JONES V. STATE

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM A.D., 2004 EDWARD C. JONES, ** ** Petitioner, vs. ** CASE NO. 3D04-815 ** THE STATE OF FLORIDA, ** Respondent. LOWER TRIBUNAL NO. 92-2988 ** Opinion filed September 29, 2004. Petition Ineffective Assistance of Counsel. Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for petitioner. Charles J. Crist, Jr., Attorney General, and Annette M. Lizardo and Linda Katz, Assistant Attorneys General, for respondent. Before SCHWARTZ, C.J., and COPE and FLETCHER., JJ. COPE, J. The main question before us is whether it is fundamental error for the trial court to order a partial closure of the courtroom under subsection 918.16(2), Florida Statutes (2000) during the testimony of the victim of a sex crime, without making findings under Waller v. Georgia, 467 U.S. 39 (1984). We conclude that such a closure does not amount to fundamental error. A contemporaneous objection is required to preserve the issue for appellate review. I. Defendant-petitioner fifteen counts of lewd Edward and Jones was guilty of acts lascivious found on minor, his a stepdaughter, in violation of section 800.04, Florida Statutes (1997).1 The case came to trial in October, 2000. Prior to trial the State moved for an order partially closing the courtroom during the testimony of the victim. victim, who had been fifteen at the time offenses, was seventeen at the time of trial. the trial, subsection 918.16(2), Florida of the charged At the time of Statutes (2000) provided: (2) When the victim of a sex offense is testifying concerning that offense in any civil or criminal trial, the court shall clear the courtroom of all persons upon the request of the victim, regardless of the victim s age or mental capacity, except that 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 may remain in the courtroom. 1 The charged crimes occurred in 1998. 2 The Id.2 In response to the State s motion, the following transpired: THE COURT: Any objection to that? [DEFENSE COUNSEL]: I d like to see some legal authority. THE COURT: The Court has authority. At this time that motion is granted. Prior to the testimony of the victim, the court announced, Ladies and gentlemen, only family members can remain in the courtroom. Everyone else courtroom at this time. procedure. is going to have to leave the The defense made no objection to this We assume for present purposes that one or more members of the audience left the courtroom, although the defense put nothing on the record in this respect. The defendant affirmed on appeal. was convicted and his convictions were Jones v. State, 814 So. 2d 1051 (Fla. 3d DCA 2002) (affirmance without opinion). The defendant filed the instant ineffective assistance of appellate counsel. petition alleging In it he alleges that his appellate counsel was ineffective for failing to argue on appeal that the trial court erred by partially closing the Since the statute regulates trial procedure, the version in effect at the time of the trial is controlling, not the version in effect at the time of the defendant s crime. 2 3 courtroom without making the Georgia, 467 U.S. 39 (1984). findings required by Waller v. See also Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Alonso v. State, 821 So. 2d 423 (Fla. 3d DCA 2002). The defendant contends that his trial counsel adequately preserved the objection in the trial court, and if not, then appellate counsel should have raised the issue as being fundamental error. For the reason stated below, we reject the defendant s arguments. II. In Alonso v. State, this court addressed the procedure to be applied where the State seeks partial closure courtroom under section 918.16, Florida Statutes. of the First, the court must determine if the statutory criteria are satisfied. Second, the court must determine whether the four-part test of Waller v. Georgia, 467 U.S. at 48, is satisfied. 821 So. 2d at 426.3 3 See Alonso, In Alonso the defense objected to closure of The Alonso court said, in part: 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 4 the courtroom without the constitutionally-required thus preserving the issue for appellate review. findings, Id. at 425. In the present case, we reject the defendant s claim that defense counsel made a proper objection to the partial closure of the courtroom preserve an in issue the for trial appellate proceedings. review, the In order specific to legal argument or ground upon which it is based must be presented to Occhicone v. State, 570 So. 2d 902, 905-06 the trial court. (Fla. 1990) (quoting Bertolotti v. Dugger, 514 So. 2d 1095, 1096 (Fla. 1987)). When the State moved for the closure order, defense counsel said, I d like to see some legal authority. That bare statement did not constitute an objection and did not inform the trial court of the legal theory now being advanced, namely, that in order to have a partial closure of the courtroom, it would be necessary to make findings under Waller. actual closure statement for occurred, the record there that was Subsequently, when the no anyone objection, actually nor any left the 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. 821 So. 2d at 426 (quoting Pritchett v. State, 566 So. 2d 6, 7 (Fla. 2d DCA 1990)). 5 courtroom. Thus, the point was not preserved for appellate review. III. The defendant s main contention in this petition is that the failure to make findings under Waller is fundamental error and that his appellate counsel should have raised the issue on appeal, even in the absence of a proper objection in the trial court. The en banc Fourth District Court of Appeal has recently rejected such an argument. The Fourth District held that where the partial closure takes place without objection this does not constitute fundamental error. The majority view across the country is that a failure to object to a closure of the trial waives the right to a public trial. Furthermore, in Dixon v. State, 191 So.2d 94, 96 (Fla. 2d DCA 1966), the second district summarily rejected the appellant's claim of a violation of his right to a public trial because no objection was made. Most recently, our supreme court pointed to the lack of objection as a reason why there was no reversible error in the partial closure of a courtroom during voir dire. See Evans v. State, 808 So.2d 92, 105 (Fla.2001). Alvarez v. State, 827 So. 2d 269, 274 (Fla. 4th DCA 2002) (en banc) (citations omitted).4 In so ruling, the Fourth District receded from Williams v. State, 736 So. 2d 699 (Fla. 4th DCA 1999), which had held that an unobjected-to closure without Waller findings was fundamental error. 4 6 We agree with the Fourth District and align ourselves with the majority rule. A proper contemporaneous objection in the trial court is necessary to raise the need for Waller findings in connection with a request for partial closure courtroom under section 918.16, Florida Statutes. of the The absence of Waller findings is not fundamental error. We also add a practical consideration. Partial closure of the courtroom under this statute is frequently done in child Where a timely request for Waller findings sexual abuse cases. is made, that can readily be accomplished. defendant and his counsel make no Where, however, the objection to the partial closing of the courtroom, that is a good indication that at the time and under the circumstances, the defendant and his counsel did not think the issue to be particularly important. That is hardly of a situation which calls for application the fundamental error doctrine. The defendant argues that under federal precedent, an error of this type is a structural error which is not subject to waiver. That is incorrect. The United States Supreme Court has said, The most basic rights of criminal defendants are . . . subject to waiver. See, e.g., . . . Levine v. United States, 362 U.S. 610, 619, 80 S.Ct. 1038, 1044, 4 L.Ed.2d 989 (1960) (failure to object to closing of courtroom is waiver of right to public trial) . . . . Peretz v. United States, 501 U.S. 923, 7 936 (1991); see Alvarez v. State, 827 So. 2d at 274 (quoting Peretz); see also Luda v. State, 860 So. 2d 457, 458 n. 1 (Fla. 4th DCA 2003). Petition denied. FLETCHER, J., concurs. 8 Edward Jones v. State Case no. 3D04-815 SCHWARTZ, Chief Judge (dissenting). I believe that Williams v. State, 736 So. 2d 699 (Fla. 4th DCA 1999), rather than Alvarez v. State, 827 So. 2d 269 (Fla. 4th DCA 2002)(en banc), review denied, 845 So. 2d 887 (Fla. 2003),5 which overruled Williams, correctly decides the issue in The only authority cited by Alvarez which purports this case. to justify a departure from the fundamental error analysis in Williams, is Peretz v. United States, 501 U.S. 923, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991). In Peretz, however, the Supreme Court the specifically absence of the held that district judge error from involved voir conducted by a magistrate, was not structural. U.S. at 937 ( we are convinced that no dire there, the proceedings See Peretz, 501 such structural protections are implicated by the procedure followed in this case ). In contrast, I think courtroom is just such an error. the partial closure of the See Williams, 736 So. 2d at 701 (citing Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 5 I confess that, probably because of my headlong descent into (at least) constitutional senility, I have been unable to grasp the concept, espoused in Alvarez of a structural defect--which by definition goes so much to the heart of the criminal process that it cannot be tolerated, much less waived--may nonetheless be subject to waiver by a mere failure appropriately to object. 9 113 L.Ed.2d 302 (1991))(White, J., dissenting and specially concurring).6 As Williams, I believe correctly, states: The fact that the denial of the right to a public trial concerns plain error cognizable for the first time on appeal is best understood with reference to the significance of this right. The right to a public trial has been recognized as arising out of the distrust for secret trials. . . variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French Monarchy s abuse of the lettre de cachet. In re Oliver, 333 U.S. 257, 268-269, 68 S.Ct. 499, 92 L.Ed. 682 (1948). [A]t the time of the adoption of the Sixth Amendment the common law concept of a public trial had come to be regarded as an essential guarantee against any attempt to employ the courts as instruments of persecution. United States v. Kobli, 172 F.2d 919, 921 (3d Cir. 1949). The several essential purposes served by the public trial guarantee include: allowing the public to see that a defendant is fairly dealt with, encouraging trial participants to perform their duties more conscientiously, discouraging perjury, and bringing forth witnesses who might not otherwise testify. Douglas v. Wainright, 739 F.2d 531, 532 (11th Cir. 1984). Williams, 736 So. 2d conflict with Alvarez. at 701. I would reverse and certify That having failed, I would certify the It is true that Peretz s favorable citation of Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960), is to the contrary of this view. However, Levine long preceded both Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) and the line of cases which analyzes the waiver issue in terms of whether a structural defect is involved. Because of this fact, and particularly considering Justice Black s dissent, I have the temerity to believe that, if directly faced with the question again, the Supreme Court would reach an opposite conclusion. Whether or not this is true, however, I believe that this result is the correct one, which should be adopted as the law of Florida. 6 10 case as one involving a question of great public importance. Since that has failed as well, I just dissent. 11

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