Full Opinion

Third District Court of Appeal State of Florida Opinion filed February 12, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D19-1466 Lower Tribunal No. 17-229 ________________ Zanniya Moore, Petitioner, vs. The State of Florida, Respondent. On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade County, Appellate Division, Jeri B. Cohen, Laura Ann Stuzin and Carlos Lopez, Judges. Carlos J. Martinez, Public Defender, and John Eddy Morrison, Assistant Public Defender, for petitioner. Ashley Moody, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for respondent. Before EMAS, C.J., and SCALES and LOBREE, JJ. SCALES, J. Petitioner Zanniya Moore was convicted of two misdemeanors stemming from an altercation at her daughter’s elementary school. During Petitioner’s trial in county court, the trial judge directed Petitioner’s husband – who was to be tried separately for his arrest from the same incident – to step outside of the courtroom during Petitioner’s testimony. Petitioner appealed her convictions to the Miami- Dade County Circuit Court and argued that the removal of her husband from the courtroom violated her right to a public trial under the Sixth Amendment of the United States Constitution. The circuit court appellate division affirmed Petitioner’s convictions. Petitioner seeks second-tier certiorari relief from this Court. We deny the petition because the appellate division applied the correct law when it adjudicated Petitioner’s appeal. Background Facts and Procedure On February 14, 2017, Petitioner entered the premises of her daughter’s elementary school after her daughter was involved in an altercation with another student. Petitioner confronted the other student, and the school principal was forced to intercede and ask Petitioner to leave the school. When Petitioner refused, the principal called the police. The police arrived and found Petitioner and her husband, Bernard Darling, engaged in further confrontational behavior in the vicinity of students. When 2 Petitioner and Mr. Darling refused the police request to leave, the police arrested Mr. Darling. Petitioner then interfered with Mr. Darling’s arrest and the police arrested Petitioner as well. By information, the State charged Petitioner with resisting an officer without violence, disturbing a school assembly, trespass on school grounds after warning, and disorderly conduct. 1 Petitioner and her husband were tried separately. Petitioner’s trial occurred first, on May 25-26, 2017. Prior to Petitioner’s testimony on the second day of trial, the State sought Mr. Darling’s removal from the courtroom. The State explained to the trial court that Petitioner’s husband was scheduled for a separate trial commencing just days later on May 30, 2017. Over Petitioner’s counsel objection, the trial court found the State’s request “reasonable” and asked Mr. Darling to “step out” during Petitioner’s testimony. The entire exchange between the trial judge and the prosecutor, including Petitioner’s counsel’s objection, appears below: STATE: I know that there is a co-defendant in this case, and I know that the defendant in this case is about to testify. The co-defendant is being tried in another courtroom on May 30th. JUDGE: Okay. STATE: If that co-defendant is present in this courtroom, I would request that Your Honor perhaps remove him from the courtroom. 1 On May 26, 2017, a jury found Petitioner guilty of resisting an officer without violence and disturbing a school assembly, acquitting her of the other two charges. The trial court sentenced Petitioner to one year of probation on the resisting arrest count and six months of probation on the disturbing a school assembly count, to be served consecutively. 3 JUDGE: Okay. STATE: And that would be the State’s request, never having dealt with that. And I’ll leave it to your discretion. JUDGE: Okay. STATE: I think it will— JUDGE: Okay. DEFENSE: Your Honor, we would object to that. It’s a public trial, and I think he has a right to see it. And he’s allowed to watch. I believe I could proffer a reason to have him for this trial. JUDGE: Is he the co-defendant? DEFENSE: Yes. JUDGE: And he has a pending trial? DEFENSE: Yes. JUDGE: Where he may or may not testify? DEFENSE: Correct. JUDGE: Where he may or may not be tainted by his co-defendant’s testimony? DEFENSE: I don’t think there will be any taint, Your Honor. What happened on that day is what he would provide to the court at trial. JUDGE: Okay. You know, understanding what you said about the— obviously, the openness of the courtroom and everything. He has been here for most of the proceedings. I’ve noticed he was here yesterday; albeit, he wasn’t here for the morning session. But at this time the State’s request is reasonable since that’s an open and pending case where he’s a co-defendant and he may or may not testify. So for very— just those few moments of testimony, I am going to ask him to step out. And he may certainly return as soon as the cross concludes by the State. After the trial court rendered its judgment and sentence based on the jury’s guilty verdict, Petitioner appealed her two convictions to the circuit court appellate division. The sole basis of Petitioner’s appeal, below, was that the trial court violated Petitioner’s right to a public trial when it partially closed the trial proceedings by ordering Petitioner’s husband to leave the courtroom during Petitioner’s testimony. The Decision of the Circuit Court Appellate Division 4 While the appellate division recognized that there are circumstances in which a person may be removed from a courtroom during proceedings, it explained that, prior to removal, “a court must conduct an appropriate analysis as set forth by the Waller doctrine.” The United States Supreme Court established the requirements for a courtroom closure in Waller v. Georgia, 467 U.S. 39, 48 (1984), as follows: [T]he 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. In affirming Petitioner’s conviction, the appellate division’s decision acknowledged that the trial court did not undertake a formal Waller analysis. Nonetheless, the appellate division upheld Petitioner’s convictions because it found that, because the courtroom closure was only “partial” (i.e., Mr. Darling alone was excluded) – as opposed to the complete courtroom closure that occurred in Waller – the trial court satisfied an applicable lesser standard than the “overriding interest” test articulated in Waller. Citing to several federal decisions as support for applying the more relaxed standard, 2 the appellate division found that the trial court complied with a “substantial reason” test when it ordered the partial courtroom closure. 2 The appellate division cited to: United States v. Addison, 708 F.3d 1181, 1187 (10th Cir 2013); Judd v. Haley, 250 F.3d 1308, 1315 (11th Cir 2001); United States v. DeLuca, 137 F.3d 24, 34 (1st Cir. 1998); and Douglas v. Wainwright, 739 F.2d 531, 532 (11th Cir. 1984). 5 The appellate division determined that the State had advanced a substantial reason to remove Mr. Darling from the courtroom during his wife’s testimony because of a potential taint to his testimony in his upcoming trial. Thus, the appellate division concluded that the trial court did not violate Petitioner’s right to a public trial. Arguing that only the Waller “overriding interest” test is applicable to any courtroom closure – either complete or partial – Petitioner urges this Court to quash the appellate division’s opinion below. Analysis At the outset, we note that our second-tier certiorari review of an opinion of the circuit court appellate division is limited to whether the appellate division applied the correct law and afforded Petitioner due process. Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). As was the case with her appeal below, Petitioner’s sole basis for certiorari relief is her assertion that the trial court violated the Sixth Amendment by sequestering her husband during Petitioner’s testimony in her criminal trial. Specifically, as relevant to our review, Petitioner argues that the appellate division applied the incorrect law when, instead of applying Waller’s “overriding interest” test, it applied the less stringent “substantial reason” test. Petitioner relies primarily on the Florida Supreme Court decision in Kovaleski v. State, 103 So. 3d 859 (Fla. 2012). 6 In Kovaleski, the defendant was convicted of lewd and lascivious acts on a minor. Id. at 860. In conformity with section 918.16(2) of the Florida Statutes – a statute allowing for the partial closure of a courtroom during the testimony of a sexual abuse victim3 – the trial court partially closed the courtroom during the testimony of the victim. Id. at 861. The defendant challenged his conviction, asserting that the trial court’s closing of the courtroom pursuant to the statute violated his Sixth Amendment right to a public trial. Id. at 860. The Florida Supreme Court upheld the conviction, concluding that, as a matter of law, there is always an “overriding interest” to support a partial courtroom closing when a sexual abuse victim testifies; and thereby, the trial court’s closing of the courtroom pursuant to the statute met the standard set out in Waller. We recognize that, in Kovaleski, our Supreme Court determined that the partial courtroom closure ordered by the trial court pursuant to section 918.16(2) 3 At the time of Kovaleski’s trial, this statute read, in pertinent part, as follows: 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. § 918.16(2), Fla. Stat. (2001). 7 complied with the Waller test, rather than the federal partial courtroom closure cases relied upon below by the appellate division. We decline Petitioner’s invitation, though, to construe the Kovaleski opinion’s holding – “that section 918.16(2) embraces the requirements of Waller” 4 – as somehow implicitly rejecting the less stringent federal test for partial courtroom closings that are outside of that statute’s scope. The Kovaleski court did not address courtroom closings for proceedings, such as Petitioner’s, to which section 918.16(2) is inapplicable. Nor have we been provided any authority suggesting that the line of cases relied upon by the appellate division is no longer good law. Consequently, we cannot say that the appellate division applied the incorrect law when it looked past the Kovaleski decision and applied the “substantial reason” test developed by the federal courts in order to uphold the constitutionality of the trial court’s decision to exclude Petitioner’s husband from the courtroom.5 Petition denied. 4 Kovaleski, 103 So. 3d at 861. 5 On a second-tier certiorari review, we determine not whether the lower tribunal applied the law correctly, but rather whether the lower tribunal applied the correct law. See Stranahan House, Inc. v. City of Fort Lauderdale, 967 So. 2d 1121, 1125 (Fla. 4th DCA 2007) (“Applying the correct law incorrectly does not warrant certiorari review.”). Hence, we need not, and therefore do not, reach the issue of whether the exclusion of Petitioner’s husband from the courtroom was supported by a “substantial reason.” 8