DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2014

GUY MORTIMER,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

No. 4D14-496

[July 9, 2014]

Petition for writ of habeas corpus to the Seventeenth Judicial Circuit, 

Broward County; Bernard I. Bober, Jr., Judge; L.T. Case No. 

2007CF12912CF10C.

Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant 

Public Defender, West Palm Beach, for petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, and Mark Hamel, 

Assistant Attorney General, West Palm Beach, for respondent.

PER CURIAM.

At Guy Mortimer’s trial, the state offered evidence under a common law 

hearsay exception; the legislature later codified this exception, but the 

Florida Supreme Court declined to adopt it. In our earlier opinion we 

affirmed Mortimer’s conviction based on the incorrect assumption that the 

new hearsay exception would become the law of Florida. We therefore 

grant the petition for writ of habeas corpus and remand to the circuit court

for a new trial. We stay issuance of the mandate to allow the state to seek 

review of the certified questions set forth below. 

We certify the following questions as being of great public importance:

(1) In light of Giles v. California, 554 U.S. 353 (2008) and

Crawford v. Washington, 541 U.S. 36 (2004), does section 

90.804(2)(f), Florida Statutes (2012), violate the Sixth 

Amendment Confrontation Clause?
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(2) Does article I, section 16 of the Florida Constitution afford 

an accused greater protection than the Sixth Amendment of the 

United States Constitution with regard to confronting adverse 

witnesses at trial?1

STEVENSON and LEVINE, JJ. concur.

GROSS, J., concurs specially with opinion.

GROSS, J., concurring specially.

I concur in the majority opinion and write to provide further 

background on the history of this case. A decision in the rules or jury 

instruction adoption process does not mean that the Supreme Court will 

not reconsider an issue in the context of an actual case. See, e.g., In re 

Amends. to Fla. Rule of Crim. Pro. 3.852, No. SC13-2295, 2014 WL 

1722473, at *1 n.1 (Fla. Apr. 24, 2014) (amending Florida Rule of Criminal 

Procedure 3.852, on the Court’s own motion, in response to the rule’s 

problematic application in a case); In re Amends. to Std. Jury Instrs. in 

Crim. Cases—Instr. 7.7, 41 So. 3d 853, 853 (Fla. 2010) (authorizing the 

publication and use of an interim standard jury instruction after finding 

the previously-adopted standard jury instruction constituted fundamental 

error); see also Ser-Nestler, Inc. v. Gen. Fin. Loan Co., 167 So. 2d 230, 232 

(Fla. 3d DCA 1964) (“The Supreme Court is vested with the sole authority 

to promulgate, rescind and modify [procedural] rules . . . . ”). It is possible

that in considering the hearsay exception here at issue, the Supreme Court 

did not have the benefit of full briefing of the constitutional issue involved.

Mortimer was convicted of felony murder and robbery with a firearm. 

At trial, Edder Joseph was a key state witness. At Mortimer’s behest, 

Joseph was terrorized by drive-by shootings at his home and was later 

shot in the face, knee, and ankle. Mortimer v. State, 100 So. 3d 99, 101-

02 (Fla. 4th DCA 2012). By the time of trial, the state was unable to locate 

Joseph and the trial judge found him to be unavailable. Id. at 102. During 

trial, the state offered Joseph’s earlier testimony at a codefendant’s bond 

hearing under the common law hearsay exception of forfeiture by 

wrongdoing. Id. at 102-03. After the trial, in 2012, the legislature codified 

this common law hearsay exception by enacting section 90.804(2)(f), 

Florida Statutes (2012). See Ch. 2012-152, Laws of Fla. 

Section 90.804(2)(f) provides:

1The Supreme Court did not mention article I, section 16 when it declined to 

adopt section 90.804(2)(f). However, as Mortimer argues, the Supreme Court is 

free to apply the Florida Constitution in a way that provides “broader or greater 

protection” than the United States Constitution. But see State v. Hosty, 944 So. 

2d 255, 259 n.4 (Fla. 2006). 
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(2) The following are not excluded under s. 90.802, 

provided that the declarant is unavailable as a witness:

...

(f) Statement offered against a party that 

wrongfully caused the declarant’s 

unavailability.—A statement offered against a 

party that wrongfully caused, or acquiesced in 

wrongfully causing, the declarant’s unavailability 

as a witness, and did so intending that result. 

Joseph’s earlier testimony falls squarely within the 90.804(2)(f) 

exception to the rule against hearsay—Joseph was unavailable and 

Mortimer “wrongfully caused, or acquiesced in wrongfully causing,” 

Joseph’s unavailability at trial. In our review of Mortimer’s convictions, 

we found that it was error to admit the testimony under a common law 

hearsay exception, since section 90.802 provides that hearsay evidence is 

inadmissible, “[e]xcept as provided by statute.” Mortimer, 100 So. 3d at 

102. Nonetheless, we affirmed the conviction because we found that at 

any new trial, Joseph’s testimony at the bond hearing would be admissible 

under section 90.804(2)(f).

In a classic example of judicial overconfidence, we wrote that “[i]t is 

almost certain that our Supreme Court will adopt section 90.804(2)(f).” Id. 

at 104. Relying largely upon Justice Scalia’s opinion in Giles v. California, 

554 U.S. 353 (2008), we reasoned as follows: 

Long part of the common law tradition, this hearsay exception 

involves a “form[ ] of testimonial statements” that “were 

admitted at common law even though they were 

unconfronted.” Giles, 554 U.S. at 358. The basis for the 

hearsay exception is deeply rooted in equity and justice; the 

exception is directed at “conduct designed to prevent a witness 

from testifying. The absence of a forfeiture rule covering this 

sort of conduct would create an intolerable incentive for 

defendants to bribe, intimidate, or even kill witnesses against 

them.” Id. at 365.

Mortimer, 100 So. 3d at 104.

In 2013, the Florida Supreme Court declined to adopt section 

90.804(2)(f) “to the extent it is procedural in light of constitutional 

concerns,” citing Crawford v. Washington, 541 U.S. 36 (2004). In re 

Amends. to the Fla. Evidence Code, No. SC13-98, 2013 WL 6500888, at *1

(Fla. Dec. 12, 2013).
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The constitutional concern raised by the Florida Supreme Court is 

whether section 90.804(2)(f) contravenes the Sixth Amendment 

Confrontation Clause. That concern is allayed by Giles v. California, where 

Justice Scalia explained that Crawford’s constitutional bar to 

unconfronted, out of court testimonial statements did not apply to the 

“forfeiture by wrongdoing” doctrine, which was codified by Federal Rule of 

Evidence 804(b)(6). Giles, 554 U.S. at 357-68; see also Davis v. 

Washington, 547 U.S. 813, 833 (2006) (describing Rule 804(b)(6) as a rule 

“which codifies the forfeiture doctrine”).

Giles recognizes that Crawford “acknowledged that two forms of 

testimonial statements were admitted at common law even though they 

were unconfronted.” 554 U.S. at 358. One of these “forms” was the 

common law doctrine of forfeiture by wrongdoing, which “permitted the 

introduction of statements of a witness who was ‘detained’ or ‘kept away’ 

by the ‘means or procurement’ of the defendant.” Id. at 359. The forfeiture 

rule applied when the “defendant engaged in conduct designed to prevent 

the witness from testifying.” Id. at 359, 365. Giles identifies the sound 

policy reason behind the forfeiture rule: “The absence of a forfeiture rule 

covering this sort of conduct would create an intolerable incentive for 

defendants to bribe, intimidate, or even kill witnesses against them.” Id.

at 365.

After demonstrating that admitting unconfronted testimony under the 

doctrine of forfeiture by wrongdoing does not violate the Sixth Amendment 

under Crawford, Giles observes that the Supreme Court approved Rule 

804(b)(6) in 1997.2 Id. at 367. The Court refers to eleven of the twelve 

states that have a similar forfeiture by wrongdoing hearsay exception as 

being within the holding in Giles and Crawford. Giles, 554 U.S. at 367 

n.2. No federal court that has considered rule 804(b)(6) has found a Sixth 

2The language of Federal Rule of Evidence 804(b)(6) is identical to section 

90.804(2)(f):

Statement Offered Against a Party That Wrongfully Caused the 

Declarant’s Unavailability. A statement offered against a party 

that wrongfully caused—or acquiesced in wrongfully causing—the 

declarant’s unavailability as a witness, and did so intending that 

result.

Fed. R. Evid. 804(b)(6).
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Amendment violation.3 No state court has found a Sixth Amendment 

violation when evaluating an evidentiary rule similar to 90.804(2)(f).4 

3See United States v. Dinkins, 691 F.3d 358, 382-83 (4th Cir. 2012), cert. denied,

133 S. Ct. 1278 (2013) (noting Rule 804(b)(6) adopted the well-established 

common law hearsay exception); United States v. Baskerville, 448 F. App'x 243, 

249 (3d Cir. 2011); Ponce v. Felker, 606 F.3d 596, 603-04 (9th Cir. 2010) (finding 

Giles stated a new rule requiring proof of intent, but the forfeiture doctrine has 

long been established and codified in Rule 804(b)(6)); Beckett v. Ford, 384 F. App’x 

435, 447 (6th Cir. 2010); United States v. Nelson, 242 F. App’x 164, 170-71 (5th 

Cir. 2007); United States v. Vallee, 304 F. App’x 916, 920-21 (2d Cir. 2008); United 

States v. Johnson, 495 F.3d 951, 970-72 (8th Cir. 2007) (finding Rule 804(b)(6) 

applied to trials prior to the rule’s enactment because the legal principle was “well 

and widely recognized” when the crime took place); Hodges v. Att’y Gen., State of 

Fla., 506 F.3d 1337, 1344 (11th Cir. 2007) (stating there was no more deserving 

circumstance to apply the forfeiture by wrongdoing doctrine than the murder of 

a witness); United States v. Martinez, 476 F.3d 961, 967 (D.C. Cir. 2007); United 

States v. Montague, 421 F.3d 1099, 1102 (10th Cir. 2005); United States v. 

Rodriguez-Marrero, 390 F.3d 1, 15-16 (1st Cir. 2004); United States v. Scott, 284 

F.3d 758, 762 (7th Cir. 2002) (finding it “well-established” that any Confrontation 

Clause rights are forfeited when a defendant wrongfully procures the 

unavailability of a witness).

4Forty-one states have adopted the forfeiture by wrongdoing exception to the 

hearsay rule. Twenty-six have adopted the exception either by statute or by rule 

of evidence. See Ala. R. Evid. 804(b)(5); Ariz. R. Evid. 804(b)(6); Cal. Evid. Code 

§ 1350; Conn. Code Evid. § 8-6(8); Del. R. Evid. 804(b)(6); Ga. Code Ann. § 24-8-

804(b)(5); Haw. R. Evid. 804(b)(7); Idaho R. Evid. 804(b)(5); Ill. R. Evid. 804(b)(5); 

Ind. R. Evid. 804(b)(5); Iowa R. Evid. 5.804(b)(6); Ky. R. Evid. 804(b)(5); La. Code 

Evid. Ann. Art. 804(B)(7); Mass. R. Evid. 804(b)(6); Md. Code Ann., Cts. & Jud. 

Proc. § 10-901 (West 2005); Mich. R. Evid. 804(b)(6); Miss. R. Evid. 804(b)(6); N.J. 

R. Evid. 804(b)(9); N.M. R. Evid. 11-804(B)(5); N.D. R. Evid. 804(b)(6); Ohio R. 

Evid. 804(B)(6); Pa. R. Evid. 804(b)(6); Tenn. R. Evid. 804(b)(6); Vt. R. Evid. 

804(b)(6); Wash. R. Evid. 804(b)(6); Wyo. R. Evid. 804(b)(7). Our research has 

located no state court case invalidating any of these rules or statutes.

Fifteen states and the District of Columbia have adopted the forfeiture by 

wrongdoing exception to the hearsay rule through case law. See, e.g., Ross v. 

State, No. 09-12-00283-CR, 2013 WL 4774100, at *1 (Tex. App.-Beaumont Sept. 

4, 2013, pet. ref’d); State v. Hawthorne, 833 N.W.2d 873, at *2 (Wis. Ct. App. 

2013), rev. denied, 838 N.W.2d 637 (Wis. 2013); State v. Weathers, 724 S.E.2d 

114, 116 (N.C. Ct. App. 2012), cert. denied, 743 S.E.2d 203 (N.C. 2013); Ward v. 

United States, 55 A.3d 840, 848 (D.C. 2012); Crawford v. Commonwealth, 704 

S.E.2d 107, 123 (Va. 2011); State v. Cox, 779 N.W.2d 844, 850-51 (Minn. 2010); 

State v. Poole, 232 P.3d 519, 522-23 (Utah 2010); Hunt v. State, 218 P.3d 516, 

518 (Okla. Crim. App. 2009); State v. Mechling, 633 S.E.2d 311, 325-26 (W. Va. 

2006); People v. Geraci, 649 N.E.2d 817, 820-21 (N.Y. 1995); State v. McLaughlin, 
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We have held that for the purpose of article V, section 2(a) of the Florida 

Constitution that section 90.804(2)(f) is a procedural statute. Mortimer, 

100 So. 3d at 103. The Florida Supreme Court declined to adopt the 

statute to “the extent that it is procedural,” In re Amendments, 2013 WL 

6500888, at *1, which means that the statute is unconstitutional because 

it contravenes article V, section 2(a). There is thus no operative statute 

that would authorize the admission of Joseph’s hearsay testimony, a 

requirement of section 90.802. 

Mortimer is entitled to habeas relief because a key assumption of our 

earlier opinion was in error. We assumed that at any retrial Joseph’s 

hearsay testimony would be admissible. Because the Supreme Court did 

not adopt section 90.804(2)(f), that is not the case. This is an unusual 

circumstance that allows an appellate court to correct an erroneous ruling 

in an earlier appeal to avoid a manifest injustice. See State v. Akins, 69 

So. 3d 261, 268 (Fla. 2011); Coleman v. State, 128 So. 3d. 193, 194 (Fla. 

5th DCA 2013); Haager v. State, 36 So. 3d 883, 884 (Fla. 2d DCA 2010).

* * *

265 S.W.3d 257, 272-73 (Mo. 2008); Vasquez v. People, 173 P.3d 1099, 1103

(Colo. 2007); State v. Tayman, 960 A.2d 1151, 1155-56 (Me. 2008); State v. 

Sanchez, 177 P.3d 444, 453-54 (Mont. 2008).