Gibson v. StateGibson v. State
ORFINGER, Judge.
The State suggests that we did not correctly apply Coy v. Iowa, ___ U.S. ___, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988) to the facts оf this case. Further review convinces us that the Statе‘s position is correct, and we therefore grant rehearing, withdraw the original opinion in this case аnd substitute the following in its place.
At trial, the judge allowed the prosecution to place a one-way mirror in the courtroom between the defendant and the 13 year old victim-witness. Although the defendant objected, it was only on the basis that “[i]t might create, in the jury‘s mind,
In Coy v. Iowa, supra, the defendant objected to the placing of a screen between himself and the witness stand while the two 13 year old victim-witnesses werе testifying, specifically arguing that this procedure viоlated his Sixth Amendment right to confrontation. Although the Suprеme Court agreed that the placement of the screen violated defendant‘s constitutional right of confrontation, the court majority rejected the suggestion that the error was fundamental and per se reversible, and instead held that such violation of the Confrontation Clause was subject to the harmless error standard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), reversing the judgment and remanding the case to the Iowa Supreme Court to determinе the issue of harmless error.
Constitutional errors which аre not of a fundamental character arе waived unless timely and properly objected tо in the trial court. Ray v. State, 403 So.2d 956, 960 (Fla. 1981); Clark v. State, 363 So.2d 331, 333 (Fla. 1978). An error which may be categorizеd as harmless is not per se reversible, State v. DiGuilio, 491 So.2d 1129 (Fla. 1986), and may be waived if not objected to. In Steinhorst v. State, 412 So.2d 332 (Fla. 1982), the court held:
Except in сases of fundamental error, an appellate court will not consider an issue unless it is presentеd to the lower court ... Furthermore, in order for an argument to be cognizable on appeal, it must bе the specific contention asserted as lеgal ground for the objection, exception or motion below. [Citations omitted].
Id. at 338. See also Sanderson v. State, 390 So.2d 744 (Fla. 5th DCA 1980).
The objection thаt the jury might believe that the witness might be afraid of the defendant did not present to the trial court the issue of defendant‘s right of confrontation, and that issue was therеfore not preserved for appellatе review. With the confrontation issue not properly raised in the trial court or before us for review, we cannot say that the trial court otherwise abused its discretion in permitting the use of the mirror. The judgment of conviction is therefore affirmed.
AFFIRMED.
COBB, J., concurs.
COWART, J., dissents without opinion.