DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

GIL CAMACHO,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D14-448

[May 18, 2016]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Melinda Brown, Acting Circuit Judge; L.T. Case No. 11-

12367CF10A.

Eric T. Schwartzreich of Schwartzreich and Associates, P.A., Fort 

Lauderdale, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale 

Surber, Assistant Attorney General, West Palm Beach, for appellee.

LEVINE, J.

The issue presented for our review is whether the victim’s prior sworn 

testimony from an Arthur hearing is admissible when the victim’s death 

rendered her “unavailable” for trial. We find that appellant’s direct 

examination of the victim during the Arthur hearing was the functional 

equivalent of “significant cross-examination.” Therefore, the trial court did 

not err in admitting the Arthur hearing testimony. We also find the other

issues raised by appellant to be without merit, and thus we affirm 

appellant’s convictions.

The lower court held an Arthur hearing1 to determine appellant’s 

entitlement to pre-trial release. At the hearing, appellant called the victim 

to testify because the state had not done so. According to the victim, 

appellant had grabbed her without provocation, beat her, and trapped her 

in a room. Appellant then struck the victim with a “samurai sword.” 

Appellant allegedly tried to strike her in the head, but she lifted both of

1 See State v. Arthur, 390 So. 2d 717 (Fla. 1980).
2

her arms to protect herself. Eventually, appellant’s son took the victim to 

the hospital, where she was treated for severe damage to her arms. 

Appellant’s reason for attacking her with a sword, according to the victim, 

was that appellant had already “marked [her] face” and did not want to go 

to jail again.

Appellant attempted to impeach the victim several times during her 

testimony. Appellant inquired into the victim’s drug and alcohol use. The 

victim admitted that she had done crack cocaine the night before the 

incident, but had not used crack cocaine on the day of the incident. 

Appellant also elicited testimony that the victim had two prior felony 

convictions. Appellant asked about alleged domestic violence between 

appellant and the victim, and the victim admitted that when the police had 

been called it had been the victim, not appellant, who was arrested. 

The state then examined the victim and elicited more testimony about 

the victim’s account of the incident. When the state concluded its 

examination, the trial court told the defense attorney, “Just a few more 

questions, then I’ll permit [defense counsel] to cross-examine.” Defense 

counsel then examined the victim as to the testimony the state had just 

elicited. This second examination was replete with unobjected-to leading 

questions.2 Defense counsel also took this opportunity to confront the 

2 “[Defense Attorney]: Prior to being cut you said you were beaten and you had 

marks on your face, which is why he freaked out?

. . . 

[Victim]: He just marked my face, not marks. Just one, he made one mark.

[Defense Attorney]: Where was that mark?

[Victim]: Huh? I don’t even remember, because this is what he told me. There is 

pictures [sic].

. . .

[Defense Attorney]: You were hit in the face; correct?

[Victim]: Yes.

[Defense Attorney]: You would have marks somewhere on your face?

[Victim]: Wasn’t there any?

[Defense Attorney]: I don’t know. Let me show you a picture.

[The defense attorney then showed the victim a picture of her in the hospital.]

[Defense attorney]: Do you see any marks on your face in that picture?

[Victim]: Okay. That’s only one side; right?

[Defense Attorney]: I agree.

[Victim]: Must have been the other side.

[Defense Attorney]: Must have been. Okay. And this is when you were in the 

hospital so it was relatively right after the incident, correct, within a couple of 

days, give or take?

[Victim]: Okay.

[Defense Attorney]: You were in the hospital three or four days?
3

victim with a picture of her face, taken shortly after the incident. Although 

the victim claimed the appellant had “marked [her] face,” her face did not 

show any signs of injury in the picture.

After the Arthur hearing, and before the commencement of the trial, the 

victim died. The state then moved to admit the victim’s prior testimony 

from the Arthur hearing into evidence. The trial court permitted the 

admission of the victim’s prior testimony into evidence over appellant’s 

objection. Appellant was convicted of attempted second-degree murder 

and false imprisonment. Appellant appeals his convictions.

Whether appellant had a prior opportunity to cross-examine or confront 

the victim is a question of law which we review de novo. Petit v. State, 92 

So. 3d 906, 910 (Fla. 4th DCA 2012). 

The Sixth Amendment of the United States Constitution guarantees 

that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . 

to be confronted with the witnesses against him.” Amend. VI, U.S. Const. 

Further, in the seminal case of Crawford v. Washington, 541 U.S. 36 

(2004), the United States Supreme Court stated that “[w]here testimonial 

evidence is at issue . . . the Sixth Amendment demands what the common 

law required: unavailability and a prior opportunity for crossexamination.” Id. at 68. Thus, under the Confrontation Clause, admission 

of an unavailable declarant’s testimonial communications requires that 

the defendant have a prior opportunity to cross-examine the declarant.

In the present case, the victim gave testimony, or a “testimonial 

communication,” during the hearing, and the victim’s death rendered her 

“unavailable.” The remaining question is whether the direct examination 

of the victim by appellant’s counsel during the Arthur hearing satisfies the 

requirement that the accused have a prior opportunity to cross-examine 

or confront the witness against him.

“[T]he requirement for confrontation is satisfied where the opportunity 

is exercised, is more than ‘de minimis,’ and is ‘the equivalent of significant 

cross-examination.’” State v. Contreras, 979 So. 2d 896, 909 (Fla. 2008) 

(quoting Ohio v. Roberts, 448 U.S. 56 (1980)).3 In Roberts, the defendant 

[Victim]: Yes sir.” 3 As the Florida Supreme Court has noted, although the United States Supreme 

Court “receded from the Roberts reliability test in Crawford [v. Washington, 541 

U.S. 36 (2004)],” it cited “Roberts with approval for the proposition that prior trial 

or hearing testimony is admissible only if the defendant had an adequate 

opportunity to cross-examine. The Supreme Court noted that the testimony from 
4

called a witness during a preliminary hearing and attempted to elicit 

exculpatory testimony from her. The defendant did not ask for the witness 

to be declared hostile and did not ask permission to cross-examine her. 

Nevertheless, the Court stated that the questioning took the “form” of a 

cross-examination because it was “replete with leading questions.” 

Roberts, 448 U.S. at 70. Furthermore, the examination “comported with 

the principal purpose of cross-examination: to challenge ‘whether the 

declarant was sincerely telling what he believed to be the truth, whether 

the declarant accurately perceived and remembered the matter he related,

and whether the declarant’s intended meaning is adequately conveyed by 

the language he employed.’” Id. at 71 (citation omitted) (emphasis 

omitted). Thus, the Court concluded the questioning was “the equivalent 

of significant cross-examination” regardless of “however state law might 

formally characterize the questioning.” Id. at 70-71. 

In this case, the victim’s Arthur hearing testimony had all of the 

characteristics of a cross-examination despite formally being called a 

“direct examination.” The examination took the “form” of crossexamination. During the hearing, the defense attorney asked numerous 

unobjected-to leading questions, “the principal tool and hallmark of crossexamination.” See id. at 70. The examination also was a crossexamination in substance. Appellant was permitted to impeach the victim 

with her drug use and her prior felony convictions to undermine her 

credibility. Furthermore, after the state elicited testimony of her account 

of the incident, appellant was permitted to challenge her assertion that 

appellant had “marked [her] face” by offering photographic evidence 

showing that her face showed no signs of injury. 

Furthermore, the Arthur hearing itself was adversarial in nature. In an 

Arthur hearing, “the state must come forward with a showing that the proof 

of guilt is evident or the presumption is great.” Arthur, 390 So. 2d at 720.

Such a hearing is unlike, for example, a discovery deposition which “is at 

odds with the concept of meaningful cross-examination” “because the 

defendant is usually prohibited from being present, the motivation for the 

a preliminary hearing was properly admitted in Roberts because the defendant 

had examined the witness at that hearing.” Contreras, 979 So. 2d at 909 n.5 

(citation omitted). Thus, although the reliability standard described in Roberts is 

no longer the applicable Confrontation Clause test, Roberts continues to provide 

guidance as to what constitutes a sufficient prior opportunity to cross-examine a 

witness. See id. As Justice Scalia noted, “Even our recent cases, in their 

outcomes, hew closely to the traditional line. [Roberts] admitted testimony from 

a preliminary hearing at which the defendant had examined the witness.” 

Crawford, 541 U.S. at 58. 
5

deposition does not result in the ‘equivalent of significant crossexamination,’ and the resulting deposition cannot be admitted as 

substantive evidence at trial.” Contreras, 979 So. 2d at 910-11. See also 

Vilseis v. State, 117 So. 3d 867 (Fla. 4th DCA 2013). However, in this case, 

appellant was present, was motivated to undermine the strength of the 

state’s case, and was permitted great latitude when confronting the victim. 

Cf. Petit, 92 So. 3d at 913 (holding that testimony from a bond hearing was 

admissible because the defendant had a sufficient opportunity to crossexamine the witness); Thompson v. State, 995 So. 2d 532, 534 (Fla. 2d 

DCA 2008) (stating that testimony from a preliminary hearing was 

admissible because “the defendant was present and represented by 

counsel who cross-examined the witness”). 

Appellant argues the Arthur hearing did not afford him a full 

opportunity to cross-examine the victim and, had he known it would be 

his last opportunity to examine the victim, he would have done so more 

vigorously. But “Crawford does not require similarity of motive in the 

previous judicial proceeding or mention a ‘meaningful’ opportunity for 

cross-examination.” Petit, 92 So. 3d at 911. Rather, it requires only that 

testimony from an unavailable witness be tested in the “crucible of crossexamination.” See Crawford, 541 U.S. at 61. 

Although our state law “formally characterize[d]” appellant’s 

examination of the victim as a direct examination, see Roberts, 448 U.S. 

at 71, appellant’s examination satisfied the constitutional requirements of 

confrontation because it was “more than ‘de minimis,’ and [was] ‘the 

equivalent of significant cross-examination.’” See Contreras, 979 So. 2d 

at 909 (quoting Roberts, 448 U.S. at 70). We therefore conclude that, 

under these circumstances, it did not violate the Confrontation Clause to 

admit the victim’s Arthur hearing testimony as substantive evidence at 

trial. 

Affirmed.

STEVENSON and GERBER, JJ., concur. 

* * *

Not final until disposition of timely filed motion for rehearing.