In a Child-Rape Case, Fair Questions Are Weighed Against Inadmissible Evidence

To what extent, if any, is a rape victim’s sexual history relevant in her alleged assailant’s trial? And are the victim’s descriptions of the incident to two people in the immediate aftermath of the alleged attack admissible evidence at trial, or inadmissible hearsay?

Those two questions were the focus of a hearing this morning before Circuit Judge Matthew Foxman at the Flagler County Courthouse. The answers to the questions were central to the strategies of the prosecution and the defense in the trial of Waldemar Rivera, the 36-year-old former R-Section resident of Palm Coast accused of raping his 13-year-old step-daughter the evening of May 11, 2014.

Waldemar’s trial began Monday with jury selection. The jury was picked. But the trial was delayed by several motions that had to be decided this morning to define the delicate parameters of questions that may and may not be posed and evidence that may or may not be presented to the jury.

Waldemar, according to his arrest report, first offered the girl pot and a couple of beers that evening, along with dinner at Hooligan’s. While they were watching television later, alone in a house on Peppercorn Lane, he is accused of first attempting to assault her by pulling down her shorts (he retreated when she protested) then doing so again and briefly performing oral sex on her before she rejected him. She did not immediately leave the house but went outside to have a cigarette and calm down, then wait a few minutes until he “passed out” (he was drunk, she would later say) so she could take his cell phone and call for help: she was fearful of him and his temper, which she had seen explode against her mother. She called a friend, told her what happened and asked her to pick her up. Her friend declined, not wanting to get involved. So when the victim couldn’t get in touch with her aunt in Seminole Woods, she ran 1.6 miles, barefoot, to another friend’s house, where she again spoke of the incident to her friend’s mother, breaking down in tears.

It’s those two conversations that were in question today. Normally, what the two people the girl spoke to would have heard from her would be considered hearsay, and therefore inadmissible at trial. But there’s an exception to the rule. If the victim’s statements are made in the context of a “spontaneous or excited utterance”—that is, in the immediate aftermath of an incident, under stress—then the statements may be admissible.

The prosecution’s case rests in large part on those two witnesses testimony as to what the girl had told them, on the phone and in person, that evening. The prosecution argues in its motion that the statements “were made before there was time to contrive or to misrepresent” the events of that evening, and while the alleged victim “was under the stress of excitement caused by the startling event.”

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A hearing tests the boundaries between justified questions and blaming the victim.

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Regina Nunnally, the public defender representing Waldemar,  argued that the “spontaneous utterance” exception did not apply because the girl had had time to “reflect” and calm down before describing the incident: she had first smoked a cigarette outside the house, had even been joined by her stepfather after the alleged assault, if briefly (he kept apologizing to her), and while running from the house had not flagged down units of the sheriff’s office that appeared to be heading to the house where the assault had taken place (she had told her friend that she feared calling the police).

The girl the alleged victim first called, as well as her friend’s mother, both testified in court today—not as part of the trial, but to essentially testify to what they would say at trial next week, so the judge could rule on the defense’s motion to exclude their testimony.

“She was very, very upset, she was crying, she was barefooted, so you could tell that where she came from she had left in a hurry,” Stacie Simpson, the mother of the friend to whose house the alleged victim had run that evening, said on the stand. The younger girl the victim had phoned described much the same demeanor: scared, crying, upset.

The judge didn’t take long to rule: the exception to the hearsay rule would apply, the testimonies would be allowed. “I do not find that there was reasonable time for reflection if you were to believe the testimonies of the witnesses today,” Foxman said. “All the alleged victim did was essentially try and find help wherever she could find it. And the frantic manner in which she did, did not allow for what I consider to be time for meaningful reflection. So I’m going to find that this meets the hearsay exception.”

That was a victory for the prosecution. The next motion was not.

The defense will get to ask of the victim, now 15, whether she had been sexually active previously, and whether she’d had sex within 72 hours before the alleged incident. DNA evidence links Waldemar’s saliva to the girl’s underwear. So was evidence of another person’s secretions. Given that the likelihood of the presence of Waldemare’s DNA is in play—from a labial swab—it appeared unclear why it would be relevant to ask whether and when the alleged victim had been sexual active, at least from the prosecution’s perspective.

“His DNA is a match to the DNA on the labial swabs,” prosecutor Christy Opsahl argued, so there is no question of identification, which would have opened the door to further inquiries by the defense. “So under the statute, this type of evidence is out, it’s not admissible, unless the defense can proffer its relevance.”

But the defense intends to contest those very DNA results. Foxman was empohatic: “I’m not eliminating cross on DNA results, that’s not happening,” although those cross-examinations will involve the Florida Department of Law Enforcement’s DNA analysts, not the alleged victim herself. (In a deposition of FDLE analyst Nicole Lee, who’s analyzed some 2,000 cases in 18 years, Nunnally asked a series of questions probing the analytical process for any potential errors.)

“How are they supposed to properly contest the DNA results without basically the idea that she is sexually active comes into play?” the judge asked. “As a general statement of law, what you put in your motion is true, but if you have a mess, they have the right to contest those results and argue certain things. I agree, they don’t get to sit in here and beat up the victim about whether or not she’s—who’s she’s dating, what’s going on with her, all that kind of stuff. But they get to say there’s someone else in the DNA.”

Opsahl did not dispute that. She’s only trying to prevent cross-examination of the victim on her prior sexual conduct. But she agreed to questions limited to a 72-hour time frame.

Nunnally said her intention was to question the victim so as to establish her credibility—or lack thereof. But even as Nunnally argued her point of limiting questions to the credibility of the victim, she skated  close to questioning the girl’s character. “In the deposition, her demeanor, she doesn’t come off as somebody who is naïve,” Nunnally said of the alleged victim. “She does have knowledge from experiences.” The public defender said she didn’t want to convey the impression that the alleged victim had no knowledge of oral sex. “We’re not trying to bring up anything that makes her look bad, but it is part of the facts, it is part of this case,” Nunnally said. It was an arresting proposition that left a door open for the prosecution to ask what relevance there was to the girl’s knowledge in that regard, when the accusation relates to an unsolicited sexual attack on a child. The prosecution did not walk through the door.

The hearing dispensed with a third motion as well, relating to references to the alleged victim’s boyfriend, which will not be part of the trial as they have no relevance.

Throughout, Waldemar sat to the right of Nunnally in his orange jail jumpsuit, shackled hands and feet, as he will not be during trial, when he’ll be allowed to wear civilian clothes so that the jury is not prejudiced by his jail garb. Walde,ar has been held without bail at the jail since June 2015. Foxman asked him if he wanted to say or ask anything at the end of the proceedings. Waldemar declined. Foxman summed up the essence of the hearing for him before adjourning.

The trial resumes next Tuesday.