Supreme Court of Florida
_____________
No. SC13-1248
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RICHARD R. McDADE,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
[December 11, 2014]
CANADY, J.
In this case, we consider a certified question of great public importance
concerning the application of the prohibition under chapter 934, Florida Statutes
(2010), on intercepting certain oral communications. Specifically, we consider
whether the prohibition applies to recordings of solicitation and confirmation of
child sexual abuse when the recordings were surreptitiously made by the child in
the bedroom of the accused.
In McDade v. State, 114 So. 3d 465, 467 (Fla. 2d DCA 2013), the Second
District Court of Appeal rejected McDade’s argument that two recordings of
conversations he had in his bedroom with his stepdaughter should have been
suppressed under chapter 934’s statutory exclusionary rule. The court also rejected
McDade’s argument that testimony of the stepdaughter’s boyfriend recounting
statements of the stepdaughter that McDade had raped her should have been
excluded as hearsay. Regarding the recorded conversations, the Second District
held “that the narrow factual circumstances of this case do not fall within the
statutory proscription of chapter 934.” Id. at 469. The Second District concluded
that the boyfriend’s testimony was non-hearsay because the statements made by
the stepdaughter “were introduced to show why the boyfriend encouraged the
victim to make the recordings,” not for the truth of the matter asserted. Id. at 468-
69.
The Second District certified the following question as one of great public
importance:
DOES A RECORDING OF SOLICITATION AND
CONFIRMATION OF CHILD SEXUAL ABUSE MADE BY THE
MINOR CHILD VICTIM FALL WITHIN THE PROSCRIPTION OF
CHAPTER 934, FLORIDA STATUTES (2010)?
Id. at 471. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. In line with the
analysis we adopt, we rephrase the certified question as follows:
DOES A RECORDING OF SOLICITATION AND
CONFIRMATION OF CHILD SEXUAL ABUSE
SURREPTITIOUSLY MADE BY THE CHILD VICTIM IN THE
ACCUSED’S BEDROOM FALL WITHIN THE PROSCRIPTION
OF CHAPTER 934, FLORIDA STATUTES (2010)?
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For the reasons we explain, we answer the rephrased certified question in the
affirmative. We also conclude that the Second District erred regarding the
boyfriend’s testimony concerning statements made by the stepdaughter. We quash
the Second District’s decision.
I. BACKGROUND
McDade was arrested and charged with various sex crimes after his then
sixteen-year-old stepdaughter reported that he had been sexually abusing her since
she was ten years old. Prior to McDade’s arrest, his stepdaughter recorded two
conversations with McDade. The stepdaughter provided these recordings to law
enforcement, and McDade was arrested that same day. Prior to trial, McDade
moved to suppress the recordings under chapter 934, Florida Statutes. The trial
court denied McDade’s motion, and the case proceeded to a jury trial. The
recordings were introduced at trial over McDade’s objection.
At trial, the State presented the testimony of McDade’s stepdaughter, her
boyfriend, and multiple law enforcement officers. The State did not introduce any
forensic evidence. In defense, McDade testified on his own behalf, and he
presented the testimony of his wife and his treating physician. The Second District
summarized the facts as follows:
The victim in this case was born in Mexico in 1994. In 2001,
she and her mother moved to Florida. Though their immigration
status was a matter of dispute during the trial, the victim testified that
she believed that they were illegally in the country. In 2005, the
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mother married McDade, who was approximately sixty years of age at
the time. The mother testified that the couple never had a sexual
relationship because they both had health issues. Indeed, McDade and
the mother both testified that he suffered from erectile dysfunction.
However, the victim alleged that he sexually abused her over a period
of years, threatening that she and her mother would be returned to
Mexico if she reported what he was doing.
McDade operated an ice cream truck, and the victim’s mother
worked as a janitor. During the period of time when the alleged abuse
occurred, the victim was typically home alone with McDade for
several hours in the afternoon each school day. She testified that on
one such afternoon McDade instructed her to come into his bedroom
and told her to take off her clothes. He covered her face with a
blanket and he penetrated her with both his finger and his penis. She
was ten years old at the time. McDade allegedly continued to engage
in this conduct weekly until April 2011, when she was sixteen.
Over the years, the victim claimed that she reported this abuse
to several people, including her mother, a doctor, and two ministers at
her church. Her mother admitted that her daughter reported this abuse
to her and that she took her daughter to a doctor. The mother
adamantly did not believe her daughter. When pressed about her
accusations, the victim recanted on more than one occasion. Perhaps
because of her retractions, no one reported her claims even though any
person who has reasonable cause to suspect child abuse must report it.
See § 39.201, Fla. Stat. (2012). She explained that she retracted her
claims due to the fear of being sent to Mexico.
In October 2010, the victim started going out with a boy. Her
mother and McDade did not like the boyfriend, and this created
conflict within the family. In an effort to prevent her from sneaking
out of the house, her mother and McDade made her sleep in a closet
near their bedroom. She told her boyfriend that McDade was raping
her, and he encouraged her to gather proof of the abuse. He loaned
her his MP3 player to use as a recording device. In April 2011, with
the MP3 player hidden in her shirt, she approached McDade in his
bedroom on two occasions when they were alone after school. She
was essentially conducting her own investigation, hoping to prompt
McDade into making incriminating statements that she could secretly
record as evidence of abuse.
The recordings supported the victim’s testimony that McDade
would regularly ask her to have sex with him after school. On both
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occasions, though he did not use sexually explicit language, he
appeared to be asking her to have sex with him. He pressured her by
suggesting that if she did not have sex with him he would get
physically sick. McDade also indicated he was doing her a favor by
not telling her mother that they were having sex because if the mother
knew she would take the victim back to Mexico.
Id. at 467-68.
The jury convicted McDade on two counts of sexual battery on a child
younger than twelve, two counts of sexual activity with a child by a person in a
position of familial or custodial authority, and one count of solicitation of sexual
activity with a child by a person in a position of familial or custodial authority.
McDade was sentenced to two sentences of life imprisonment for the counts of
sexual battery on a child younger than twelve, two sentences of fifteen years of
imprisonment for the counts of sexual activity with a child by a person in a
position of familial or custodial authority, and five years of imprisonment for the
count of solicitation of sexual activity with a minor by a person in familial or
custodial authority, with the sentences to run concurrently.
McDade appealed to the Second District, arguing that the trial court erred
when it admitted the recordings into evidence and when it permitted the boyfriend
to testify about the stepdaughter telling him that McDade raped her. The district
court first addressed McDade’s hearsay argument. The district court concluded
that “[b]ecause the statements in question were introduced to show why the
boyfriend encouraged the victim to make the recordings,” the boyfriend’s
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statements did “not constitute hearsay and thus the court did not abuse its
discretion in admitting them.” Id. at 468-69.
The Second District then rejected McDade’s argument that the trial court
should have suppressed the recordings under the exclusionary rule of section
934.06, Florida Statutes (2010). The district court relied on State v. Inciarrano,
473 So. 2d 1272 (Fla. 1985)—a case involving an audio recording of a murder
taking place—to conclude “that the narrow factual circumstances of this case do
not fall within the statutory proscription of chapter 934.” McDade, 114 So. 3d at
469, 470. The Second District explained that “the statutory proscription [on
recording oral communications] of chapter 934 only applies where the person
uttering the communication has a reasonable expectation of privacy in that
communication under the circumstances.” Id. at 470. The district court then
reasoned that:
As in Inciarrano, this case involves recordings made by a victim
of the very criminal acts by which she was victimized. The minor
victim recorded McDade soliciting her for sexual acts, as he had done
for years. And though the conversation took place in McDade’s
home, it was also the victim’s home. Considering these circumstances
and consistent with the analysis and holding in Inciarrano, we
conclude that any expectation of privacy McDade may have had is not
one which society is prepared to accept as reasonable.
Id. (Emphasis added.)
However, two of the judges on the Second District panel expressed concerns
with this Court’s decision in Inciarrano and its application to this case. See id. at
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471-77 (Altenbernd, J., concurring specially; Villanti, J., concurring in part and
dissenting in part). Judge Villanti concurred in the panel’s decision regarding
McDade’s hearsay argument but dissented as to resolution of McDade’s argument
regarding the recordings. Id. at 475 (Villanti, J., concurring in part and dissenting
in part). According to Judge Villanti, section 934.06 is unambiguous and the
recordings clearly fall within the statute’s plain language. Id. Further, Judge
Villanti reasoned that the majority erroneously relied on Inciarrano to reach its
result because the cases are factually distinguishable. Id. at 475-76. In Inciarrano,
“the court considered ‘the quasi-public nature of the premises within which the
conversations occurred, the physical proximity and accessibility of the premises to
bystanders, and the location and visibility to the unaided eye of the microphone
used to record the conversations.’ ” Id. at 476 (quoting Inciarrano, 473 So. 2d at
1274). Conversely, the recording in this case was made while the defendant “was
inside his own bedroom in his own residence.” Id.
Judge Altenbernd agreed with the panel’s resolution of both issues on
appeal, but with reservations:
Under the “society is prepared to recognize” test, I conclude
that in 2011 a person who regularly and consistently abused a
teenager in a bedroom of their shared home had no reasonable
expectation that their conversations about the abuse would never be
recorded. In this modern digital world, any such adult should have
expected that eventually a teenage victim would record such
conversations in self-defense. Accordingly, I concur in this decision
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because Mr. McDade could not reasonably expect his statements to be
protected oral communications.
Despite my concurrence, I frankly share some of Judge
Villanti’s concerns about the direction that Inciarrano takes us in
today’s decision.
Id. at 471-72 (Altenbernd, J., concurring specially).
II. ANALYSIS
In the analysis that follows, we examine the governing statutory provisions
in chapter 934, Florida Statutes, discuss the decision in Inciarrano, and answer the
rephrased certified question in the affirmative. We then discuss and accept
McDade’s argument that the trial court erroneously admitted the boyfriend’s
testimony concerning the stepdaughter’s statements.
A. Chapter 934 and the Recordings
Whether the provisions of chapter 934, Florida Statutes, apply to the
recordings at issue in this case—where the facts relevant to the recordings are
undisputed—is a question of statutory interpretation. “Judicial interpretations of
statutes are pure questions of law subject to de novo review.” Johnson v. State, 78
So. 3d 1305, 1310 (Fla. 2012) (citing State v. Sigler, 967 So. 2d 835, 841 (Fla.
2007)). “In construing this statute, this Court must give the ‘statutory language its
plain and ordinary meaning,’ and is not ‘at liberty to add words . . . that were not
placed there by the Legislature.’ ” Exposito v. State, 891 So. 2d 525, 528 (Fla.
2004) (quoting Seagrave v. State, 802 So. 2d 281, 286 (Fla. 2001); Hayes v. State,
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750 So. 2d 1, 4 (Fla. 1999)). “Where the statute’s language is clear and
unambiguous, courts need not employ principles of statutory construction to
determine and effectuate legislative intent.” Johnson, 78 So. 3d at 1310 (quoting
Fla. Dep’t of Children & Family Servs. v. P.E., 14 So. 3d 228, 234 (Fla. 2009)).
Section 934.03(1), Florida Statutes (2010), contains a general prohibition on
the interception of any wire, oral, or electronic communications. Section
934.02(2), Florida Statutes (2010), defines the term “oral communication” for
purposes of chapter 934 as “any oral communication uttered by a person exhibiting
an expectation that such communication is not subject to interception under
circumstances justifying such expectation and does not mean any public oral
communication uttered at a public meeting or any electronic communication.”
Section 934.03(2), Florida Statutes (2010), contains a list of specific
exceptions to the general prohibition in section 934.03(1). One of these exceptions
is for situations in which all parties to the conversation have consented.
§ 934.03(2)(d), Fla. Stat. (2010). None of the exceptions allow for the interception
of conversations based on one’s status as the victim of a crime. The State does not
argue that any of the exceptions listed in section 934.03(2) are applicable in this
case.
Section 934.06 provides that the contents of any improperly intercepted
communication may not be used as evidence:
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Whenever any wire or oral communication has been intercepted, no
part of the contents of such communication and no evidence derived
therefrom may be received in evidence in any trial, hearing, or other
proceeding in or before any court, grand jury, department, officer,
agency, regulatory body, legislative committee, or other authority of
the state, or a political subdivision thereof, if the disclosure of that
information would be in violation of this chapter. The prohibition of
use as evidence provided in this section does not apply in cases of
prosecution for criminal interception in violation of the provisions of
this chapter.
This Court analyzed these statutory provisions in State v. Walls, 356 So. 2d
294 (Fla. 1978). In Walls, “the alleged victim of extortionary threats,
electronically recorded a conversation” between himself and the defendants. Id. at
295. The Court concluded that the recording was inadmissible under section
934.06, Florida Statutes (1975). The Court explained:
We agree with the trial court that an extortionary threat
delivered personally to the victim in the victim’s home is an “oral
communication” within the definition of Section 934.02(2), Florida
Statutes (1975); that pursuant to Section 934.03, Florida Statutes
(1975), the electronic recording of such “oral communication”
without the consent of all parties to the communication was
prohibited; and that Section 934.06, Florida Statutes (1975), expressly
prohibits the use of such electronic recording as evidence. The
subject electronic recording did not fall within any of the situations
permitting interception delineated in Section 934.03(2), Florida
Statutes (1975). Section 934.06, Florida Statutes (1975), contains no
exception to the prohibition against use of the illegally intercepted
wire or oral communication as evidence.
Id. at 296.
Similarly, under the definition of oral communication provided by section
934.02(2), Florida Statutes (2010), McDade’s conversations with his stepdaughter
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in his bedroom are oral communications. The facts related to the recorded
conversations support the conclusion that McDade’s statements were “uttered by a
person exhibiting an expectation that [his] communication [was] not subject to
interception” and that McDade made those statements “under circumstances
justifying” his expectation that his statements would not be recorded. § 934.02(2),
Fla. Stat. (2010). The recordings were made surreptitiously. McDade did not
consent to the conversations being recorded, and none of the other exceptions
listed in section 934.03(2) apply. The recordings, therefore, were prohibited.
Because the recordings impermissibly intercepted oral communications, the
recordings are inadmissible under section 934.06, Florida Statutes (2010).
The facts of Inciarrano are in important ways different from those in both
Walls and the instant case. In Inciarrano, the trial court had determined that the
“statements were not made under circumstances justifying an expectation to
privacy,” based on factual circumstances including “the quasi-public nature of the
premises within which the conversations occurred, the physical proximity and
accessibility of the premises to bystanders, and the location and visibility to the
unaided eye of the microphone used to record the conversations.” 473 So. 2d at
1274. Thus, the recording was made in the victim’s place of business—a “quasi-
public” place—and the recording device was visible. In addition, the recording
contained sounds of the crime that were not “oral communications.” Arguably, the
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recording was admitted at trial not for the “contents” of any “oral
communications.” The recording simply revealed the presence of the defendant—
from the sound of his voice—and the sounds that accompanied the commission of
the crime—that is, “five shots being fired . . . several groans by the victim, the
gushing of blood, and the victim falling from his chair.” Id. Conversely, the
recordings at issue in this case were made in McDade’s bedroom, the recording
device was hidden under the stepdaughter’s shirt, and the recordings contain
conversations between McDade and his stepdaughter. Because of the differences
in the location, visibility of the recording device, and content of the recordings at
issue in Inciarrano, it presented a set of circumstances that are starkly different
from those present here.
The reasoning of Inciarrano turns, however, on the Court’s conclusion that
any subjective expectation of privacy that Inciarrano had was unjustified because it
was not an expectation “that society is prepared to recognize as reasonable.” Id. at
1275. In reaching this conclusion, the Court focused on the fact that Inciarrano
went to the victim’s office “to do him harm” and on Inciarrano’s resulting status as
a “trespasser.” Id. The holding of Inciarrano thus is a narrow holding based on the
view that a trespasser cannot have a justified expectation that his utterances in the
premises where he trespasses are not subject to interception. Cf. United States v.
Curlin, 638 F.3d 562, 565 (7th Cir. 2011) (concluding that defendant who had
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previously been evicted from residence had “no legitimate expectation of privacy
in the residence”); United States v. McRae, 156 F.3d 708, 711 (6th Cir. 1998)
(concluding that defendant who squatted in a vacant house “did not have a
legitimate expectation of privacy by virtue of having stayed a week in the vacant
premises that he did not own or rent”); United States v. Gale, 136 F.3d 192, 195-96
(D.C. Cir. 1998) (concluding trespassing defendant “lacked the ‘legitimate
expectation of privacy’ in the premises required to challenge the search”); United
States v. Carr, 939 F.2d 1442, 1446 (10th Cir. 1991) (concluding that defendant
who occupied motel room that was not registered to defendant or someone he was
sharing it with lacked a “legitimate expectation of privacy” under the Fourth
Amendment in the motel room).
Inciarrano therefore is not based on a general rule that utterances associated
with criminal activity are by virtue of that association necessarily uttered in
circumstances that make unjustified any expectation that the utterances will not be
intercepted. Nor can the holding in Inciarrano be used as a basis for the decision
reached by the Second District, which turns on McDade’s status as a person
engaged in crimes involving the sexual abuse of a child. We thus do not
understand the references in Inciarrano to “whether society is prepared to
recognize [an expectation of privacy] as reasonable” to provide a basis for either
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such a general rule or the view adopted by the Second District. Inciarrano, 473 So.
2d at 1275.
The whether-society-is-prepared-to-recognize formulation has its genesis in
the Fourth Amendment context. It first appears in Justice Harlan’s concurrence in
Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring), in his
discussion of the objective expectation of privacy element of Fourth Amendment
analysis. This formulation cannot be understood to justify a categorical rule that
persons involved in criminal activities have no justified expectation of privacy in
conversations related to those activities. Such a categorical rule makes no sense
either in the Fourth Amendment context or under the definition of “oral
communication” in section 934.02(2). The result in Katz itself—the suppression of
recordings made by the government of telephone conversations relating to illegal
gambling—illustrates this point regarding the meaning of the whether-society-is-
prepared-to-recognize formulation.
“Privacy expectations do not hinge on the nature of [a] defendant’s
activities—innocent or criminal. In fact, many Fourth Amendment issues arise
precisely because the defendants were engaged in illegal activity on the premises
for which they claim privacy interests.” United States v. Fields, 113 F.3d 313, 321
(2d Cir. 1997) (internal citation omitted); see also United States v. Pitts, 322 F.3d
449, 458-59 (7th Cir. 2003) (“We may not justify the search after the fact, once we
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know illegal activity was afoot; the legitimate expectation of privacy does not
depend on the nature of the defendant’s activities, whether innocent or criminal. . .
. If this were the case, then the police could enter private homes without warrants,
and if they find drugs, justify the search by citing the rule that society is not
prepared to accept as reasonable an expectation of privacy in crack cocaine kept in
private homes.”).
It may well be that a compelling case can be made for an exception from
chapter 934’s statutory exclusionary rule for recordings that provide evidence of
criminal activity—or at least certain types of criminal activities. But the adoption
of such an exception is a matter for the Legislature. It is not within the province of
the courts to create such an exception by ignoring the plain import of the statutory
text.
B. Hearsay
McDade’s argument that the trial judge erroneously permitted the boyfriend
to testify about inadmissible hearsay statements is reviewed under an abuse of
discretion standard. “A trial judge’s ruling on the admissibility of evidence will
not be disturbed absent an abuse of discretion. The trial court’s discretion is
constrained, however, by the application of the rules of evidence and by the
principles of stare decisis.” Hayward v. State, 24 So. 3d 17, 29 (Fla. 2009)
(internal citations omitted).
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In Penalver v. State, 926 So. 2d 1118, 1131-32 (Fla. 2006), the Court
explained that:
Hearsay is defined in section 90.801(1)(c), Florida Statutes (2005), as
“a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” (Emphasis added.) See also Hernandez v. State, 863 So.
2d 484 (Fla. 4th DCA 2004). Thus, if the statement is offered for the
truth of the facts contained in the statement, then the statement is
hearsay and must fall within one of the recognized hearsay exceptions
outlined in section 90.803 to be admitted into evidence. See
Hutchinson v. State, 882 So. 2d 943, 950-51 (Fla. 2004). However, if
the statement is offered for some purpose other than its truth, the
statement is not hearsay and is generally admissible if relevant to a
material issue in the case. See Harris v. State, 843 So. 2d 856 (Fla.
2003); State v. Baird, 572 So. 2d 904 (Fla. 1990).
Here, the boyfriend’s testimony that the stepdaughter “told me that she was being
raped when she was younger” was hearsay.
The Second District concluded that the boyfriend’s testimony was offered
not to establish the truth of the matter asserted by the stepdaughter but to show
why the boyfriend assisted the stepdaughter in making the recordings. See
Krampert v. State, 13 So. 3d 170, 174 (Fla. 2d DCA 2009) (concluding that out of
court statements were not hearsay when they were introduced to explain
subsequent conduct rather than to prove the truth of the matter asserted). Given
our determination that the recordings were not admissible, this justification for the
admission of the stepdaughter’s statement collapses. The boyfriend’s explanation
of why he assisted the stepdaughter in making the inadmissible recordings is
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totally irrelevant. The State asserted no other basis in its brief to this Court for
admitting the testimony. Therefore, the trial court abused its discretion in denying
McDade’s hearsay objection.
III. CONCLUSION
We thus conclude that the recordings should have been suppressed under
section 934.06, and the boyfriend’s testimony should have been excluded. We
answer the rephrased certified question in the affirmative, quash the decision of the
Second District, and remand this case to the Second District to reverse McDade’s
convictions and sentences. McDade is entitled to a new trial.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, and PERRY,
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
Great Public Importance
Second District - Case No. 2D11-5955
(Lee County)
Christopher E. Cosden, Fort Myers, Florida,
for Petitioner
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Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Robert Jay Krauss,
Bureau Chief, and Christina Zuccaro, Assistant Attorney General, Tampa, Florida,
for Respondent
Thomas Richard Julin and Patricia Acosta of Hunton & Williams LLP, Miami,
Florida, on behalf of the Florida Press Association and the Florida Society of News
Editors,
for Amici Curiae
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