VANCE JEROME FARMER, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT

Fla. 4th DCA | 2013-12-11
No. 4D13-2294
STEVENSON, GROSS and GERBER, JJ., concur.
128 So. 3d 248 Florida District Court of Appeal, Fourth District (2013) Positive Treatment
Cited by 1 case

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Synopsis

Petitioner sought relief for ineffective assistance of appellate counsel, claiming counsel should have challenged the trial court's use of a projector screen placed between the defendant and a four-year-old child abuse victim during testimony. The court denied the petition, holding that because trial counsel agreed to the screen's use and made no objection, the issue was waived and appellate counsel was not ineffective in failing to raise an unpreserved issue.


Holding

Appellate counsel was not ineffective because the issue was not preserved for appeal and was waived by trial counsel's agreement to the screen's use. Because defense counsel agreed to the screen without objection, the issue was forfeited and appellate counsel had no duty to raise an unpreserved issue. The court found no controlling authority holding that such shielding constitutes fundamental error that cannot be waived.


Headnotes

[1] Failure to object to the placement of a projector screen between a child victim and a defendant during testimony waives the issue for appeal.

[2] Appellate counsel is not ineffective for failing to raise an issue that was waived by trial counsel's agreement to the procedure.

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Key Quotes

“The issue was not preserved for appeal and was waived by trial counsel. Accordingly, appellate counsel was not ineffective in failing to raise this unpreserved issue.”

Establishes the primary holding that failure to preserve an issue at trial waives appellate review and precludes ineffective assistance claims based on unpreserved issues.

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Facts & Procedural History

A four-year-old child abuse victim (three years old at the time of the offense) testified at trial regarding injuries including a broken collarbone, b…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits. Petitioner argues that appellate counsel should have argued that the trial court erred in allowing a projector screen to be placed between the defendant and the four-year-old child abuse victim during the child’s testimony at trial.1 See Coy v. Iowa, 487 U.S. 1012, 1021, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988); McLaughlin v. State, 79 So.3d 226, 228-29 (Fla. 4th DCA 2012); Oliver v. State, 125 So.3d 244 (Fla. 4th DCA 2013), rev. granted, 122 So.3d 869 (Fla.2013); Overholt v. State, 110 So.3d 530, 531 (Fla. 4th DCA 2013), rev. granted, 122 So.3d 869 (Fla.2013).

Petitioner acknowledges that no objection to the use of the screen was lodged at trial and trial counsel had agreed *250to the use of the screen. The issue was not preserved for appeal and was waived by trial counsel. Accordingly, appellate counsel was not ineffective in failing to raise this unpreserved issue. See Downs v. Moore, 801 So.2d 906, 910 (Fla.2001).

We acknowledge that footnote two of Oliver contains dicta suggesting that the use of a screen in this manner is fundamental error. In Oliver, trial counsel objected to the use of the screen but did not raise the specific argument that the screen was “inherently prejudicial.” Notwithstanding the reference to fundamental error, the objection in Oliver was sufficient to preserve the issue. 125 So.3d at 246 n. 2 (citing Hopkins v. State, 632 So.2d 1372, 1374 (Fla.1994), where the confrontation clause objection was also found sufficient to preserve a similar issue).

Here, defense counsel agreed to the use of the screen.2 Petitioner cites no controlling authority holding that shielding the child victim in this manner constitutes fundamental error that cannot be waived. In all the reported cases, an objection was lodged to the use of the screen. The failure to object in this case waived the issue.

Involving a “denial of face-to-face confrontation,” Coy recognized that a confrontational clause violation is subject to harmless error analysis. 487 U.S. at 1021, 108 S.Ct. 2798. A fundamental error cannot be harmless. Reed v. State, 837 So.2d 366, 369-70 (Fla.2002). Coy ⅛ recognition that use of a witness screen is subject to harmless error analysis establishes that the practice is not so prejudicial that it categorically amounts to fundamental error depriving a defendant of a fair trial. Stated another way, the negative inferences that the jury might draw from the use of a screen is not necessarily so prejudicial that it “ ‘reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” Rogers v. State, 783 So.2d 980, 1002 (Fla.2001) (quoting Urbin v. State, 714 So.2d 411, 418 n. 8 (Fla.1998)). The holding of McLaughlin is that the practice is “inherently prejudicial” and can be reversible where a defendant objects and elects for the statutory closed circuit video procedure. Where a defendant acquiesces to the use of a screen, the issue is waived. Appellate counsel was not ineffective in failing to raise this unpreserved issue.

Petition for ineffective assistance of counsel is denied.

STEVENSON, GROSS and GERBER, JJ., concur.


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