Lena v. State

901 So. 2d 227, 2005 WL 840438
CourtDistrict Court of Appeal of Florida
DecidedApril 13, 2005
Docket3D03-108
StatusPublished
Cited by2 cases

This text of 901 So. 2d 227 (Lena v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lena v. State, 901 So. 2d 227, 2005 WL 840438 (Fla. Ct. App. 2005).

Opinion

901 So.2d 227 (2005)

Manuel LENA, Appellant,
v.
The STATE of Florida, Appellee.

No. 3D03-108.

District Court of Appeal of Florida, Third District.

April 13, 2005.

*229 Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.

Charles J. Crist, Jr., Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.

Before COPE, FLETCHER and RAMIREZ, JJ.

On Motion for Rehearing

COPE, J.

On consideration of the appellant's motion for rehearing, we withdraw our previous opinion and substitute the following opinion:

Manuel Lena appeals his convictions for sexual battery on a minor and lewd and lascivious molestation of a child under twelve. We affirm.

I.

A.

Defendant-appellant Lena argues that the trial court erred by partially closing the courtroom during the testimony of the minor victim, who was eleven at the time of trial.

Section 918.16, Florida Statutes provides for a partial closure of the courtroom "when any person under the age of 16 or any person with mental retardation ... is testifying concerning any sex offense...." Id. § 918.16(1). The statute also provides for partial closure "upon the request of the victim, regardless of the victim's age or mental capacity...." Id. § 918.16(2).

Where there is a partial closure, the statute allows certain persons to remain in the courtroom. These are the "parties to the cause and their immediate families or guardians, attorneys and their secretaries, officers of the court, jurors, newspaper reporters or broadcasters, court reporters, and, at the request of the victim, victim or witness advocates designated by the state attorney's office." Id. § 918.16(1); see also id. § 918.16(2). Everyone else must leave the courtroom during the testimony of the protected person (the victim, or the minor or mentally retarded witness).[1]

The statute does not require the court to set up a television link for remote viewing of the testimony. In the usual case the excluded persons must wait outside the courtroom during the testimony of the protected person and have no practical alternative means for observing or hearing the testimony.

B.

The State moved for partial closure of the courtroom under section 918.16, arguing that partial closure would reduce the trauma and intimidation to the minor victim. The State requested that the trial judge view the videotaped deposition of the victim, and the court did so.

The defense opposed the State's request, arguing that before section 918.16 could be applied, the court must determine that the constitutional standards for courtroom closure had been satisfied. See Alonso v. State, 821 So.2d 423, 426 (Fla. 3d DCA *230 2002) (citing Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), and Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982)).

The trial court granted the State's motion. However, the court on its own initiative ordered that a television monitor be set up outside the courtroom. Those who were required to leave the courtroom during the minor victim's testimony were able to see and hear it contemporaneously by the television link. The defendant contends that this arrangement violated his right to have a public trial.

C.

The threshold question is what legal test applies for a partial courtroom closure where (as here) the persons excluded from the courtroom may see and hear the proceedings contemporaneously by television link.

The defense argues that the four-part Waller test is applicable to the present case. That is the test which the trial court utilized. The State argues that a lower standard, the "substantial reason" test, is applicable. See Douglas v. Wainwright, 739 F.2d at 533. We agree with the State's position.

The four-part Waller test was developed in the context of a case in which there had been a total closure of the courtroom during a lengthy suppression hearing in a criminal case. Waller, 467 U.S. at 42, 104 S.Ct. 2210. In that case, spectators and the press were excluded from the courtroom and had no means to see or hear the proceedings. There was no television link.

Similarly, in an ordinary partial closure under the Florida Statute, the excluded persons must leave the courtroom during the victim's testimony and have no alternative means to see or hear it. Section 918.16 does not require a television link for remote viewing.

In that situation—where the excluded persons have no alternative means to see or hear the testimony contemporaneously—this court has taken the position that the four-part Waller test must be satisfied. This test has been summarized as follows:

"Both the Sixth Amendment to the United States Constitution and article I, section 16 of the Florida Constitution provide the accused with the right to a public trial. While we recognize that the right of access in a criminal trial is not absolute, the circumstances allowing closure are limited. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982). In order to justify any type of closure, whether the closure is total or partial, the court must find "that a denial of such right is necessitated by a compelling governmental interest and is narrowly tailored to serve that interest." 457 U.S. at 607, 102 S.Ct. at 2620.
The appropriate analysis to follow to determine whether a particular case warrants closure is set forth in Waller [v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984)]. There are four prerequisites that must be satisfied before the presumption of openness may be overcome. First, the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced; second, the closure must be no broader than necessary to protect that interest; third, the trial court must consider reasonable alternatives to closing the proceedings; and fourth, the court must make findings adequate to support the closure. Waller, 467 U.S. at 47, 104 S.Ct. at 2215."

Alonso v. State, 821 So.2d at 426 (quoting Pritchett v. State, 566 So.2d 6, 7 (Fla. 2d *231 DCA 1990) (other citations omitted)).[2]

The present case stands on a completely different footing. In the present case the excluded persons were able to see and hear the victim's testimony contemporaneously by a television link. As one court has aptly put it, "the courtroom was not closed but rather extended beyond the confines of the physical room. Neither appellant's right to an open and public trial, nor his right to confrontation, was compromised by the steps the trial court took." State v. Rohde, 1993 WL 385363 (Ohio Ct.App.1993).

It is unsound to apply the stringent Waller test in the circumstances now before us. The Waller test sets a very high standard for courtroom closure because the Waller test applies to cases in which the persons excluded from the courtroom have no alternative means to view the testimony.

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Bluebook (online)
901 So. 2d 227, 2005 WL 840438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lena-v-state-fladistctapp-2005.