       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT
                              July Term 2014

                            GUY MORTIMER,
                               Petitioner,

                                     v.

                          STATE OF FLORIDA,
                             Respondent.

                              No. 4D14-496

                              [July 9, 2014]


   Petition for writ of habeas corpus to the Seventeenth Judicial Circuit,
Broward County; Bernard I. Bober, Jr., Judge; L.T. Case No.
2007CF12912CF10C.

  Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant
Public Defender, West Palm Beach, for petitioner.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mark Hamel,
Assistant Attorney General, West Palm Beach, for respondent.

PER CURIAM.

    At Guy Mortimer’s trial, the state offered evidence under a common law
hearsay exception; the legislature later codified this exception, but the
Florida Supreme Court declined to adopt it. In our earlier opinion we
affirmed Mortimer’s conviction based on the incorrect assumption that the
new hearsay exception would become the law of Florida. We therefore
grant the petition for writ of habeas corpus and remand to the circuit court
for a new trial. We stay issuance of the mandate to allow the state to seek
review of the certified questions set forth below.
   We certify the following questions as being of great public importance:
      (1) In light of Giles v. California, 554 U.S. 353 (2008) and
      Crawford v. Washington, 541 U.S. 36 (2004), does section
      90.804(2)(f), Florida Statutes (2012), violate the Sixth
      Amendment Confrontation Clause?
       (2) Does article I, section 16 of the Florida Constitution afford
       an accused greater protection than the Sixth Amendment of the
       United States Constitution with regard to confronting adverse
       witnesses at trial?1
STEVENSON and LEVINE, JJ. concur.
GROSS, J., concurs specially with opinion.
GROSS, J., concurring specially.
   I concur in the majority opinion and write to provide further
background on the history of this case. A decision in the rules or jury
instruction adoption process does not mean that the Supreme Court will
not reconsider an issue in the context of an actual case. See, e.g., In re
Amends. to Fla. Rule of Crim. Pro. 3.852, No. SC13-2295, 2014 WL
1722473, at *1 n.1 (Fla. Apr. 24, 2014) (amending Florida Rule of Criminal
Procedure 3.852, on the Court’s own motion, in response to the rule’s
problematic application in a case); In re Amends. to Std. Jury Instrs. in
Crim. Cases—Instr. 7.7, 41 So. 3d 853, 853 (Fla. 2010) (authorizing the
publication and use of an interim standard jury instruction after finding
the previously-adopted standard jury instruction constituted fundamental
error); see also Ser-Nestler, Inc. v. Gen. Fin. Loan Co., 167 So. 2d 230, 232
(Fla. 3d DCA 1964) (“The Supreme Court is vested with the sole authority
to promulgate, rescind and modify [procedural] rules . . . . ”). It is possible
that in considering the hearsay exception here at issue, the Supreme Court
did not have the benefit of full briefing of the constitutional issue involved.
    Mortimer was convicted of felony murder and robbery with a firearm.
At trial, Edder Joseph was a key state witness. At Mortimer’s behest,
Joseph was terrorized by drive-by shootings at his home and was later
shot in the face, knee, and ankle. Mortimer v. State, 100 So. 3d 99, 101-
02 (Fla. 4th DCA 2012). By the time of trial, the state was unable to locate
Joseph and the trial judge found him to be unavailable. Id. at 102. During
trial, the state offered Joseph’s earlier testimony at a codefendant’s bond
hearing under the common law hearsay exception of forfeiture by
wrongdoing. Id. at 102-03. After the trial, in 2012, the legislature codified
this common law hearsay exception by enacting section 90.804(2)(f),
Florida Statutes (2012). See Ch. 2012-152, Laws of Fla.
    Section 90.804(2)(f) provides:

1The Supreme Court did not mention article I, section 16 when it declined to
adopt section 90.804(2)(f). However, as Mortimer argues, the Supreme Court is
free to apply the Florida Constitution in a way that provides “broader or greater
protection” than the United States Constitution. But see State v. Hosty, 944 So.
2d 255, 259 n.4 (Fla. 2006).

                                      -2-
         (2) The following are not excluded under s. 90.802,
         provided that the declarant is unavailable as a witness:
         ...
               (f) Statement offered against a party that
               wrongfully      caused        the     declarant’s
               unavailability.—A statement offered against a
               party that wrongfully caused, or acquiesced in
               wrongfully causing, the declarant’s unavailability
               as a witness, and did so intending that result.
   Joseph’s earlier testimony falls squarely within the 90.804(2)(f)
exception to the rule against hearsay—Joseph was unavailable and
Mortimer “wrongfully caused, or acquiesced in wrongfully causing,”
Joseph’s unavailability at trial. In our review of Mortimer’s convictions,
we found that it was error to admit the testimony under a common law
hearsay exception, since section 90.802 provides that hearsay evidence is
inadmissible, “[e]xcept as provided by statute.” Mortimer, 100 So. 3d at
102. Nonetheless, we affirmed the conviction because we found that at
any new trial, Joseph’s testimony at the bond hearing would be admissible
under section 90.804(2)(f).
   In a classic example of judicial overconfidence, we wrote that “[i]t is
almost certain that our Supreme Court will adopt section 90.804(2)(f).” Id.
at 104. Relying largely upon Justice Scalia’s opinion in Giles v. California,
554 U.S. 353 (2008), we reasoned as follows:
      Long part of the common law tradition, this hearsay exception
      involves a “form[ ] of testimonial statements” that “were
      admitted at common law even though they were
      unconfronted.” Giles, 554 U.S. at 358. The basis for the
      hearsay exception is deeply rooted in equity and justice; the
      exception is directed at “conduct designed to prevent a witness
      from testifying. The absence of a forfeiture rule covering this
      sort of conduct would create an intolerable incentive for
      defendants to bribe, intimidate, or even kill witnesses against
      them.” Id. at 365.
Mortimer, 100 So. 3d at 104.
   In 2013, the Florida Supreme Court declined to adopt section
90.804(2)(f) “to the extent it is procedural in light of constitutional
concerns,” citing Crawford v. Washington, 541 U.S. 36 (2004). In re
Amends. to the Fla. Evidence Code, No. SC13-98, 2013 WL 6500888, at *1
(Fla. Dec. 12, 2013).


                                      -3-
   The constitutional concern raised by the Florida Supreme Court is
whether section 90.804(2)(f) contravenes the Sixth Amendment
Confrontation Clause. That concern is allayed by Giles v. California, where
Justice Scalia explained that Crawford’s constitutional bar to
unconfronted, out of court testimonial statements did not apply to the
“forfeiture by wrongdoing” doctrine, which was codified by Federal Rule of
Evidence 804(b)(6).     Giles, 554 U.S. at 357-68; see also Davis v.
Washington, 547 U.S. 813, 833 (2006) (describing Rule 804(b)(6) as a rule
“which codifies the forfeiture doctrine”).
   Giles recognizes that Crawford “acknowledged that two forms of
testimonial statements were admitted at common law even though they
were unconfronted.” 554 U.S. at 358. One of these “forms” was the
common law doctrine of forfeiture by wrongdoing, which “permitted the
introduction of statements of a witness who was ‘detained’ or ‘kept away’
by the ‘means or procurement’ of the defendant.” Id. at 359. The forfeiture
rule applied when the “defendant engaged in conduct designed to prevent
the witness from testifying.” Id. at 359, 365. Giles identifies the sound
policy reason behind the forfeiture rule: “The absence of a forfeiture rule
covering this sort of conduct would create an intolerable incentive for
defendants to bribe, intimidate, or even kill witnesses against them.” Id.
at 365.
   After demonstrating that admitting unconfronted testimony under the
doctrine of forfeiture by wrongdoing does not violate the Sixth Amendment
under Crawford, Giles observes that the Supreme Court approved Rule
804(b)(6) in 1997.2 Id. at 367. The Court refers to eleven of the twelve
states that have a similar forfeiture by wrongdoing hearsay exception as
being within the holding in Giles and Crawford. Giles, 554 U.S. at 367
n.2. No federal court that has considered rule 804(b)(6) has found a Sixth




2The language of Federal Rule of Evidence 804(b)(6) is identical to section
90.804(2)(f):

       Statement Offered Against a Party That Wrongfully Caused the
       Declarant’s Unavailability. A statement offered against a party
       that wrongfully caused—or acquiesced in wrongfully causing—the
       declarant’s unavailability as a witness, and did so intending that
       result.

Fed. R. Evid. 804(b)(6).

                                      -4-
Amendment violation.3 No state court has found a Sixth Amendment
violation when evaluating an evidentiary rule similar to 90.804(2)(f).4

3See  United States v. Dinkins, 691 F.3d 358, 382-83 (4th Cir. 2012), cert. denied,
133 S. Ct. 1278 (2013) (noting Rule 804(b)(6) adopted the well-established
common law hearsay exception); United States v. Baskerville, 448 F. App'x 243,
249 (3d Cir. 2011); Ponce v. Felker, 606 F.3d 596, 603-04 (9th Cir. 2010) (finding
Giles stated a new rule requiring proof of intent, but the forfeiture doctrine has
long been established and codified in Rule 804(b)(6)); Beckett v. Ford, 384 F. App’x
435, 447 (6th Cir. 2010); United States v. Nelson, 242 F. App’x 164, 170-71 (5th
Cir. 2007); United States v. Vallee, 304 F. App’x 916, 920-21 (2d Cir. 2008); United
States v. Johnson, 495 F.3d 951, 970-72 (8th Cir. 2007) (finding Rule 804(b)(6)
applied to trials prior to the rule’s enactment because the legal principle was “well
and widely recognized” when the crime took place); Hodges v. Att’y Gen., State of
Fla., 506 F.3d 1337, 1344 (11th Cir. 2007) (stating there was no more deserving
circumstance to apply the forfeiture by wrongdoing doctrine than the murder of
a witness); United States v. Martinez, 476 F.3d 961, 967 (D.C. Cir. 2007); United
States v. Montague, 421 F.3d 1099, 1102 (10th Cir. 2005); United States v.
Rodriguez-Marrero, 390 F.3d 1, 15-16 (1st Cir. 2004); United States v. Scott, 284
F.3d 758, 762 (7th Cir. 2002) (finding it “well-established” that any Confrontation
Clause rights are forfeited when a defendant wrongfully procures the
unavailability of a witness).

4Forty-one  states have adopted the forfeiture by wrongdoing exception to the
hearsay rule. Twenty-six have adopted the exception either by statute or by rule
of evidence. See Ala. R. Evid. 804(b)(5); Ariz. R. Evid. 804(b)(6); Cal. Evid. Code
§ 1350; Conn. Code Evid. § 8-6(8); Del. R. Evid. 804(b)(6); Ga. Code Ann. § 24-8-
804(b)(5); Haw. R. Evid. 804(b)(7); Idaho R. Evid. 804(b)(5); Ill. R. Evid. 804(b)(5);
Ind. R. Evid. 804(b)(5); Iowa R. Evid. 5.804(b)(6); Ky. R. Evid. 804(b)(5); La. Code
Evid. Ann. Art. 804(B)(7); Mass. R. Evid. 804(b)(6); Md. Code Ann., Cts. & Jud.
Proc. § 10-901 (West 2005); Mich. R. Evid. 804(b)(6); Miss. R. Evid. 804(b)(6); N.J.
R. Evid. 804(b)(9); N.M. R. Evid. 11-804(B)(5); N.D. R. Evid. 804(b)(6); Ohio R.
Evid. 804(B)(6); Pa. R. Evid. 804(b)(6); Tenn. R. Evid. 804(b)(6); Vt. R. Evid.
804(b)(6); Wash. R. Evid. 804(b)(6); Wyo. R. Evid. 804(b)(7). Our research has
located no state court case invalidating any of these rules or statutes.

   Fifteen states and the District of Columbia have adopted the forfeiture by
wrongdoing exception to the hearsay rule through case law. See, e.g., Ross v.
State, No. 09-12-00283-CR, 2013 WL 4774100, at *1 (Tex. App.-Beaumont Sept.
4, 2013, pet. ref’d); State v. Hawthorne, 833 N.W.2d 873, at *2 (Wis. Ct. App.
2013), rev. denied, 838 N.W.2d 637 (Wis. 2013); State v. Weathers, 724 S.E.2d
114, 116 (N.C. Ct. App. 2012), cert. denied, 743 S.E.2d 203 (N.C. 2013); Ward v.
United States, 55 A.3d 840, 848 (D.C. 2012); Crawford v. Commonwealth, 704
S.E.2d 107, 123 (Va. 2011); State v. Cox, 779 N.W.2d 844, 850-51 (Minn. 2010);
State v. Poole, 232 P.3d 519, 522-23 (Utah 2010); Hunt v. State, 218 P.3d 516,
518 (Okla. Crim. App. 2009); State v. Mechling, 633 S.E.2d 311, 325-26 (W. Va.
2006); People v. Geraci, 649 N.E.2d 817, 820-21 (N.Y. 1995); State v. McLaughlin,

                                        -5-
    We have held that for the purpose of article V, section 2(a) of the Florida
Constitution that section 90.804(2)(f) is a procedural statute. Mortimer,
100 So. 3d at 103. The Florida Supreme Court declined to adopt the
statute to “the extent that it is procedural,” In re Amendments, 2013 WL
6500888, at *1, which means that the statute is unconstitutional because
it contravenes article V, section 2(a). There is thus no operative statute
that would authorize the admission of Joseph’s hearsay testimony, a
requirement of section 90.802.
   Mortimer is entitled to habeas relief because a key assumption of our
earlier opinion was in error. We assumed that at any retrial Joseph’s
hearsay testimony would be admissible. Because the Supreme Court did
not adopt section 90.804(2)(f), that is not the case. This is an unusual
circumstance that allows an appellate court to correct an erroneous ruling
in an earlier appeal to avoid a manifest injustice. See State v. Akins, 69
So. 3d 261, 268 (Fla. 2011); Coleman v. State, 128 So. 3d. 193, 194 (Fla.
5th DCA 2013); Haager v. State, 36 So. 3d 883, 884 (Fla. 2d DCA 2010).
                             *        *         *




265 S.W.3d 257, 272-73 (Mo. 2008); Vasquez v. People, 173 P.3d 1099, 1103
(Colo. 2007); State v. Tayman, 960 A.2d 1151, 1155-56 (Me. 2008); State v.
Sanchez, 177 P.3d 444, 453-54 (Mont. 2008).


                                     -6-
