M.D., A JUVENILE v. THE STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: June 29, 2022
• Docket: 21-1147
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed June 29, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-1147 Lower Tribunal No. 19-0891 ________________

M.D., a juvenile, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Dawn Denaro, Judge.

Carlos J. Martinez, Public Defender, and Susan S. Lerner and John Eddy Morrison, Assistant Public Defenders, for appellant.

Ashley Moody, Attorney General, and Asad Ali and David Llanes, Assistant Attorneys General, for appellee.

Before FERNANDEZ, C.J., and LINDSEY, and LOBREE, JJ.

LINDSEY, J. Appellant M.D., a juvenile, appeals from a final order withholding

adjudication of delinquency for resisting an officer without violence. 1

Because at this point in the COVID-19 pandemic, due process requires a

case-specific finding of necessity before a trial court may conduct a remote

adjudicatory hearing over objection, we reverse and remand for a new

adjudicatory hearing.

I. BACKGROUND

While surveilling a Jeep Wrangler that matched the description of a

recently carjacked vehicle, officers from the tactical robbery unit saw M.D.

and another person enter the vehicle and drive away. M.D. drove the vehicle

a short distance and parked on the side of the road. Detective Arteaga

testified that he then verified the tag matched that of the stolen vehicle and

initiated a felony stop.

Several officers pulled up to the Jeep in their unmarked vehicles with

their police lights on. According to Detective Arteaga, “once we attempted

the felony stop and I got out of my vehicle it was like right away the driver

jumped out and started running.” Detective Arteaga further testified that as

he was chasing after M.D., he said “stop running[,] police.” Officers caught

1 This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.140(b)(1)(B).

2 M.D. and, after a brief struggle, placed him in handcuffs. M.D. was ultimately

charged with grand theft of a motor vehicle, burglary of an unoccupied

conveyance, and two counts of resisting without violence. 2

M.D.’s adjudicatory hearing was scheduled to be held remotely over

Zoom 3 on March 8, 2021. M.D. filed a written objection, arguing that a

remote trial would violate his right to be present and his right to confront

witnesses.

At the beginning of the hearing, the trial court ruled as follows:

There’s been cases that have discussed this issue that have come down throughout the State. Zoom is the norm at this time in the juvenile system.

We have administrative orders and we have orders from the Supreme Court as to how trials are to be conducted in a safe way and so the Court has to engage in a balance, safety and the Court believes that his constitutional rights will not be violated in this trial.

He’ll have a right to confront, the witnesses are going to be right in front of his face. At any moment in time when you want to caucus with him you raise your hand or let me know and I’m more than happy to put you in a breakout room at any time to speak

2 Though the Jeep was taken during an armed carjacking, M.D. was not charged with this crime because the victim indicated that M.D. was not the person who carjacked him. 3 “Zoom is a cloud-based communications application for virtual video conferencing.” E.A.C. v. State, 324 So. 3d 499, 508 n.9 (Fla. 4th DCA 2021) (Levine, C.J., specially concurring).

3 with your client, that goes to your client as well if he wants that meaningful dialogue and communication with you he can.

But this is how we have been ordered to do things because of the situation of which we find ourselves in and we have to be safe and the courts have ruled that this is a very safe, effective and efficient way to handle the trial. He’ll be able to see everybody that’s going to be in front of him.

He’ll be able to speak to his lawyers, at any moment in time when you want to talk to him further and in private you let me know and I’m happy to put you in a room to talk further with him alright.

So we will proceed with this Zoom hearing and we will begin with the state attorney and you can begin if you’d like with an opening statement.

Everyone at the adjudicatory hearing appeared remotely, including the

State’s two witnesses: the owner of the vehicle and Detective Arteaga.

During the hearing, there were times when M.D. did not seem to understand

he was participating in a remote trial. For example, he interrupted his

attorney in the middle of cross-examination because he wanted to say

something to the Court:

[COUNSEL FOR M.D.]: Judge if I can interrupt for a second, our client is raising his hand. I don’t know if he wants to [talk] to us.

[JUDGE]: Sure. I’ll ask him. M.D. is there a question that you have for the Court or would you like to go into a room with your lawyer? Are you objecting to something?

4 M.D.: Nah I want to say something.

[COUNSEL FOR M.D.]: Okay what?

[JUDGE]: This wouldn’t be the time to say. Hold on for a moment. Would you like your client . . . to say something or not.

[COUNSEL FOR M.D.]: No not at this time.

M.D.: Nah I want to say something myself.

[COUNSEL FOR M.D.]: Okay M.D. we’ll talk in a breakout room and we’ll see if that’s possible and if it is we’ll make it happen okay but right now I’m going to finish this cross-examination okay?

M.D.: Okay.

M.D. again interrupted the proceedings during the State’s closing argument:

[JUDGE]: M.D. please put your hands down, it’s distracting I’m trying to focus on-just sit still please. Try to sit still, thank you. Thank you very much. Go on.

After the State rested, the court granted M.D.’s motion for judgment of

dismissal as to grand theft and burglary, finding that the State failed to

sufficiently prove that the vehicle M.D. was driving was the same vehicle that

was stolen. At the conclusion of the adjudicatory hearing, the court found

M.D. guilty of resisting Detective Arteaga without violence and not guilty of

the second count of resisting. M.D. timely appealed.

II. ANALYSIS

5 M.D.’s primary argument on appeal is that forcing him to participate in

a remote proceeding over objection and without case-specific findings of

necessity violated his right to confrontation and right to be present. We write

solely to address this issue. Because we conclude that at this point in the

pandemic, due process requires a case-specific finding of necessity before

a trial court may conduct a remote adjudicatory hearing over objection, we

reverse and remand for a new adjudicatory hearing.

We recognize that juvenile proceedings differ from criminal

proceedings. However, certain due process rights, including the right to

confrontation, apply in juvenile proceedings. See McKeiver v. Pennsylvania,

403 U.S. 528, 543 (1971) (“[T]he applicable due process standard in juvenile

proceedings . . . is fundamental fairness [with] an emphasis on factfinding

procedures. The requirements of notice, counsel, confrontation, cross-

examination, and standard of proof naturally flow[] from this emphasis.”);

T.H. v. State, 47 Fla. L. Weekly D681, D682 (Fla. 2d DCA Mar. 18, 2022)

(“[P]rocedural safeguards found in criminal proceedings, including the right

to confront witnesses, are afforded to a child in a juvenile proceeding through

the Due Process Clause of the Fourteenth Amendment.”). 4

4 As further explained in McKeiver, constitutional rights applicable in criminal proceedings such as the rights to appropriate notice, to counsel, to confrontation and to cross-examination, and the privilege against self-

6 This Court reviews whether a juvenile’s due process rights have been

violated under the de novo standard. See T.H., 47 Fla. L. Weekly at D681.

The parties agree that the right to confrontation, which includes the

right to be physically present, is not absolute. See Maryland v. Craig, 497

U.S. 836, 836-37 (1990); Harrell v. State, 709 So. 2d 1364, 1368 (Fla. 1998).

M.D. argues that the trial court was required to make case-specific findings

before ordering that the adjudicatory hearing be conducted remotely. See

Craig, 497 U.S. at 855 (holding that to justify the absence of face-to-face

confrontation of a witness, the trial court must make a case-specific finding

of necessity). The State argues that no case-specific findings were

necessary because the trial court complied with a Florida Supreme Court

administrative order that contained general findings of necessity for remote

proceedings based on the existing public health emergency. 5

incrimination “have equal application to that part of the state juvenile proceeding that is adjudicative in nature.” 403 U.S. at 533 (emphasis added). 5 The State relies on Order No. AOSC20-23, (Amendment 9) (Fla. Feb. 17, 2021), which states that “[n]on-jury trials in . . . juvenile delinquency cases shall be conducted remotely if ordered by the chief judge or the presiding judge or, if not, shall be conducted in person.” Importantly, the Order states in its Guiding Principles that “[t]he presiding judge in all cases must consider the constitutional rights of crime victims and criminal defendants and the public’s constitutional right of access to the courts.” While the Administrative Order authorizes remote adjudicatory hearings, it does not do so to the exclusion of any objections that may be raised and considered.

7 This is a developing area of the law. We therefore consider recent

Florida cases that have addressed the right to confrontation in conjunction

with the public policy concerns surrounding the COVID-19 pandemic. See

Craig, 497 U.S. at 837 (“[T]he right to confront accusatory witnesses may be

satisfied absent a physical, face-to-face confrontation at trial only where

denial of such confrontation is necessary to further an important public policy

and only where the testimony’s reliability is otherwise assured.”).

This Court has already considered whether an adult remote violation

of probation proceeding violated a defendant’s due process and

confrontation rights. See Clarington v. State, 314 So. 3d 495, 497 (Fla. 3d

DCA 2020), review denied, SC20-1797, 2021 WL 1561346 (Fla. Apr. 21,

2021). After explaining the flexible nature of due process rights and the

differences between a probation violation hearing and a criminal prosecution,

this Court concluded that “the proceeding proposed by the trial court in this

case appropriately considered these necessities and competing interests,

balancing the defendant’s constitutional rights and the responsibility of the

judicial system to hear, adjudicate and dispose of criminal matters and

conduct criminal proceedings, through the application of temporary

procedures needed to ensure the health and safety of those participating.”

Id. at 509.

8 Clarington was a narrow decision “limited to the nature of the

proceeding at issue (a violation of probation proceeding), and the question

whether such proceeding, if conducted remotely by audio-video technology,

violates petitioner’s due process and confrontation rights, weighed and

analyzed in light of the Coronavirus pandemic and the Florida Supreme

Court’s current administrative orders regulating the conduct of criminal

proceedings in the midst of that public health emergency.” Id.

In E.A.C. v. State, 324 So. 3d 499 (Fla. 4th DCA 2021), the Fourth

District considered whether a juvenile’s confrontation rights were violated

when witnesses appeared via Zoom. Unlike here, the juvenile in E.A.C. was

present in the courtroom with the attorneys and judge. Our sister district

agreed that the juvenile had a due process right to counsel, to confront and

cross-examine witnesses, and to be physically present at his trial. Id. at 504.

However, the court, relying on the analysis in Clarington, disagreed that the

appearance of witnesses via Zoom violated the juvenile’s due process

confrontation rights “under the pandemic circumstances that existed in

August 2020.” Id. at 507.

Judge Levine specially concurred to explain the “limited circumstances

where the specific necessity of waiving ‘face-to-face’ confrontation of

witnesses by the defendant is satisfied by the procedure used in this case

9 during this trial held on August 14, 2020.” Id. (Levine, C.J., specially

concurring). The special concurrence acknowledges that the preferred

procedure is for the trial court to make case-specific findings before allowing

for the questioning of witnesses via Zoom as required by Craig. Id. Further,

the special concurrence concludes that a case-specific finding was not

required in August 2020 because there was a clear necessity, and all

witnesses were in the same situation. 6 Id.

More recently, in a juvenile case procedurally similar to the one now

before us, the Second District considered whether an adjudicatory hearing

conducted in October 2020, where all parties appeared via Zoom, violated

the juvenile’s due process confrontation rights. See T.H., 47 Fla. L. Weekly

D681. As in the instant case, the juvenile in T.H. filed a written objection

arguing that a remote hearing would violate his constitutional rights. The trial

court overruled the objection and determined that the COVID-19 pandemic

and various administrative orders permitted it to deny the juvenile’s right to

confront witnesses in person. Id. The Second District held that “the trial

court erred in ruling that the adjudicatory hearing would proceed via Zoom

6 Judge Ciklin dissented on the basis that the juvenile’s fundamental constitutional right to confrontation was violated because the trial court failed to make the case-specific findings required by Craig. Id. at 509 (Ciklin, J., dissenting).

10 without allowing [the juvenile] a hearing on his objection and without making

a case-specific finding of necessity to limit confrontation rights.” Id. at D683. 7

Accordingly, the court reversed and remanded for a new adjudicatory

hearing. 8

It is apparent from the cases outlined above (and the various special

concurrences and dissents), that there is some disagreement as to when

remote proceedings conducted during the COVID-19 pandemic violate a

juvenile’s due process rights to confrontation. Early in the pandemic, courts

were more likely to weigh the public policy concerns surrounding public

health and the pandemic in favor of allowing remote proceedings. Moreover,

as recognized by Judge Levine’s special concurrence in E.A.C., in the early

stages of the pandemic, “[i]t seems futile to require a ‘case-specific finding’

in one courtroom that would mirror the situation throughout the state, and

7 See also A.S. v. State, 47 Fla. L. Weekly D946 (Fla. 2d DCA Apr. 27, 2022) (reversing and remanding for a new adjudicatory hearing); M.M. v. State, 47 Fla. L. Weekly D798 (Fla. 2d DCA Apr. 6, 2022) (same).

8 Judge Atkinson dissented: “because juvenile delinquency adjudicatory hearings are not subject to the constitutionally enumerated confrontation right applicable only in criminal proceedings, the trial court here was permitted to make a categorical finding that necessity demanded that juveniles only be permitted to confront witnesses against them remotely through two-way audiovisual technology.” T.H., 47 Fla. L. Weekly at D683 (Atkinson, J., dissenting).

11 potentially the country.” 324 So. 3d at 508 (Levine, C.J., specially

concurring). However, the longer the pandemic lasts, the more demanding

courts have become. 9

Consequently, we follow the more recent cases from the Second

District, which require case-specific findings before the trial court may

conduct a remote adjudicatory hearing over objection. Because we are now

in the later stages of the pandemic, we reverse and remand for a new

adjudicatory hearing. On remand, the adjudicatory hearing may be held via

Zoom if the trial court holds a hearing on M.D.’s objection and makes a case-

specific finding of necessity before limiting his confrontation rights. 10

9 Cf. E.A.C., 324 So. 3d at 508 (Levine, C.J., specially concurring):

There should be a clear correlation between the existence and severity of the exigency and the latitude given to the trial court. The longer the exigency lasts, however, the more demanding we should be in allowing that accommodation to continue. The reason for this is clear. As Justice Felix Frankfurter noted many years ago, “The history of liberty has largely been the history of observance of procedural safeguards.” McNabb v. United States, 318 U.S. 332, 347, 63 S.Ct. 608, 87 L.Ed. 819 (1943). As the exigency recedes, so should any allowance of any emergency accommodation. 10 Holding a hearing on objections to remote appearances is otherwise addressed in in the Florida Rules of Juvenile Procedure and is applicable even in the absence of a public health emergency such as a pandemic. See

12 III. CONCLUSION

Because we conclude that at this point in the pandemic, due process

requires a case-specific finding of necessity before a trial court may conduct

a remote adjudicatory hearing over objection, we reverse and remand for a

new adjudicatory hearing.

Reversed and remanded.

Fla. R. Juv. P. 8.104 (requiring a hearing and specific findings of fact on the record before permitting testimony by closed-circuit television).