DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2012
TIMOTHY LEWIS MCLAUGHLIN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D10-2255
[February 15, 2012]
DAMOORGIAN, J.
Timothy McLaughlin appeals his judgment and sentence o n two
counts of lewd or lascivious molestation on a child under age twelve.
One count applied to victim D.M. and the other to victim H.M.
McLaughlin raises two issues o n appeal: (1) the trial court erred in
allowing a screen to b e placed between the witness stand and
McLaughlin while each victim testified in open court; and (2) the
prosecutor’s improper comments during closing argument amounted to
fundamental error. Finding merit to McLaughlin’s first issue on appeal,
we reverse and remand for a new trial, concluding that the use of the
screen in the courtroom was not authorized by the applicable statute and
unduly compromised the presumption of innocence fundamental to the
right to a fair trial.1 We find no error in connection with the prosecutor’s
statements during closing argument, a n d do so without further
comment.
1
“In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury . . . .” U.S. Const. amend. VI; see
Pozo v. State, 963 So. 2d 831, (Fla. 4th DCA 2007) (“The due process clause of
the Fourteenth Amendment guarantees the right of state criminal defendants to
be tried by an impartial jury. The Fourteenth Amendment incorporates the
essence of the Sixth Amendment right. . . .”) (quoting Irvin v. Dowd, 366 U.S.
717, 722 (1961)).
The following facts are necessary to the disposition of the issue on
appeal. After the trial started, the State made a motion pursuant to
section 92.54, Florida Statutes (2010)2, to place a screen between the
witness stand and McLaughlin in the courtroom to block the victims’
view of McLaughlin. The victims’ therapist and their mother provided
testimony describing the victims’ mental states and the harm that would
result from the children seeing McLaughlin in the courtroom. Defense
counsel timely objected to the State’s motion and argued that the use of
the screen violated McLaughlin’s Sixth Amendment rights, and the State
failed to prove “anywhere near the level necessary” to circumvent these
rights. The court granted the State’s motion.
When it came time for D.M. and H.M. to testify, the jury was removed
from the courtroom, and a screen was placed between the witness stand
and McLaughlin. The jury was then brought back into the courtroom.
Additionally, both of the victims were brought into the courtroom
through a different door than other witnesses to avoid having any contact
with McLaughlin. D.M. and H.M. testified behind a screen, which
blocked their view of McLaughlin and McLaughlin’s view of them.
McLaughlin was permitted to observe the victims testify via a television
monitor, presumably to satisfy McLaughlin’s Sixth Amendment right to
confrontation.3
2
Section 92.54 provides:
(1) Upon motion and hearing in camera and upon a finding that
there is a substantial likelihood that the child . . . will suffer at
least moderate emotional or mental harm due to the presence of
the defendant if the child . . . is required to testify in open court, .
. . the trial court may order that the testimony of a child under the
age of 16 . . . who is a victim . . . be taken outside of the
courtroom and shown by means of closed circuit television.
*
*
*
(4) During the child’s . . . testimony by closed circuit television,
the court may require the defendant to view the testimony from
the courtroom. In such a case, the court shall permit the
defendant to observe and hear the testimony of the child . . . but
shall ensure that the child . . . cannot hear or see the defendant.
§ 92.54(1), (4) Fla. Stat. (2010).
“In all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const. amend. VI.
3
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McLaughlin argues that his due process rights were violated because
the placement of the screen between the victims and him during their
testimony was inherently prejudicial. See Pozo v. State, 963 So. 2d 831,
836 (Fla. 4th DCA 2007) (“[A] defendant must either show inherent
prejudice or actual prejudice to the fairness of the fact-finding process in
order to establish a violation of the defendant’s constitutional right to a
fair trial.”) (citing Holbrook v. Flynn, 475 U.S. 560, 572 (1986)) (emphasis
in original). “Actual prejudice requires some indication or articulation by
a juror or jurors that they were conscious of some prejudicial effect.”
Shootes v. State, 20 So. 3d 434, 438 (Fla. 1st DCA 2009) (citation
omitted). “Inherent prejudice, on the other hand, requires a showing by
the defendant that there was a n unacceptable risk of impermissible
factors coming into play.” Id. (citations omitted).
We begin our analysis by noting, as did our sister court in Hughes v.
State, 819 So. 2d 815 (Fla. 1st DCA 2002), that “section 92.54 provides
for the use of closed circuit television but not a partition.”4 Id. at 816;
see Coy v. Iowa, 487 U.S. 1012, 1020 (1988) (stating that “[i]t is difficult
to imagine a more obvious or damaging violation of the defendant’s right
to a face-to-face encounter” than screen-shielding the child accuser from
the defendant).
More recently, the Nebraska Supreme Court, under strikingly similar
circumstances, concluded that placing a screen between the victim and
the defendant while the victim testified was inherently prejudicial. See
State v. Parker, 757 N.W.2d 7, 18–19 (Neb. 2008). In Parker, during the
testimony of the alleged victim, the court placed a large screen in the
courtroom to block the defendant and victim from seeing one another.
Declaring that the practice violated the defendant’s right to a fair trial,
the Nebraska court stated:
[T]h e screen unduly compromised the presumption of
innocence fundamental to the right to a fair trial. The
presence of the screen in the courtroom, in an obvious and
peculiar departure from common practice, could have
suggested to the jury that the court believed [the victim] and
endorsed her credibility, in violation of [the defendant’s] right
to a fair trial.
Even though the court in Hughes noted that the use of a partition to
separate the defendant from the minor victim was error, it held that the error
was harmless because the defendant had admitted to committing the lewd and
lascivious acts upon the child. Hughes, 819 So. 2d at 815–16.
4
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Id. at 11. In reversing the defendant’s conviction, the court concluded:
[T]he inherently prejudicial practice in this case cannot pass
close scrutiny, because the court had available another
equally effective method of protecting [the victim] while
procuring her testimony that would not have been inherently
prejudicial to [the defendant’s] due process rights. Section
29–1926[5] specifically provides for various means of
obtaining the victim’s testimony through pretrial videotaping
or closed-circuit video from another room. It does not,
actually, make a n y reference to using a screen in the
courtroom.
Id. at 18.
We conclude that section 92.54 does not authorize the use of a screen
in the manner employed in this case, and that doing so lent undue
credibility to the witnesses. The proper procedure would have been to
have the witnesses testify outside the courtroom via closed circuit
television, after the court concluded that the victims would suffer
emotional or mental harm due to the presence of McLaughlin. See §
92.54, Fla. Stat.
Th e State has made no attempt to establish that this inherently
prejudicial practice was harmless and did not actually contribute to the
jury’s verdict. Nonetheless, we hold that the error was harmful. State v.
DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986); see § 924.33, Fla. Stat.
(2010) (“No judgment shall be reversed unless the appellate court is of
the opinion, after an examination of all the appeal papers, that error was
committed that injuriously affected the substantial rights of the
appellant.”). McLaughlin never admitted to committing the acts on the
victims, and the State’s entire case relied upon their testimony. Both of
the victims testified that McLaughlin used threats to keep them from
telling anyone about the alleged abuse. Therefore, the jurors could have
made the inference that the screen was used because the court believed
the victims needed to be protected from testifying in the presence of
McLaughlin. Accordingly, we reverse and remand for a new trial.
5
“Upon request of the prosecuting or defense attorney and upon a
showing of compelling need, the court shall order the taking of a videotape
deposition of a child victim of or child witness to any offense punishable as a
felony. The deposition ordinarily shall be in lieu of courtroom or in camera
testimony by the child.” Neb. Rev. St. § 29-1926 (1)(a) (2008).
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Reversed and remanded.
MAY, C.J., and HAZOURI, J., concur.
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Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Okeechobee County; Robert Belanger, Judge; L.T. Case No.
472008CF000175A.
Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Assistant Attorney General, West Palm Beach, for appellee.
Not final until disposition of timely filed motion for rehearing.
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