       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                    LATRAIL ONRILLIOUS JONES,
                             Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D13-963

                          [November 25, 2015]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Robert R. Makemson, Judge; L.T. Case No. 562011CF
003046A.

  Carey Haughwout, Public Defender, and Virginia Murphy, Assistant
Public Defender, West Palm Beach, for appellant.

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

KLINGENSMITH, J.

    Latrial Onrillious Jones (“appellant”) appeals his convictions for
burglary of a dwelling, criminal mischief, and petit theft. He argues that
the trial court abused its discretion by refusing to admit the deposition
testimony of a deceased witness as substantive evidence in light of her
unanticipated death prior to trial. Appellant never moved to perpetuate
this testimony pursuant to Florida Rule of Criminal Procedure 3.190(i)
(“rule 3.190(i)”), but argues the deposition could have been properly
admitted under section 90.804, Florida Statutes, because the witness
was unavailable. For the reasons set forth below, we find that the trial
court did not abuse its discretion by refusing to admit the deposition
testimony into evidence, and affirm.

   A party is permitted to admit:

      Testimony given as a witness at another hearing of the same
      or a different proceeding, or in a deposition taken in
      compliance with law in the course of the same or another
      proceeding, if the party against whom the testimony is now
      offered . . . had an opportunity and similar motive to develop
      the testimony by direct, cross, or redirect examination.

§ 90.804(2)(a), Fla. Stat. (2012) (emphasis added).

    Compliance with the law, as required by this statute, also means
compliance with the Florida Rules of Criminal Procedure. See Rodriguez
v. State, 609 So. 2d 493, 499 (Fla. 1992). As such, when a discovery
deposition is taken pursuant to Florida Rule of Criminal Procedure 3.220
(“rule 3.220”), the proper method for perpetuating that deposition
testimony is found in rule 3.190(i). The rule states, in pertinent part:

         (i) Motion to Take Deposition to Perpetuate
      Testimony.
         (1) After the filing of an indictment or information on
      which a defendant is to be tried, the defendant or the state
      may apply for an order to perpetuate testimony.            The
      application shall be verified or supported by the affidavits of
      credible persons that a prospective witness resides beyond
      the territorial jurisdiction of the court or may be unable to
      attend or be prevented from attending a trial or hearing, that
      the witness’s testimony is material, and that it is necessary
      to take the deposition to prevent a failure of justice. The
      court shall order a commission to be issued to take the
      deposition of the witnesses to be used in the trial and that
      any nonprivileged designated books, papers, documents, or
      tangible objects be produced at the same time and place. If
      the application is made within 10 days before the trial date,
      the court may deny the application.

Fla. R. Crim. P. 3.190(i)(1).

   The case law is clear that even when a potential witness dies after
providing deposition testimony, the deposition will not be admissible as
substantive evidence in a criminal trial unless the party attempting to
enter it has moved to perpetuate the testimony pursuant to rule 3.190(i).
In State v. James, 402 So. 2d 1169, 1171 (Fla. 1981), the Florida
Supreme Court held that “discovery depositions [taken pursuant to rule
3.220 and not perpetuated pursuant to rule 3.190(i)] may not be used as
substantive evidence in a criminal trial.”     In Rodriguez, the court
considered the interaction between chapter 90 of the Florida evidence
code and rule 3.190 in answering the question of whether it was error to
refuse to admit the testimony of an unavailable witness as substantive

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evidence pursuant to the hearsay exception in section 90.804(2)(a). 609
So. 2d at 497-99. The court stated:

          We are presented with the question of whether a
      deposition is admissible as substantive evidence, under
      section 90.804(2)(a) of the evidence code, when, at the time
      of its taking, opposing counsel is not alerted by compliance
      with Rule of Criminal Procedure 3.190(j)[1] that the
      deposition may be used at trial. We hold that it is not.
      Accord [James]; Campos v. State, 489 So. 2d 1238 (Fla. 3d
      DCA 1986) (discovery deposition that qualifies as a hearsay
      exception under section 90.804(2)(a) is not admissible as
      substantive evidence unless it qualifies for such admission
      under the criminal rules of procedure); Jackson v. State, 453
      So. 2d 456 (Fla. 4th DCA 1984) (same); Terrell v. State, 407
      So. 2d 1039 (Fla. 1st DCA 1981) (same).

         It is generally accepted that when an exception to the rule
      excluding depositions as hearsay is not found in the Rules of
      Civil Procedure, the evidence code may provide such an
      exception in a civil proceeding. See, e.g., Dinter v. Brewer,
      420 So. 2d 932, 934 (Fla. 3d DCA 1982); Johns–Manville
      Sales Corp. v. Janssens, 463 So. 2d 242, 259 (Fla. 1st DCA
      1984), review denied, 467 So. 2d 999 (Fla.1985). However, a
      similar result is not warranted in a criminal case. This is so
      because greater latitude for the use of depositions in civil
      cases exists by virtue of Rule of Civil Procedure 1.330 which
      is much broader than the Rules of Criminal Procedure that
      provide for the use of deposition testimony.

          Rule of Criminal Procedure 3.220(h), as adopted by this
      Court, allows discovery depositions to be used by any party
      for the purpose of contradicting or impeaching the testimony
      of the deponent as a witness but makes no provision for
      their use as substantive evidence. If it had been our intent
      to allow such use, the rule would so state. Rather, Rule of
      Criminal Procedure 3.190(j) was enacted to assure that both
      parties have an opportunity and motive to fully develop
      deposition testimony before it can be used as substantive
      evidence in a criminal case.

1 Rule 3.190(i) was previously codified as rule 3.190(j), but the court modified
the lettering in 2009. See In re Amendments to the Fla. Rules of Criminal
Procedure, 26 So. 3d 534, 539-40 (Fla. 2009).

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         The holding in [James] that discovery depositions are not
      admissible as substantive evidence absent compliance with
      Rule 3.190(j) was in no way modified by the adoption of
      section 90.804(2)(a). In fact, the necessity of meeting the
      procedural requirements for perpetuating testimony before a
      deposition is admissible as substantive evidence is recognized
      in section 90.804(2)(a) by the express requirement that the
      deposition must be “taken in compliance with law.” Accord
      Terrell v. State, 407 So. 2d at 1041.        Accordingly, the
      deposition testimony was properly excluded in this case.

Id. at 498-99 (emphasis added) (footnotes omitted).

   The court explained the difference between a discovery deposition and
a deposition intended for use at trial in State v. Lopez, 974 So. 2d 340
(Fla. 2008). There, the court held:

         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.



                                    4
      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.

          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, 609 So. 2d at 498-99]
      (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); [James, 402 So. 2d at 1171]
      (“[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.

Id. at 349-50.

   Appellant cites to Chambers v. Mississippi, 410 U.S. 284 (1973), and
argues that his due process rights were violated when the trial court
refused to allow the deposition to be read at trial. However, this court
has previously discussed the admissibility of un-perpetuated,
exculpatory deposition testimony in light of the holding in Chambers and

                                    5
other Florida cases, including the James, Rodriguez, and Lopez
decisions, and declared that due process and procedural fairness applies
not just to the criminal defendant but to the State as well.

   In Leighty v. State, 981 So. 2d 484, 487-94 (Fla. 4th DCA 2008), a
case involving the unexpected unavailability of a defense witness, we
explained why permitting the defendant to read that witness’ discovery
deposition at trial deprived the State of a fair trial. There, we stated:

          In this case, neither side anticipated that Nieves would not
      be available to testify, and in fact, both sides expected she
      would be available since she was Leighty’s girlfriend. To the
      extent the state could anticipate that Nieves would attempt
      to help Leighty with her testimony, there is an obvious issue
      of credibility because of her romantic involvement with
      Leighty. But in the context of a discovery deposition, there
      could easily be other information for attacking the credibility of
      Nieves about which the state did not want to educate Leighty.
      Without notice that the defense was intending to use Nieves’
      deposition testimony as substantive evidence, the state did
      not have an opportunity and motive to fully develop her
      deposition testimony by rigorous cross-examination. Thus, the
      state was also deprived of the opportunity to test the
      reliability of her exculpatory testimony.

         Chambers stands for the proposition that constitutional
      rights and protections trump state court rules of evidence
      which exclude evidence only when the reliability of that
      evidence can be tested. Under the facts of this case, the
      state did not have a fair opportunity to test the reliability of
      Johnson’s assertion that Leighty had nothing to do with the
      robbery and murders, and the state did not have a fair
      opportunity to test the reliability of Nieves’ testimony that
      Johnson said those things. Thus, the trial court properly
      excluded the use of Nieves’ deposition transcript as
      substantive exculpatory evidence in this case even after
      considering the principles announced in Chambers.

Id. at 494 (emphasis added).

   The issue here is the disadvantage suffered by the party against
whom the un-perpetuated deposition testimony is entered as substantive
evidence. As the court made clear in Lopez, a deposition taken for
discovery purposes is different from deposition intended for use at trial.

                                      6
974 So. 2d at 349-50. Thus, when any party, the State or a defendant,
does not have prior notice of the opposing party’s intent to use deposition
testimony as substantive evidence due to a witness’s unavailability, it is
deprived of the opportunities described in Leighty to fully develop the
testimony by rigorous cross-examination and to test the reliability of that
testimony. 981 So. 2d at 494.

   In this case, the trial judge appropriately adhered to the law as set
forth in the decisions discussed herein, and did not abuse his discretion
by excluding the deceased witness’ deposition testimony.

   Affirmed.

WARNER and LEVINE, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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