final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
Petition for Writ of Certiorari-Original Jurisdiction.
Moody, Attorney General, and Virginia Harris, Assistant
Attorney General, Tallahassee, for Petitioner.
Thomas, Public Defender, and Megan Long, Assistant Public
Defender, Tallahassee, for Respondent.
State seeks a writ of certiorari to quash an order
prohibiting the use of hearsay statements by the child victim
in the prosecution of Dwayne Boatman for capital sexual
battery and lewd or lascivious molestation. In determining
that the child's statements were too unreliable to be
admitted into evidence, the trial court made findings and
reached legal conclusions based on facts not presented at the
evidentiary hearing and unsupported by the record. This was a
departure from the essential requirements of law and caused
nine-year-old stepdaughter, K.S., reported to officials at
her elementary school that Boatman "had sex" with
her. She also stated that Boatman "raped" her the
very morning she made the report. K.S. was referred to a
child protection team, who then performed a recorded forensic
interview. During the interview, K.S. repeated that Boatman
"raped" her. When asked what she meant by that
term, K.S. said that it meant that he "had sex with
her" and explained that Boatman had penetrated her anus
with his penis.
sexual assault examination was conducted the same day. A
nurse practitioner swabbed K.S.'s anal area to test for
DNA. The test results revealed that the DNA retrieved from
the anal swabs matched Boatman's DNA. Based on the
evidence obtained from the forensic interview and the sexual
assault examination, the State charged Boatman with sexual
battery and lewd and lascivious molestation.
the State could go to trial, K.S. recanted. In a four-minute
deposition taken by Boatman's attorney two years after
the alleged rape and K.S.'s reports to school officials,
K.S. denied that Boatman raped her. When asked by defense
counsel if she knew what the term "rape" meant,
K.S. responded, "I know what it means now, but I
didn't know what it means then." She refused to
explain her current understanding of the word. When asked if
Boatman had ever put his private part to her private part,
K.S. responded, "No. Not that I'm referring of,
no." K.S. stated that she loved Boatman more than her
real father and that Boatman would not be in prison were it
not for her earlier statements. The State asked K.S. on
cross-examination whether she would do anything to protect
her family. K.S. responded affirmatively, "I don't
care how I do it, shoot to kill." No further questions
were asked, and the deposition concluded.
the deposition, the State moved under section 90.803(23),
Florida Statutes (2018), to introduce the child hearsay
statements K.S. made in her recorded CPT interview and the
hearsay statements she made to the two school officials, the
nurse who performed the sexual assault examination, and the
CPT member who conducted the interview. The court conducted
an evidentiary hearing and after considering testimony and
information obtained during discovery, determined that
K.S.'s statements were unreliable. Included in the order
were findings regarding DNA evidence:
The evidence provided by the State in the course of discovery
indicates that the DNA from the swabs taken from K.S.'s
anal and vaginal areas matched the Defendant's DNA. One
reasonable hypothesis of innocence to explain the presence of
such DNA may be that the Defendant and his wife had sexual
intercourse; the wife (K.S.'s mother); the wife used the
"community" dirty, green rag to "wipe up"
after this marital activity; and K.S. used this same dirty,
green rag to "wipe up" to retaliate against her
stepfather for not giving her the attention she sought.
court also found that K.S.'s conduct may "fall under
the description of a child with feminine Oedipal complex
(Electra complex)." The court excluded the hearsay
statements based on its ...