admit the victim’s prior testimony
from the Arthur hearing into evidence. The trial court permitted the
admission of the victim’s prior testimony into evidence over appellant’s
objection. Appellant was convicted of attempted second-degree murder
and false imprisonment. Appellant appeals his convictions.

   Whether appellant had a prior opportunity to cross-examine or confront
the victim is a question of law which we review de novo. Petit v. State, 92
So. 3d 906, 910 (Fla. 4th DCA 2012).

   The Sixth Amendment of the United States Constitution guarantees
that “[i]n all criminal prosecutions, the accused shall enjoy the right . . .
to be confronted with the witnesses against him.” Amend. VI, U.S. Const.
Further, in the seminal case of Crawford v. Washington, 541 U.S. 36
(2004), the United States Supreme Court stated that “[w]here testimonial
evidence is at issue . . . the Sixth Amendment demands what the common
law required: unavailability and a prior opportunity for cross-
examination.” Id. at 68. Thus, under the Confrontation Clause, admission
of an unavailable declarant’s testimonial communications requires that
the defendant have a prior opportunity to cross-examine the declarant.

    In the present case, the victim gave testimony, or a “testimonial
communication,” during the hearing, and the victim’s death rendered her
“unavailable.” The remaining question is whether the direct examination
of the victim by appellant’s counsel during the Arthur hearing satisfies the
requirement that the accused have a prior opportunity to cross-examine
or confront the witness against him.

    “[T]he requirement for confrontation is satisfied where the opportunity
is exercised, is more than ‘de minimis,’ and is ‘the equivalent of significant
cross-examination.’” State v. Contreras, 979 So. 2d 896, 909 (Fla. 2008)
(quoting Ohio v. Roberts, 448 U.S. 56 (1980)). 3 In Roberts, the defendant


[Victim]: Yes sir.”
3 As the Florida Supreme Court has noted, although the United States Supreme

Court “receded from the Roberts reliability test in Crawford [v. Washington, 541
U.S. 36 (2004)],” it 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. The Supreme Court noted that the testimony from

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called a witness during a preliminary hearing and attempted to elicit
exculpatory testimony from her. The defendant did not ask for the witness
to be declared hostile and did not ask permission to cross-examine her.
Nevertheless, the Court stated that the questioning took the “form” of a
cross-examination because it was “replete with leading questions.”
Roberts, 448 U.S. at 70. Furthermore, the examination “comported with
the principal purpose of cross-examination: to challenge ‘whether the
declarant was sincerely telling what he believed to be the truth, whether
the declarant accurately perceived and remembered the matter he related,
and whether the declarant’s intended meaning is adequately conveyed by
the language he employed.’” Id. at 71 (citation omitted) (emphasis
omitted). Thus, the Court concluded the questioning was “the equivalent
of significant cross-examination” regardless of “however state law might
formally characterize the questioning.” Id. at 70-71.

   In this case, the victim’s Arthur hearing testimony had all of the
characteristics of a cross-examination despite formally being called a
“direct examination.”     The examination took the “form” of cross-
examination. During the hearing, the defense attorney asked numerous
unobjected-to leading questions, “the principal tool and hallmark of cross-
examination.” See id. at 70. The examination also was a cross-
examination in substance. Appellant was permitted to impeach the victim
with her drug use and her prior felony convictions to undermine her
credibility. Furthermore, after the state elicited testimony of her account
of the incident, appellant was permitted to challenge her assertion that
appellant had “marked [her] face” by offering photographic evidence
showing that her face showed no signs of injury.

    Furthermore, the Arthur hearing itself was adversarial in nature. In an
Arthur hearing, “the state must come forward with a showing that the proof
of guilt is evident or the presumption is great.” Arthur, 390 So. 2d at 720.
Such a hearing is unlike, for example, a discovery deposition which “is at
odds with the concept of meaningful cross-examination” “because the
defendant is usually prohibited from being present, the motivation for the


a preliminary hearing was properly admitted in Roberts because the defendant
had examined the witness at that hearing.” Contreras, 979 So. 2d at 909 n.5
(citation omitted). Thus, although the reliability standard described in Roberts is
no longer the applicable Confrontation Clause test, Roberts continues to provide
guidance as to what constitutes a sufficient prior opportunity to cross-examine a
witness. See id. As Justice Scalia noted, “Even our recent cases, in their
outcomes, hew closely to the traditional line. [Roberts] admitted testimony from
a preliminary hearing at which the defendant had examined the witness.”
Crawford, 541 U.S. at 58.

                                        4
deposition does not result in the ‘equivalent of significant cross-
examination,’ and the resulting deposition cannot be admitted as
substantive evidence at trial.” Contreras, 979 So. 2d at 910-11. See also
Vilseis v. State, 117 So. 3d 867 (Fla. 4th DCA 2013). However, in this case,
appellant was present, was motivated to undermine the strength of the
state’s case, and was permitted great latitude when confronting the victim.
Cf. Petit, 92 So. 3d at 913 (holding that testimony from a bond hearing was
admissible because the defendant had a sufficient opportunity to cross-
examine the witness); Thompson v. State, 995 So. 2d 532, 534 (Fla. 2d
DCA 2008) (stating that testimony from a preliminary hearing was
admissible because “the defendant was present and represented by
counsel who cross-examined the witness”).

   Appellant argues the Arthur hearing did not afford him a full
opportunity to cross-examine the victim and, had he known it would be
his last opportunity to examine the victim, he would have done so more
vigorously. But “Crawford does not require similarity of motive in the
previous judicial proceeding or mention a ‘meaningful’ opportunity for
cross-examination.” Petit, 92 So. 3d at 911. Rather, it requires only that
testimony from an unavailable witness be tested in the “crucible of cross-
examination.” See Crawford, 541 U.S. at 61.

    Although our state law “formally characterize[d]” appellant’s
examination of the victim as a direct examination, see Roberts, 448 U.S.
at 71, appellant’s examination satisfied the constitutional requirements of
confrontation because it was “more than ‘de minimis,’ and [was] ‘the
equivalent of significant cross-examination.’” See Contreras, 979 So. 2d
at 909 (quoting Roberts, 448 U.S. at 70). We therefore conclude that,
under these circumstances, it did not violate the Confrontation Clause to
admit the victim’s Arthur hearing testimony as substantive evidence at
trial.

   Affirmed.

STEVENSON and GERBER, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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