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National Crime Victim Law Institute

Kovaleski v. State, No. SC09-536, — So. 3d —, 2012 WL 5258677 (Fla. Oct. 25, 2012).

November 02, 2012

Defendant was convicted of two counts of lewd and lascivious acts on a minor.  During defendant’s retrial in 2006, the trial court partially closed the courtroom during the testimony of the child-victim, in accordance with a statutory provision allowing for partial closure upon the request of any testifying victim of a sex offense.  Defendant appealed, arguing that the statutory closure provision conflicted with the requirements established by the Supreme Court in Waller v. Georgia, 467 U.S. 39 (1984).  In Waller, the Court held that the presumption of openness may be overcome if the following requirements are met: (1) the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced; (2) the closure must be no broader than necessary to protect that interest; (3) the trial court must consider reasonable alternatives to closing the proceedings; and (4) the court must make findings adequate to support the closure.  The statutory closure provision at issue provides that upon request of a victim of a sex offense, the courtroom shall be cleared during the testimony of the victim, with the exception of the “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.”  The Florida Supreme Court rejected defendant’s challenge and held that the statute itself “acceptably embraces the requirements set forth in Waller” for the following reasons: First, closure is not automatic, but occurs only at the request of a testifying victim and “protecting the victim upon his or her request is a compelling interest of the State,” which satisfies the initial Waller requirement.  Second, the closure is narrow—applying only to the testimony of the victim—and a number of individuals, including members of the press, are allowed to remain in the courtroom, making the closure no broader than necessary.  Third, the court found that “allowing the parties [specified in the statute] to remain in the courtroom … provides for the most reasonable alternative to closing the courtroom during the trial.”  Finally, trial courts were advised to ensure that the statute applies to the case and that it is properly applied, reflecting these findings in the record to allow for appellate review.  Defendant’s conviction was affirmed.