Herrera-Vega v. State

22 Citing cases

  1. State v. Contreras

    979 So. 2d 896 (Fla. 2008)   Cited 28 times
    Holding statements child victim made to member of child protection team testimonial in nature

    See, e.g., People v. Vigil, 127 P.3d 916, 927-28 (Colo. 2006) (holding that an excited utterance a child made to his father and his father's friend immediately after a sexual assault was not testimonial); Mencos v. State, 909 So.2d 349, 351 (Fla. 4th DCA 2005) (concluding that child victim's statements to her mother that were overheard by a police detective were not testimonial and thus did not violate the Confrontation Clause); Herrera-Vega v. State, 888 So.2d 66 (Fla. 5th DCA 2004) (finding that statements made by child victim to her mother and father about sexual contacts with the defendant were not testimonial); Somervell v. State, 883 So.2d 836 (Fla. 5th DCA 2004) (holding that statements mother overheard her autistic child make were not testimonial); Purvis v. State, 829 N.E.2d 572, 579 (Ind.Ct.App. 2005) (holding that a ten-year-old victim's statements made in response to his mother's boyfriend's questions posed immediately after the sexual abuse occurred were nontestimonial; noting that the statements were elicited to find out what had occurred and whether the child had been harmed), cert. denied, 547 U.S. 1026, 126 S.Ct. 1580, 164 L.Ed.2d 310 (2006); see also Crawford, 541 U.S. at 51, 124 S.Ct. 1354 ("An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not."); United States v. Manfre, 368 F.3d 832, 838 n. 1 (8th Cir. 2004) (noting comments made to "loved

  2. Corona v. State

    929 So. 2d 588 (Fla. Dist. Ct. App. 2006)   Cited 5 times
    Applying section 90.804(e) to decide whether a witness was "unavailable" for the purposes of the Confrontation Clause

    We agree with Corona that the statements involved in this case were testimonial, as they were elicited by Deputy Avilis at the Westgate Resort during questioning of A.C. which took place shortly after the incident. Bartee v. State, 922 So.2d 1065, 1070 (Fla. 5th DCA 2006) (statements made in response to questioning by police officer who is investigating a crime were testimonial under Crawford); Lopez v. State, 888 So.2d 693 (Fla. 1st DCA 2004) (same); see also Herrera-Vega v. State, 888 So.2d 66 (Fla. 5th DCA 2004), review denied, 902 So.2d 790 (Fla. 2005) ("`Testimonial' statements principally are those made with the expectation that they will be used for the purposes of a criminal prosecution."). However, the State met its burden of showing both that A.C. was "unavailable" for trial and that Corona had a prior opportunity to cross-examine the victim.

  3. Wright v. Secretary, Department of Corrections

    Case No. 8:10-cv-770-T-33TGW (M.D. Fla. Jul. 13, 2011)   Cited 1 times

    "Excited utterances heard and testified to by lay witnesses are not Crawford-style testimonial statements." See Herrera-Vega v. State, 888 So. 2d 66 (Fla. 5th DCA 2004). Thus, these statements were properly admitted at trial.

  4. In re N.D.C

    229 S.W.3d 602 (Mo. 2007)   Cited 22 times
    Holding that the constitutional right to confront adverse witnesses applies in juvenile delinquency proceedings; “the constitutional protections applicable in criminal proceedings are also applicable in juvenile delinquency proceedings due to the possibility of a deprivation of liberty equivalent to criminal incarceration”

    As such, Crawford does not afford sixth amendment protection, and the statement is admissible under section 491.075. Herrera-Vega v. State, 888 So.2d 66 (Fla.Ct.App. 2004); Purvis v. State, 829 N.E.2d 572 (Ind.App. 2005); State v. Van Leonard, 910 So.2d 977 (La.App. 2005); State v. Blackstock, 165 N.C.App. 50, 598 S.E.2d 412 (2004); State v. Shafer, 156 Wash.2d 381, 128 P.3d 87 (2006). V. Conclusion

  5. State v. Ladner

    373 S.C. 103 (S.C. 2007)   Cited 44 times
    Holding that a child's statement to her caretaker about the cause of the blood found in her diaper was not testimonial where "[the caretaker's] questions, as well as the victim's responses, were not designed to implicate the criminal assailant, but to ascertain the nature of the child's injury"

    Id. at 1146 n. 21. In Herrera-Vega v. State, 888 So.2d 66 (Fla.Dist.Ct.App. 2004), a three-year-old girl "spontaneously told her mother, as she was putting on the child's underpants, that twenty-year-old Vega had placed his tongue in her `private parts.' [The victim] reluctantly repeated the story to her father minutes later." Id. at 67.

  6. State v. Blue

    2006 N.D. 134 (N.D. 2006)   Cited 47 times
    Holding that the declarant's statements during an interview were testimonial because there was no “ongoing emergency” and the primary purpose was undoubtedly to prepare for trial

    For example, an out-of-court statement by a victim to a friend, family member, coworker, or non-government employee, without police involvement, have been held nontestimonial. See, e.g., People v. Griffin, 33 Cal.4th 536, 15 Cal.Rptr.3d 743, 93 P.3d 344, 372 n. 19 (2004) (victim's statement to a friend at school that defendant had been fondling her for some time and she intended to confront him was not testimonial hearsay within the meaning of Crawford); Herrera-Vega v. State, 888 So.2d 66, 69 (Fla.Dist.Ct.App. 2004) (child's statements to mother and father reporting a touching were not testimonial); Demons v. State, 277 Ga. 724, 595 S.E.2d 76, 79-80 (2004) (victim's statement to coworker that the defendant had threatened to kill the victim was admissible as a nontestimonial statement); People v. Geno, 261 Mich.App. 624, 683 N.W.2d 687, 692 (2004) (statement made by child was not testimonial because it was made to a non-government employee of Children's Assessment Center and was not a statement in the nature of "ex parte in-court testimony or its functional equivalent").

  7. State v. Bobadilla

    709 N.W.2d 243 (Minn. 2006)   Cited 49 times
    Holding child's statement to child-protection worker with government involvement was non-testimonial because interview was not done in order to produce a statement for trial

    at defendant had abused her was not testimonial); Demons v. State, 277 Ga. 724, 595 S.E.2d 76, 79-80 (2004) (determining that a victim's statement to a coworker that the defendant had threatened to kill her was not testimonial); State v. Barnes, 854 A.2d 208, 211 (Me. 2004) (determining that statements by mother seeking "safety and aid" from police were not testimonial); People v. Moscat, 3 Misc.3d 739, 777 N.Y.S.2d 875, 879-80 (N.Y.City Crim.Ct. 2004) (determining that a typical 911-call situation is not testimonial because the declarant is essentially crying out for help, "not contemplating being a 'witness' in future legal proceedings," and that the government is similarly not "in contemplation of pursuing criminal charges against a particular person"); People v. Garrison, 109 P.3d 1009, 1011 (Colo.Ct.App. 2004) (determining that a murder victim's statements to her manager that the defendant was harassing her were not testimonial), cert. denied, 2005 WL 878563 (Colo. Apr.18, 2005); Herrera-Vega v. State, 888 So.2d 66, 69 (Fla.Dist.Ct.App. 2004) (determining that a child's statements to parents reporting a "touching" were not testimonial), review denied, 902 So.2d 790 (Fla. 2005). See also Crawford, 541 U.S. at 51, 124 S.Ct. 1354, explaining that "a person who makes a casual remark to an acquaintance does not" bear testimony.

  8. State v. Maclin

    183 S.W.3d 335 (Tenn. 2006)   Cited 76 times
    Holding that "testimony involves a formal or official statement made or elicited with a purpose of being introduced at a criminal trial"

    In general, child witness statements made to government officials or representatives have been characterized as testimonial, while statements made to relatives or friends have been characterized as nontestimonial. See People v. Sisavath, 118 Cal.App.4th 1396, 13 Cal.Rptr.3d 753, 757-58 (2004); People v. Vigil, 104 P.3d 258, 262 (Colo.Ct.App. 2004), cert. granted, (Colo., Dec. 20, 2004); State v. Snowden, 385 Md. 64, 867 A.2d 314, 325-26 (Md. 2005); Flores v. State, 120 P.3d 1170, 1178-79 (Nev. 2005); but see People v. Geno, 261 Mich.App. 624, 683 N.W.2d 687, 692 (2004) (statement implicating the defendant, which was given by a two-year-old to a Children's Assessment Center interviewer after the interviewer noticed blood in the child's pants, was not testimonial); see also Herrera-Vega v. State, 888 So.2d 66, 69 (Fla.Dist.Ct.App. 2004) (spontaneous statements made by child to her mother while being dressed, and later repeated to her father, were not testimonial). Numerous courts have determined that statements made to friends, family, or acquaintances, as opposed to a government representative, do not constitute testimonial hearsay.

  9. State v. Mizenko

    330 Mont. 299 (Mont. 2006)   Cited 44 times   1 Legal Analyses
    Applying the third Crawford formulation and holding an excited utterance during a 911 call to be nontestimonial

    d had died); State v. Krasky (Minn.Ct.App. 2005), 696 N.W.2d 816, 819-20 (statements made by victim of sexual assault to a nurse practitioner describing the assault held nontestimonial under the "third and broadest formulation" provided in Crawford because "the examination was conducted, at least in part, for the purpose of medical diagnosis"); People v. Rincon (Cal.Ct.App. 2005), 28 Cal.Rptr.3d 844, 858 (statements by victim to former gang-member indicating that he had been shot in the ankle during a gun battle at a particular location held nontestimonial because the victim "could not reasonably have anticipated" prosecutorial use of his statements); State v. Wilkinson (Vt. 2005), 879 A.2d 445, ¶ 10 (statements by victim to defendant's cousin indicating that defendant had pulled a gun on him and that he thought the defendant was going to kill him held nontestimonial; statements were "made to an individual who had no relationship to the prosecution" and not in the presence of police); Herrera-Vega v. State (Fla.Dist.Ct.App. 2004), 888 So.2d 66 (statement by victim to her parents describing how defendant sexually abused her held nontestimonial); State v. Staten (S.C.Ct.App. 2005), 610 S.E.2d 823, 836 (statements by murder victim, made a day prior to his murder, to his cousin indicating that the defendant had pulled a gun on him held nontestimonial under any of Crawford's formulations); State v. Blackstock (N.C.Ct.App. 2004), 598 S.E.2d 412, 420 (statements by hospitalized murder victim made to his daughter and wife before he died, describing in detail the armed robbery that culminated with the victim's being shot, held nontestimonial because "it is unlikely that [the victim] made the statements under a reasonable belief that they would later be used prosecutorially"); State v. Walker (Wash.Ct.App. 2005), 118 P.3d 935, ¶¶ 34-35 (statements by victim of sexual assault describing the incident, identifying the perpetrator and given in response to questioning by her mother held nontestimonial; "the exchange between [mother] and [

  10. Hammon v. State

    829 N.E.2d 444 (Ind. 2005)   Cited 96 times
    Holding that "statements to investigating officers in response to general initial inquiries are nontestimonial but statements made for purposes of preserving the accounts of potential witnesses are testimonial"

    A spontaneous exclamation by a victim to a friend, family member, or co-worker is not likely to be regarded as testimonial. See, e.g., People v. Griffin, 33 Cal.4th 536, 15 Cal.Rptr.3d 743, 93 P.3d 344, 369 (2004) (victim's statement to a friend at school that defendant had been fondling her for some time and she intended to confront him was not testimonial hearsay within the meaning of Crawford); People v. Garrison, 109 P.3d 1009, 1011 (Colo.Ct.App. 2004) (murder victim's statements to her manager that the defendant was harassing her and threatening to kill her were admissible); People v. Vigil, 104 P.3d 258, 265 (Colo.Ct.App. 2004) (child sexual abuse victim's statements to his father admissible against the defendant); Herrera-Vega v. State, 888 So.2d 66, 69 (Fla.Dist.Ct.App. 2004) (child's statements to parents reporting a "touching" were not testimonial); Demons v. State, 277 Ga. 724, 595 S.E.2d 76, 79-80 (2004) (victim's statement to coworker that the defendant had threatened to kill the victim is admissible).