Clements v. StateClements v. State
Robert A. Butterworth, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
GOSHORN, J.
Floyd Clements appeals the judgment and sentences imposed after the jury found him guilty of seven counts of sexual battery on a child under 12 and three counts of lewd acts upon a child. On appeal, Clements argues that the trial court committed reversible error in a number of instances. While we disagree with his contentions, we find one issue, the trial court‘s partial closure of the courtroom while the child victim testified, merits discussion.
Pursuant to
On appeal, Clements asserts that Pritchett v. State, 566 So. 2d 6 (Fla. 2d DCA), review dismissed, 570 So. 2d 1306 (Fla.1990) and Thornton v. State, 585 So. 2d 1189 (Fla. 2d DCA 1991) mandate reversal. In Pritchett, the trial court cleared the courtroom of all spectators, without any analysis whether complete closure was warranted. The Second District reversed because of the trial court‘s failure to make findings to justify the closure:
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 (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.
The appropriate analysis to follow to determine whether a particular case warrants closure is set forth in Waller [v. Georgia, 467 U.S. 39 (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.
Pritchett, 566 So. 2d at 7. Thornton was factually almost identical to Pritchett. Again, the trial court closed the courtroom to everyone without making the Waller four-factor inquiry and without regard to the persons allowed to remain in the courtroom pursuant to
Thornton and Pritchett are easily distinguishable from the instant case. Unlike Thornton and Pritchett, where the trial judges swept the courtroom, of all spectators without regard to
In Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982), the trial court applied a Massachusetts statute which provided for the exclusion of everyone except those with a direct interest from trials of sex abuse charges where the victim was under the age of 18. A newspaper objected on First Amendment grounds (not Sixth Amendment as is involved here).3 The Supreme Court held that to justify any type of closure, the trial court must find “that the denial of [the right of access to the court] is necessitated by a compelling
Two years later, the Supreme Court addressed the courtroom closure issue under the Sixth Amendment. In Waller v. Georgia, 467 U.S. 39 (1984), the defendants were charged with violating racketeering laws and moved to suppress certain wire tap evidence. At the suppression hearing, the court excluded everyone except the parties, lawyers, witnesses, and court personnel. The Supreme Court held that the complete closure of the courtroom over defendants’ objections during the seven-day suppression hearing violated the Sixth Amendment.4 The court wrote:
In sum, we hold that under the Sixth Amendment any closure of a suppression hearing over the objections of the accused must meet the tests set out in Press-Enterprise [Co. v. Superior Court of California, 464 U.S. 501 (1984)] and its predecessors.
* * *
Under Press-Enterprise, the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.
Waller addressed the total closure of a hearing, not a partial closure such as in the instant case. The Eleventh Circuit has applied a more lenient test to partial closures. In Douglas v. Wainwright, 739 F.2d 531 (11 Cir.1984), cert. denied, 469 U.S. 1208 (1985), the court upheld its prior decision (which the Supreme Court had vacated for reconsideration in light of Waller) that the impact of the partial closure (the press, defendant‘s family members, and the witness were allowed to remain) did not reach the level of a total closure, and thus “only a ‘substantial’ rather than ‘compelling’ reason for the closure was necessary,” a reference to the first Waller factor. Id. at 533 (citations omitted). Where there has been only a partial closure, the court “must look to the particular circumstances to see if the defendant still received the safeguards of the public trial guarantee.” Id. at 532.
The problem Clements sees in the instant case is that the trial court did not test the closure request in any manner—it simply ordered closure without consideration of whether there was even a substantial reason for the closure (per Douglas), let alone the other Waller factors. We do not view the trial court‘s decision to follow the statute, without independent inquiry, as error. We hold that the four-factor inquiry of Waller is not imposed on cases where the partial closure order is entered pursuant to
The Legislature, by enacting
AFFIRMED.
W. SHARP, J., and ORFINGER, M., Senior Judge, concur.