A man convicted of sexually abusing his stepdaughter should receive a new trial because of the improper use of secret recordings made by the alleged victim, the Florida Supreme Court ruled Thursday.
The unanimous ruling found that the recordings should not have been admitted as evidence in the trial of Richard R. McDade, who was sentenced to life in prison after being found guilty by a Lee County jury on five charges, including two counts of sexual battery on a child younger than 12.
Justices, who overturned a decision by the 2nd District Court of Appeal, cited a state law that generally bars recording of conversations unless all parties have agreed to the recording. McDade’s stepdaughter used a hidden MP3 player to record conversations that the appeals court said “were probably the most importance evidence presented” during the trial.
While there are exceptions in the law barring secret recordings, the Supreme Court ruling said none “of the exceptions allow for the interception of conversations based on one’s status as the victim of a crime.” Also, it said state law “provides that the contents of any improperly intercepted communication may not be used as evidence.”
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“It may well be that a compelling case can be made for an exception … for recordings that provide evidence of criminal activity --- or at least certain types of criminal activities,’’ said the 18-page opinion, written by Justice Charles Canady. “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.”
The alleged victim was born in Mexico and moved with her mother to Florida in 2001. The mother married McDade in 2005. The stepdaughter alleged that McDade began sexually abusing her when she was 10 years old and threatened that she and her mother would have to go back to Mexico if the attacks were reported, according to the appeals-court and Supreme Court rulings.
In April 2011, when the stepdaughter was 16, she used an MP3 player hidden in her shirt to record two conversations in a bedroom with McDade. The court rulings said the recordings supported the stepdaughter’s allegations that McDade regularly asked her to have sex with him after school. The teen and her boyfriend made copies of the recordings and turned them over to police.
McDade sought to suppress the recordings during his trial, but a circuit judge rejected the request. The 2nd District Court of Appeal last year upheld the circuit judge’s decision, though it noted the case did not have any DNA evidence or other physical evidence to support the alleged victim’s claims.
In addressing the secret recordings, the appeals court concluded that “any expectation of privacy McDade may have had is not one which society is prepared to accept as reasonable. Indeed, society has a special interest in protecting children from sexual abuse, and exceptional treatment of sex crimes in other areas of the law reflects these societal values.”
But the Supreme Court on Thursday disagreed with that reasoning and ordered that McDade’s convictions and sentences be reversed and that he receive a new trial.
McDade, now 68, has been imprisoned at Century Correctional Institution, according to state records. The court rulings indicate he operated an ice-cream truck before being charged with the crimes.