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Full Opinion
Third District Court of Appeal
State of Florida
Opinion filed May 14, 2025.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-2081
Lower Tribunal No. F21-13275
________________
Fernando Castano,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Ellen Sue
Venzer, Judge.
Michael Ufferman Law Firm, P.A., and Michael Ufferman
(Tallahassee), for appellant.
James Uthmeier, Attorney General, and Magaly Rodriguez, Assistant
Attorney General, for appellee.
Before LINDSEY, BOKOR and GOODEN, JJ.
GOODEN, J.
The relationship between a member of the clergy and parishioner is
sacred. The Legislature has placed great importance on this relationship by
enacting a statute cloaking certain communications with clergy with privilege.
§ 90.505, Fla. Stat. (2024). This case concerns the bounds of that privilege
within the context of family counseling.
I.
Appellant Fernando Castano appeals his conviction and sentence. He
was charged with eleven counts: (1) aggravated assault with a deadly
weapon; (2) robbery by sudden snatching; (3) battery; (4 - 6) lewd and
lascivious molestation on a child less than twelve years of age; (7) lewd and
lascivious molestation on a child between the ages of twelve and sixteen; (8)
lewd and lascivious exhibition; and (9 - 11) capital sexual battery. The first
three counts concern Castano’s wife and stem from a domestic incident on
July 27, 2021. After Castano was arrested on these initial charges,
allegations of sexual abuse were made and additional charges brought. 1
At issue is the testimony of Lakhi Dadlani, a pastor and certified
counselor at Hope 4 Life. Before trial, Castano filed an invocation of clergy
privilege and moved to exclude the testimony of Dadlani. Dadlani provided
1
At trial, the defense’s theory was that the allegations concerning sexual
abuse were fabricated after the children learned Castano had a mistress.
2
a sworn statement to the police, and later provided an affidavit. The trial
court found that the communications failed to meet the fourth requirement of
section 90.505, Florida Statutes. Specifically, the court found that the
defense did not prove the communication was not intended for further
disclosure. As a result, the State was allowed to present Dadlani’s testimony
at trial.
Dadlani testified that he met Castano when he came to Hope 4 Life in
2018 or 2019. Castano sought spiritual and pastoral counseling for his
family. In May or June 2021, Castano called him and asked him to meet at
his son’s football practice so that they could talk. There, Castano told
Dadlani that he had sexual encounters with his daughter and that his wife
wanted a divorce. Dadlani believed that Castano told him this information in
the hopes he would speak with his wife and daughter and help restore their
family. Dadlani subsequently contacted Castano’s wife. Castano’s wife
confirmed the abuse and stressed that the family did not want to talk about
this with others.
During closing arguments, the State argued:
Let’s talk about Lakhi. Defense doesn’t really have anything to
say about Lakhi. It’s a problem for them.
DEFENSE: Objection, shifting the burden.
THE COURT: Overruled.
3
At the close of trial, the jury found Castano guilty of all eleven counts.
He was sentenced to life in prison. This appeal followed.
On appeal, Castano contends that the trial court abused its discretion
by admitting Dadlani’s testimony as it was protected by the clergy
communications privilege. He further argues that this error was
compounded when the State noted the privileged testimony in closing
argument and improperly shifted the burden to him. According to him, these
errors cumulatively deprived him of a fair trial.
II.
A.
The clergy communication privilege is “rooted in the imperative need
for confidence and trust. The priest-penitent privilege recognizes the human
need to disclose to a spiritual counselor, in total and absolute confidence,
what are believed to be flawed acts or thoughts and to receive priestly
consolation and guidance in return.” Trammel v. United States, 445 U.S. 40,
51 (1980). See also United States v. Nixon, 418 U.S. 683, 709–10 (1974)
(“And, generally, an attorney or a priest may not be required to disclose what
has been revealed in professional confidence.”); In re Grand Jury
Investigation, 918 F.2d 374, 383 (3d Cir. 1990) (“[T]he privilege protecting
communications to members of the clergy, like the attorney-client and
4
physician-patient privileges, is grounded in a policy of preventing disclosures
that would tend to inhibit the development of confidential relationships that
are socially desirable.”).
Before the Protestant Reformation, the privilege was fully recognized
in England. Indeed, the confidentiality connected to the communication was
part of the seal of the Roman Catholic confessional. See Judge Rupert D.
H. Bursell, The Seal of the Confessional, 2 Ecclesiastical L.J. 84, 84-89 (July
1990); Edward Badeley, The Privilege of Religious Confessions in English
Courts of Justice Considered 75 (1865) (“In a word, if Confession is
authorized, or permitted, as a religious Rite, its secrecy is authorized and
permitted also; for without it, the Rite itself is neutralized, and the rules which
sanction it are a dead letter. . . .”); Lennard K. Whittaker, The Priest-Penitent
Privilege: Its Constitutionality and Doctrine, 13 Regent U.L. Rev. 145, 149
(2000) (“[T]he entire concept of the priest-penitent privilege stems from the
Catholic sacrament . . . .”).
However, after the Reformation when England was no longer a Roman
Catholic nation, the privilege fell out of favor and was largely abrogated.2 In
fact, Blackstone made no mention of the privilege in his Commentaries on
2
For example, in Regina v. Hay, an English court held a Catholic priest in
contempt for refusing to disclose information he learned during confession.
175 Engl. Rep. 933 (N.P. 1860).
5
the Laws of England. “Because of this it is said the claimed privilege was
not one at common law and, therefore, if now to be recognized must be
enacted into statute . . . .” Mullen v. United States, 263 F.2d 275, 278 (D.C.
Cir. 1958).3 See also § 90.505, Fla. Stat., Law Revision Council Note, 1976
(“Although the privilege was not recognized at the common law, a majority
of the states, including Florida, has enacted a statutory privilege covering
religious denominations and organizations in general.”); Seidman v.
Fishburne-Hudgins Educ. Found., Inc., 724 F.2d 413, 415 (4th Cir. 1984)
(“The priest-penitent or clergyman-communicant privilege has no firm
foundation in common law . . . . Statutes creating the privilege vary, but
generally are designed to safeguard the clergyman’s status as a secure
repository for the confessant’s confidences.”).
In 1959, the Florida Legislature made a policy determination to create
the statutory clergy communications privilege. See Ch. 59-144, Laws of Fla.
This law was repealed and later replaced with the enactment of the Florida
3
But the first case in the United States to address the privilege was decided
under the free exercise clause—before the enactment of any statutory
privilege. People v. Phillips was an unpublished case, but was reported in
full by the priest’s attorney in his book: William Sampson, The Catholic
Question in America 1-122 (1813). Since that time, nearly every state has
enacted statutes or evidentiary rules for the privilege.
6
Evidence Code. See Ch. 76-237, Laws of Fla; Ch. 78-379, Laws of Fla.
Presently, section 90.505 provides:
(1) For the purposes of this section:
(a) A “member of the clergy” is a priest, rabbi, practitioner of
Christian Science, or minister of any religious organization
or denomination usually referred to as a church, or an
individual reasonably believed so to be by the person
consulting him or her.
(b) A communication between a member of the clergy and a
person is “confidential” if made privately for the purpose of
seeking spiritual counsel and advice from the member of
the clergy in the usual course of his or her practice or
discipline and not intended for further disclosure except to
other persons present in furtherance of the communication.
(2) A person has a privilege to refuse to disclose, and to prevent
another from disclosing, a confidential communication by the
person to a member of the clergy in his or her capacity as spiritual
adviser.
(2) The privilege may be claimed by:
(a) The person.
(b) The guardian or conservator of a person.
(c) The personal representative of a deceased person.
(d) The member of the clergy, on behalf of the person. The
member of the clergy’s authority to do so is presumed in
the absence of evidence to the contrary.
§ 90.505, Fla. Stat.
7
The plain text has four requirements for the privilege to apply. First,
the communication must be with a member of the clergy. Second, the
communication must be made for the purpose of seeking counsel and
advice. Third, the clergy member must receive the communication in the
usual course of his practice. Fourth, the communication must be private and
not intended for further disclosure—except to others present in furtherance
of the communication. See also McDermott v. State, 360 So. 3d 1213, 1216
(Fla. 5th DCA 2023); Nussbaumer v. State, 882 So. 2d 1067, 1074 (Fla. 2d
DCA 2004). There are no listed exceptions. State v. Pinder, 678 So. 2d 410,
414 (Fla. 4th DCA 1996).
The parties do not dispute that the first three elements are met.
Instead, they focus on the fourth element: whether the communication was
“private” and “not intended for further disclosure except to other persons
present in furtherance of the communication.” 4
While several Florida cases address the presence of third parties, none
involve family counseling. See Fernandez v. State, 730 So. 2d 277, 282
(Fla. 1999) (holding privilege did not apply where pastor’s wife, pastor’s
children, appellant’s girlfriend, and appellant’s children were all present at
4
At oral argument, the State conceded that the third person does not need
to be physically present to be included in the communication.
8
time of communication and the pastor testified he met with appellant “not so
privately”); State v. Gonzalez, 378 So. 3d 702, 710 (Fla. 2d DCA 2024)
(holding privilege did not apply where statements made at a large meeting
before entire church, and it was recorded on video). Indeed, the mere
presence of another person by itself does not automatically negate the
privilege. The text of the statute provides for the inclusion of some third
parties in the communication: “except to other persons present in furtherance
of the communication.” § 90.505(1)(b), Fla. Stat.
Instead, we focus on whether the presence of the third person was
essential to the furtherance of that communication or under circumstances
where confidentiality was expected. 5 See generally § 90.505, Fla. Stat., Law
Revision Council Note, 1976 (“Consequently, communications made in the
presence of third parties not necessary to the furtherance of the
communication or under circumstances where confidentiality cannot be
expected, e.g., in public facilities or large groups, are not privileged.”); §
90.507, Fla. Stat. (2024) (“A person who has a privilege against the
disclosure of a confidential matter or communication waives the privilege if
5
While controlled by different statutory provisions, this analysis is similar to
other privileges in Florida. See State v. Topps, 142 So. 3d 978, 981 (Fla. 4th
DCA 2014) (psychotherapist-patient privilege); Gerheiser v. Stephens, 712
So. 2d 1252, 1254 (Fla. 4th DCA 1998) (attorney-client privilege).
9
the person . . . voluntarily discloses or makes the communication when he
or she does not have a reasonable expectation of privacy, or consents to
disclosure of, any significant part of the matter or communication. This
section is not applicable when the disclosure is itself a privileged
communication.”); Gonzalez, 378 So. 3d at 710. The context in which the
statements are made is critical to this determination. Castano engaged
Dadlani for family counseling. Even Dadlani thought the subject
communication was so that he could help restore their family and save their
marriage. Any request or implication for Dadlani to contact the wife was in
this context.
Under these specific facts, we find that the inclusion of the wife in this
communication was in furtherance of the family counseling. The disclosure
was simply to another person within that sphere of privilege. As an integral
member of that family unit, the wife was a necessary and essential
participant in that communication. The record demonstrates that Castano
had an expectation of privacy of the communications outside of the confines
of his family and it was not intended for further disclosure. Indeed, Castano’s
wife stressed that the family did not wish to discuss it with others. Cf.
Bottoson v. State, 443 So. 2d 962, 965 (Fla. 1983) (holding letters not
privileged where defendant handed letters to ministers with the intent that
10
they deliver to state attorney). Equally, there is no evidence that Dadlani
ever told Castano that the statements would not be kept confidential. Cf.
Monroe v. State, 14 So. 3d 1205, 1206 (Fla. 4th DCA 2009) (“As to the clergy
testimony, the minister testified that he warned defendant several times that
he would not treat anything incriminating as confidential.”). Accordingly, the
statements are subject to the clergy communication privilege.
B.
While it does not appear that Florida courts have considered this
question within the context of family or group counseling, other jurisdictions
have reached a similar conclusion. In our analysis of these cases, we are
cognizant that all states’ laws may not be verbatim and that these cases are
merely persuasive.
In State v. Ellis, 756 So. 2d 418 (La. Ct. App. 1999), the defendant, his
wife, the victim, and the victim’s wife all met with their pastor to discuss an
incident between the men. This was a closed-door meeting at the church.
Id. at 420. The trial court ruled that the privilege was waived by the presence
of the victim and his wife. Id. The Louisiana appellate court disagreed and
held that the statements made during that meeting were privileged and not
intended for further disclosure. Id. at 420–21. It explained that the pastor
was attempting to counsel the couples to help reconcile their differences. Id.
11
Louisiana’s statute is similarly worded to Florida’s. La. Code Evid. art. 511
(“A communication is ‘confidential’ if it is made privately and not intended for
further disclosure except to other persons present in furtherance of the
purpose of the communication.”).
Likewise, in State v. Archibeque, 221 P.3d 1045 (Ariz. Ct. App. 2009),
the defendant and his wife sought marriage counseling from their church
bishop. When the couple met with the bishop, the defendant admitted to
sexually touching his stepdaughter. Id. at 1048. The trial court found that
the statements fell within the privilege and the State appealed. Id. The
Arizona appellate court agreed that the statements were privileged. Id. at
1049. It found that the privilege was not waived by the presence of the wife
as the defendant reasonably believed the communication would remain
private. Id. at 1050. The Court noted that the wife was not a “foreign and
uninterested third party” and the defendant’s conduct “had a direct effect
upon his wife.” Id. Therefore, the wife’s presence was in furtherance of the
family counseling and repentance process. Id.
Similarly, in Alternative Health Care System, Inc. v. McCown, 514
S.E.2d 691 (Ga. Ct. App. 1999), a hospice patient sought spiritual counseling
from a chaplain for her and her family. The chaplain spoke to the patient and
her family “to provide pastoral counseling, spiritual guidance and support to
12
persons in need who requested it.” Id. at 697. The Georgia appellate court
found that the statements made during this family counseling were
privileged. Id. It noted the lack of authority for the proposition that the
privilege is waived where more than one person is seeking spiritual comfort
or counseling at the same time. Id.
In State v. Studdard, 688 S.W.3d 788 (Mo. Ct. App. 2024), a minor
victim and her mother met with the family’s pastor and the pastor’s wife for
family counseling. The pastor’s wife was often present when a woman
sought counseling. Id. at 800. The Missouri appellate court ruled that the
statements made during the family session were privileged. The presence
of the victim’s mother and the pastor’s wife were both necessary and in
furtherance of the family counseling. Id. at 802. See also Kruglikov v.
Kruglikov, 217 N.Y.S.2d 845, 846 (N.Y. Sup. Ct. 1961) (holding a rabbi could
not be compelled to testify as to marriage counseling sessions conducted
prior to a couple’s divorce proceedings).
III.
Because we find that Castano’s statement to Dadlani was subject to
the clergy communication privilege, the trial court abused its discretion by
allowing the subject testimony. This error was not harmless. We cannot say
that there was no reasonable possibility that the error contributed to the
13
conviction. State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). Despite
the State’s assertions otherwise, this case presented as a he said, family
said case and Castano’s theory of defense was that these were false
allegations in retaliation for his infidelity. Consequently, Dadlani’s testimony,
as an outsider of the family, was the most important at trial—so much so, the
State highlighted it in its closing and noted how problematic it was for
Castano.
Nevertheless, we find that this harm only goes to the convictions
concerning sexual abuse—Counts 4 – 11. We reverse those convictions
only, and affirm the three remaining convictions stemming from the July 27,
2021, incident.
Reversed in part, affirmed in part.
14
Case Information
- Court
- Fla. Dist. Ct. App.
- Decision Date
- May 14, 2025
- Status
- Precedential