Moises Cordon v. State of Florida

• Court: District Court of Appeal of Florida
• Decided: April 15, 2026
• Docket: 3D2023-1858
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed April 15, 2026. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-1858 Lower Tribunal No. F20-3332 ________________

Moises Cordon, Appellant,

vs.

State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Miguel M. de la O, Judge.

Daniel J. Tibbitt, P.A., and Daniel Tibbitt, for appellant.

James Uthmeier, Attorney General, and Camilo Montoya, Assistant Attorney General, for appellee.

Before MILLER, LOBREE, and BOKOR, JJ.

MILLER, J. Appellant, Moises Cordon, appeals from his conviction and twenty-

year sentence for sexual activity with a child twelve years of age or older but

less than eighteen by a person in a familial or custodial authority. On appeal,

he contends that the trial court violated his right to a public trial, as

guaranteed by the Sixth Amendment to the United States Constitution and

Article 1, section 16 of the Florida Constitution, by excluding his biological

daughter from the courtroom while her half-sister, the victim, testified as to

the sexual abuse she suffered. On the narrow facts presented, we find no

constitutional violation and affirm.

I

Cordon was charged by information with sexually abusing his

stepdaughter, B.R., when she was between the age of twelve and eighteen.

The case proceeded to trial, and B.R. appeared as a witness. Upon entering

the courtroom, she saw her teenaged half-sister, K.C.—Cordon’s biological

daughter—sitting in the gallery. B.R. immediately fled from the courtroom,

visibly distraught and reduced to tears.

The State moved for a total closure of the courtroom, citing B.R.’s

emotional distress and the sensitive nature of her anticipated testimony. The

trial court convened a hearing outside the presence of the jurors and allowed

both sides to question B.R.

2 B.R. confirmed that K.C. was a minor and referred to her as her “little

sister.” She stated that she would have significant difficulty testifying and

maintaining emotional control if K.C. remained present in the courtroom. She

further stated that she did not want K.C. to hear the details of the sexual acts.

After examining sections 92.55 and 918.16, Florida Statutes (2023),

along with Florida’s constitutional and statutory protections for crime victims,

the trial court did not institute a total closure. See Art. I, § 16, Fla. Const.;

see also § 960.0021(2)(a), Fla. Stat. (2023). It instead found the interests of

justice warranted the temporary exclusion of K.C., but only for the duration

of B.R.’s testimony. As factual support, the judge cited B.R.’s emotional

reaction, her time at the age of the offenses, and the sensitive nature of the

testimony. Cordon’s two other immediate family members, both of whom

were adults, and other spectators, were allowed to remain in the courtroom.

But legal interns were excluded due to their immature age and the nature of

the testimony.

B.R. testified, the jury found Cordon guilty, as charged, and the trial

court adjudicated him guilty and sentenced him to twenty years’

imprisonment, followed by twenty years of sex offender probation. This

appeal ensued.

3 II

A

We review the trial court’s findings of fact for clear error, legal

determinations de novo, and the ultimate decision ordering a partial closure

for an abuse of discretion. See LiFleur v. Webster, 138 So. 3d 570, 574 (Fla.

3d DCA 2014); Woods v. State, 490 So. 2d 24, 27 (Fla. 1986). But because

the right to a public trial implicates constitutional principles, our scrutiny is

more rigorous than in other abuse-of-discretion appeals.

B

The Sixth Amendment to the United States Constitution and the Florida

Constitution guarantee the accused the right to a public trial. See Amend. VI,

U.S. Const. (“In all criminal prosecutions, the accused shall enjoy the right to

a speedy and public trial.”); Art. I, § 16(a), Fla. Const. (“In all criminal

prosecutions the accused shall . . . have the right to have compulsory

process for witnesses, to confront at trial adverse witnesses, to be heard in

person, by counsel or both, and to have a speedy and public trial by impartial

jury in the county where the crime was committed.”). Indeed, at least one

court has opined that “[t]here is no right more sacred to our institutions of

government than the right to a public trial by a fair and impartial jury.” Baker

v. Hudspeth, 129 F.2d 779, 781 (10th Cir. 1942).

4 “[Supreme Court] cases have uniformly recognized the public trial

guarantee as one created for the benefit of the defendant.” Gannett Co. v.

DePasquale, 443 U.S. 368, 380 (1979). “The knowledge that every criminal

trial is subject to contemporaneous review in the forum of public opinion is

an effective restraint on possible abuse of judicial power.” In re Oliver, 333

U.S. 257, 270 (1948); see also Jocelyn Simonson, The Criminal Court

Audience in a Post-Trial World, 127 Harv. L. Rev. 2173, 2174 (2014) (“The

Sixth Amendment provides for twin engines of public accountability for the

prosecution of crimes: the right to a jury trial and the right to public trial.”).

But the right to a public trial is not absolute. In some circumstances, it

is not triggered at all. See United States v. Yumang, 164 F.4th 601, 605 (7th

Cir. 2026) (“The brief courtroom closure [for five minutes] was too trivial to

be a Sixth Amendment error at all, let alone a reversible plain error.”);

Peterson v. Williams, 85 F.3d 39, 43 (2d Cir. 1996) (closure of twenty

minutes did not implicate Sixth Amendment); United States v. Perry, 479

F.3d 885, 890–891 (D.C. Cir. 2007) (applying Peterson's “triviality standard”

to exclude the defendant’s 8-year-old son during trial); United States v.

Ivester, 316 F.3d 955, 959–60 (9th Cir. 2003) (satisfying the “widely-

accepted Peterson test” after public excluded during mid-trial questioning of

jurors); Braun v. Powell, 227 F.3d 908, 918–19 (7th Cir. 2000) (exclusion of

5 a single excused juror during trial satisfied Peterson's “triviality standard”);

see also United States v. Greene, 431 F. App’x. 191, 195 (3d Cir. 2011)

(Peterson's “triviality analysis” remains valid after Presley). And in others,

the right may yield to “a compelling governmental interest . . . [where

courtroom closure] is narrowly tailored to serve that interest.” Clements v.

State, 742 So. 2d 338, 340 (Fla. 5th DCA 1999) (quoting Globe Newspaper

Co. v. Superior Court, 457 U.S. 596, 607 (1982)). Put another way, “[t]he

presumption of openness may be overcome only by an overriding interest

based on findings that closure is essential to preserve higher values and is

narrowly tailored to serve that interest.” Press-Enter. Co. v. Superior Court

of California, Riverside Cnty., 464 U.S. 501, 502 (1984).

In the seminal case of Waller v. Georgia, 467 U.S. 39 (1984), the

United States Supreme Court established four prerequisites for courtroom

closure:

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.

Pritchett v. State, 566 So. 2d 6, 7 (Fla. 2d DCA 1990) (citing Waller v.

Georgia, 467 U.S. 39, 47 (1984)).

6 In examining the first two Waller prongs, it has long been settled that

the physical and psychological well-being of a minor victim of sexual abuse

constitutes a compelling state interest. Globe, 457 U.S. at 607–08; see also

Pritchett, 566 So. 2d at 7 (“[T]he state has a very important interest in

protecting minor victims from further trauma . . . .”). Courts have resultingly

routinely upheld partial courtroom closures during a minor victim’s testimony

in sexual offense cases, provided family members and members of the press

are authorized to remain in the courtroom. This is particularly true in cases

involving familial abuse. See United States v. Galloway, 963 F.2d 1388,

1390 (10th Cir. 1992) (affirming partial closure of courtroom during testimony

of 18–year–old rape victim constitutionally permissible in view of victim's age

and nature of crimes where press along with the defendant's family permitted

to stay); Bell v. Jarvis, 7 F. Supp. 2d 699, 702 (E.D.N.C. 1998) (upholding

partial closure during testimony of twelve–year–old victim of sexual offenses

where press and family of the victim were permitted to stay), rev'd, 198 F.3d

432 (4th Cir. 1999), vacated on reh'g en banc, 236 F.3d 149 (4th Cir. 2000);

United States ex rel. Morgan v. Lane, 705 F. Supp. 410, 412–15 (N.D. Ill.

1989) (upholding partial closure during testimony of 16–year–old victim of

rape, sexual assault, and incest trial where media and family could remain in

the courtroom), aff'd, 897 F.2d 531 (7th Cir.1990); People v. Leggans, 625

7 N.E.2d 1133, 1138 (Ill. App. Ct. 1993) (partial closure upheld during

testimony of eight-year-old sex offense victim where media and those

directly involved in the case permitted to stay); State v. Fayerweather, 540

A.2d 353, 354 (R.I. 1988) (authorizing partial closure during testimony of six-

year-old molestation victim, where family and press remained).

But any such closure is not automatic. A case-by-case analysis as to

the remaining prongs of Waller must be undertaken. See Bell v. Jarvis, 236

F.3d 149, 168 (4th Cir. 2000) (citing Globe, 457 U.S. at 609)).

Under the third prong of Waller, the court is compelled to consider

reasonable alternatives if available, even when not offered by the parties.

See Presley v. Georgia, 558 U.S. 209, 214 (U.S. 2010). This prong has been

the subject of some debate, as it appears to run counter to other entrenched

appellate principles. See id. at 218 (Thomas, J., dissenting) (“Even

assuming the Court correctly extends Waller and Press-Enterprise I to this

(Sixth Amendment voir dire) context, neither opinion ‘explicit[ly] places on

trial courts the burden of sua sponte suggesting alternatives to closure

‘absent an opposing party’s proffer of some alternatives.’”); see also Tillman

v. State, 471 So. 2d 32, 35 (Fla. 1985) (“In order to be preserved for further

review by [an appellate] court, an issue must be presented to the lower court

and the specific legal argument or ground to be argued on appeal or review

8 must be part of that presentation . . . .”); Abrams v. Paul, 453 So. 2d 826,

827 (Fla 1st DCA 1984) (“[I]t is the function of the appellate court to review

errors allegedly committed by trial courts, not to entertain for the first time on

appeal issues which the complaining party could have, and should have, but

did not, present to the trial court.” (citing Palmer v. Thomas, 284 So. 2d 709

(Fla. 1st DCA 1973); 3 Fla. Jur. 2d Appellate Review § 92)); Garcia v. State,

401 S.W.3d 300, 303 (Tex. App. 2013) (“[T]he trial court had to consider all

reasonable alternatives to closure, sensibly reject each one, and issue

specific findings that justified the closure in light of controlling law.”).

Moreover, the lower court must render case-specific findings to enable

meaningful appellate review. Presley, 558 U.S. at 215.

C

Here, the trial court examined two statutory provisions before excluding

K.C. from the courtroom. The first, section 92.55, Florida Statutes, bears the

title “[s]pecial protections in proceedings involving victim or witness under

18, person with intellectual disability, or sexual offense victim.” The statute

grants trial courts broad discretion to protect sexual offense victims or minor

witnesses from “severe emotional or mental harm due to the presence of the

defendant if the victim or witness is required to testify in open court.”

Id. §92.55(2), Fla. Stat. Trial courts are authorized to enter orders “permitting

9 or prohibiting the attendance of any person at any proceeding,”

id. § 92.55(4), or to

set any other conditions . . . just and appropriate when taking the testimony of a victim or witness under the age of 18 . . . or a sexual offense victim or witness, including the use of a therapy animal or facility dog, in any proceeding involving a sexual offense or child abuse, abandonment or neglect.

Id. § 92.55(5).

The second, section 918.16(2), mandates a partial courtroom closure

upon a testifying sex-offense victim’s request, while permitting immediate

family members of the parties, court personnel, jurors, and media to remain.

Id. In the seminal case of Kovaleski v. State, 103 So. 3d 859 (Fla. 2012),

the Florida Supreme Court resolved an inter-district split and held that

section 918.16(2) satisfies the Waller requirements when properly applied.1

Id. at 861. As the court noted, the victim’s request establishes a compelling

interest, the enumerated statutory exceptions ensure the closure is narrowly

tailored, and the limited duration renders partial closure the most reasonable

alternative. Id. But the court cautioned trial courts to “ensure that the statute

is in fact applicable to the case before them and is properly applied.

1 Kovaleski analyzed the 2001 version of the statute, which contains the same operative language as the version of section 918.16(2) at issue here.

10 Reflecting such determinations in the record will allow for proper appellate

review.” Id.

D

Partial closures falling outside the ambit of section 918.16(2) are

slightly murkier. This court has observed in passing that there is a

persuasive line of authority supporting the proposition that a partial closure

may be subject to a more relaxed “substantial reason” standard. See Moore

v. State, 298 So. 3d 1208, 1211 n.2 (Fla. 3d DCA 2020) (noting the holdings

in United States v. Addison, 708 F.3d 1181, 1187 (10th Cir. 2013); Judd v.

Haley, 250 F.3d 1308, 1315 (11th Cir. 2001); U.S v. DeLuca, 137 F.3d 24,

34 (1st Cir. 1998); and Douglas v. Wainwright, 739 F.2d 531, 532 (11th Cir.

1984). And whether section 92.55, like 918.16(2), “acceptably embraces the

requirements set forth in Waller” in every case has yet to be tested.

Kovaleski, 103 So. 3d at 861; see Sandlin v. Crim. Just. Standards & Training

Comm'n, 531 So. 2d 1344, 1346 (Fla. 1988) (“The legislature will be

presumed to have intended a constitutional result.”); see also State v.

Catalano, 104 So. 3d 1069, 1075 (Fla. 2012) (“There is a strong presumption

that a statute is constitutionally valid, and all reasonable doubts about the

statute's validity must be resolved in favor of constitutionality.”).

11 But we need not resolve these nuanced issues today; because here,

the trial court properly balanced the competing interests and conducted an

individualized inquiry, thereby satisfying the heightened requirement

imposed by Waller and its progeny. Such closures are principally justified

because the state has an overriding interest in sparing the victim of the

“embarrassment and trauma associated with relating the details” of the

crimes in a public setting. Bell, 236 F.3d at 168.

The State’s request on behalf of B.R. advanced the compelling interest

of protecting her from further trauma while testifying about sexual abuse—

an established overriding interest under Kovaleski. The closure was

narrowly tailored, as it was only imposed during B.R.’s testimony, and other

spectators, including Cordon’s adult immediate family members and other

members of the public, were authorized to remain in the courtroom. There

was no press closure order.

By first tacitly considering a more sweeping closure and ultimately

fashioning a limited remedy, the trial court effectively evaluated reasonable

alternatives. Kovaleski, 103 So. 3d at 861. And the trial court expounded

on factual and legal findings, including B.R.’s emotional reaction, age, and

the sensitive nature of the testimony, as required under Waller.

12 We reject Cordon’s assertion that section 918.16(2) creates an

absolute right for K.C. to remain in the courtroom. The statute requires the

lower court to clear the courtroom of most spectators upon the victim’s

request. But the opposite does not hold true. 918.16(2) does not create a

bright-line rule requiring that the exempted individuals remain in the

courtroom, regardless of case-specific concerns. Id. Trial courts retain the

inherent authority to exclude spectators for legitimate reasons, including

sequestration concerns, preventing witness intimidation, or shielding minors

or other immature persons from graphic or explicit testimony. See § 90.616,

Fla. Stat. (2023); see also United States v. Farmer, 32 F.3d 369, 370–72 (8th

Cir. 1994) (no abuse of discretion in partial closure excluding persons based

on safety considerations); Martin v. Bissonette, 118 F.3d 871, 875 (1st Cir.

1997) (closure of courtroom to all spectators, including defendant's mother,

during key witness's testimony did not violate Sixth Amendment where

witness had been intimidated by defendant, his girlfriend, and his brothers);

Woods v. Kuhlmann, 977 F.2d 74, 76–77 (2d Cir. 1992) (exclusion of

defendant's family during eyewitness's testimony justified due to witness's

fear for her safety after being threatened by defendant's family); United

States v. Hernandez, 608 F.2d 741, 747–48 (9th Cir. 1979) (no Sixth

Amendment violation where public excluded from courtroom during

13 examination of witness who was in fear of his personal safety after being

threatened); see also State v. Register, 698 S.E.2d 464, 468 (N.C. Ct. App.

2010); United States v. Kobli, 172 F.2d 919, 924 (3d Cir. 1949) (“In the

present case it is apparent that the trial judge’s action was intended to protect

the morals of the large group of youthful spectators who were in the

courtroom. This was highly laudable and if his order of exclusion had been

limited to this group it would have been quite proper.”); cf United States v.

Gupta, 699 F.3d 682, 685 (2d Cir. 2012) (reversing because “the district

court's intentional, unjustified exclusion of the public for the entirety of voir

dire was neither brief nor trivial”). As the findings below otherwise satisfied

Waller, we hold that there was no violation of Cordon’s constitutional right to

a public trial. We therefore affirm the judgment and sentence.

Affirmed.