M.L.K. v. State of Florida

          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                        No. 1D2023-1980
                 _____________________________

M.L.K. III,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Leon County.
Anthony B. Miller, Judge.


                         August 20, 2025

NORDBY, J.

     Appellant challenges the trial court’s order holding him in
indirect criminal contempt. Appellant contends that, at the
contempt hearing, his removal from the courtroom during the
testimony of an adverse witness violated his right to confrontation
under the Sixth Amendment. We agree and reverse. We decline to
address the other issues raised by Appellant.

                                I.

    The trial court proceedings against Appellant began as
dependency proceedings. Ultimately, the trial court terminated
Appellant’s parental rights to his two children. The termination
order expressly prohibited Appellant from having any contact with
either child.

     About a month later, the younger child alleged that Appellant
had made contact. The Department of Children and Families
moved for an order to show cause against Appellant for violating
the no-contact provision. The trial court ultimately ordered
Appellant to show cause as to why he should not be held in indirect
criminal contempt. The trial court also set a hearing on the matter.
The hearing notice provided that the child would testify remotely
and ordered Appellant to be removed from the courtroom during
the child’s testimony.

     Because Appellant faced criminal contempt proceedings, he
was appointed counsel from the public defender’s office. Right
before the contempt hearing, Appellant’s defense counsel objected
to the child testifying remotely. He argued that defendants have a
Sixth Amendment right to confront their accusers and that, absent
an agreement, they must appear in person. The trial court noted
the objection but ruled that Appellant would still have to leave the
courtroom before the child’s testimony.

     The child testified remotely. And consistent with its earlier
ruling, the trial court instructed Appellant to leave the courtroom.
As Appellant was leaving, defense counsel renewed his objection
to Appellant’s removal as a violation of his confrontation rights.
The trial court overruled the objection.

     The child’s testimony detailed an incident in which a man
approached the child at a sporting event. The child believed the
man was Appellant. In addition to providing specific details about
the incident (and why the child identified Appellant as the man),
the child testified to feeling threatened by the man’s presence.
Before beginning his cross-examination, defense counsel renewed
the objection to Appellant’s removal from the courtroom. During
cross-examination, defense counsel tried to consult Appellant
outside the courtroom but declared it was ineffective as Appellant
did not hear “any of the testimony.” Defense counsel explained,
“the lack of [Appellant] being present for the [witness’s] testimony,
his inability to confront the witness and the limitations in the way



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that [this] ties my hands” frustrated his ability to cross-examine
the witness.

      After the child’s testimony, Appellant returned to the
courtroom and provided his own testimony where he denied
contacting the child. The court ultimately found Appellant guilty
of indirect criminal contempt and imposed a one-week suspended
jail sentence following six months of probation. This timely appeal
follows.

                                 II.

     We typically review a criminal contempt order for an abuse of
discretion. West v. State, 283 So. 3d 1289, 1291 (Fla. 1st DCA
2019). That said, challenges based on the Confrontation Clause are
reviewed de novo. Calloway v. State, 210 So. 3d 1160, 1187 (Fla.
2017); Chambers v. State, 200 So. 3d 242, 246 (Fla. 1st DCA 2016).
We therefore review Appellant’s confrontation claim de novo.

     Like any criminal defendant, a person faced with criminal
contempt is entitled to assert their constitutional rights. 1 See
Andrews v. Walton, 428 So. 2d 663, 665 (Fla. 1983) (“Criminal
contempt proceedings are ‘effectively criminal in nature and
persons accused of [criminal] contempt are as much entitled to the
basic constitutional rights as are those accused of violating
criminal statutes.’” (quoting Aaron v. State, 284 So. 2d 673, 675
(Fla. 1973))). “The right to confront adverse witnesses at trial . . .
has long been secured by both the United States and Florida

    1 We note that Appellant raised a similar confrontation claim

in his appeal from the trial court order terminating his parental
rights. This court affirmed that order, citing authority that the
constitutional right to confront witnesses is not implicated in
dependency or termination of parental rights proceedings as those
“‘are civil in nature, not criminal.’” M.L.K. v. Dep’t of Child. &
Fams., 397 So. 3d 837, 838 (Fla. 1st DCA 2024) (quoting S.D. v.
Dep’t of Child. & Fams., 208 So. 3d 320, 322 (Fla. 3d DCA 2017))
petition for cert. filed, No. 24-7481, (U.S. Mar. 3, 2025). We face no
similar impediment in this appeal, as Appellant challenges a
criminal contempt order.


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Constitutions.” City of Tallahassee v. Fla. Police Benevolent Ass’n,
Inc., 375 So. 3d 178, 186 (Fla. 2023).

     While the United States Supreme Court has long recognized
a preference for a defendant to confront an adverse witness
face-to-face, this form of confrontation is not absolute. Maryland v.
Craig, 497 U.S. 836, 849–50 (1990). We find that Court’s decision
in Craig informative as to the scope and limitation of the
Confrontation Clause here. In Craig, the Court upheld Maryland’s
statutory procedure in which a child witness testified against a
defendant at trial, outside the defendant’s physical presence, by
one-way closed circuit television. Id. at 851–52. While the Court
acknowledged that the Sixth Amendment’s Confrontation Clause
reflects a preference for face-to-face confrontation at trial, it
nonetheless concluded that this preference must occasionally give
way to public policy considerations and the necessities of the case.
Id. at 849–50. As the Court found, although Maryland’s statutory
procedure prevented a child witness from seeing the defendant as
he testified, the procedure preserved all the other elements of
confrontation: “The child witness must be competent to testify and
must testify under oath; the defendant retains full opportunity for
contemporaneous cross-examination; and the judge, jury, and
defendant are able to view (albeit by video monitor) the demeanor
(and body) of the witness as he or she testifies.” Id. at 851 (emphasis
added). Thus, the Court concluded, the use of the one-way closed
circuit television procedure, where necessary, to further an
important State interest (i.e., Maryland’s interest in the physical
and psychological well-being of child abuse victims) did not
impinge upon the Sixth Amendment’s Confrontation Clause. Id. at
852–53.

     We note that the Florida Legislature has enacted statutory
guidelines for audio-video communication technology in
proceedings involving minor victims or witnesses. Although
section 92.54, Florida Statutes, authorizes remote testimony in
certain circumstances, it still requires that a defendant retain the
ability to observe and hear the testimony. Under the statute, when
remote testimony is appropriate:

    [T]he court may require the defendant to view the
    testimony from the courtroom. In such a case, the court


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    shall permit the defendant to observe and hear the
    testimony of the victim or witness, but must ensure that
    the victim or witness cannot hear or see the defendant.
    The defendant’s right to assistance of counsel, which
    includes the right to immediate and direct
    communication         with      counsel       conducting
    cross-examination, must be protected and, upon the
    defendant’s request, such communication must be
    provided by any appropriate electronic method.

§ 92.54(4), Fla. Stat. (2022) (emphasis added).

     On the record before us, the trial court’s decision to remove
Appellant did not conform to the standards in Craig or adhere to
the procedure prescribed under section 92.54. The trial court
ordered Appellant out of the courtroom before the testimony of the
minor witness. (“I’ll wait until [Appellant] leaves and then we’ll get
started.”). Appellant was not permitted to observe or hear the
testimony of the minor witness. (“I did go out and speak to
[Appellant]. With him not having heard any of the testimony,
basically it’s little to no help to talk to him.”). The record is also
clear that Appellant was deprived of his right to immediate and
direct communication with his counsel during the testimony.
(“Judge, I’d ask for a moment to step out to try and talk to
[Appellant]. It’s going to be kind of limited.”).

     Florida courts “have repeatedly recognized the critical
importance of a defendant’s ‘constitutional right to confront and
cross-examine witnesses against him.’” Conner v. State, 748 So. 2d
950, 955 (Fla. 1999) (quoting Brown v. State, 471 So. 2d 6, 7 (Fla.
1985)). While remote witness testimony is permitted in certain
situations (under Craig and section 92.54, Florida Statutes), the
defendant must still be able to observe the witness’s testimony and
communicate freely with counsel. Removing Appellant from the
courtroom and providing him no means to observe and hear the
testimony or have direct and immediate contact with his attorney
during that testimony denied Appellant the ability to meaningfully
confront the adverse witness in his criminal contempt proceeding.




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                                III.

     We conclude that the trial court’s removal of Appellant from
the courtroom deprived Appellant of his confrontation rights. 2 We
reverse the trial court’s contempt order and remand.

    REVERSED and REMANDED.

KELSEY, J., concurs; WINOKUR, J., concurs with opinion.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

WINOKUR, J., concurring.

     I concur in the majority’s decision to reverse. But because the
opinion relies so heavily on Maryland v. Craig, 497 U.S. 836
(1990), I write separately to address the tension between Craig and
Crawford v. Washington, 541 U.S. 36 (2004). See, e.g., Finley v.
State, 707 S.W.3d 320, 330 n.21 (Tex. Crim. App. 2024) (referring
to the “icy relationship” between Craig and Crawford).

     In Craig, the Supreme Court “held that a child victim in a
child-abuse prosecution could testify outside the presence of the
defendant without violating the Confrontation Clause when a
proper finding of emotional necessity was made, and the child

    2  Of course, the Sixth Amendment’s privilege to confront
adverse witnesses remains contingent upon the courtroom
behavior of the defendant. See Illinois v. Allen, 397 U.S. 337, 343
(1970) (“[A] defendant can lose his right to be present at trial if,
after he has been warned by the judge that he will be removed if
he continues his disruptive behavior, he nevertheless insists on
conducting himself in a manner so disorderly, disruptive, and
disrespectful of the court that his trial cannot be carried on with
him in the courtroom.”).


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testified under oath, underwent a full cross-examination, and was
observable by the judge, jury, and defendant.” H.M.M. by Next
Friend C.M. v. J.S., No. 367586, 2024 WL 4819887, at *5 (Mich.
Ct. App. Nov. 18, 2024) (citing Craig, 497 U.S. at 857–58). Craig
relied in part on the Court’s prior decision in Ohio v. Roberts, 448
U.S. 56 (1980). See, e.g., Craig, 497 U.S. at 846–47. Roberts had
held that the “indicia of reliability” of certain hearsay evidence was
important in determining whether hearsay evidence was
admissible under the Confrontation Clause:

    [W]hen a hearsay declarant is not present for cross-
    examination at trial, the Confrontation Clause normally
    requires a showing that he is unavailable. Even then, his
    statement is admissible only if it bears adequate “indicia
    of reliability.” Reliability can be inferred without more in
    a case where the evidence falls within a firmly rooted
    hearsay exception. In other cases, the evidence must be
    excluded, at least absent a showing of particularized
    guarantees of trustworthiness.

Roberts, 448 U.S. at 66, overruled in part by Crawford, 541 U.S. at
68. Put another way, “the [Roberts] Court held that the
Confrontation Clause is satisfied even if a hearsay declarant is not
present for cross-examination at trial as long as the statement
bears adequate ‘indicia of reliability.’” People v. Jemison, 952
N.W.2d 394, 395 (Mich. 2020).

     In his dissenting opinion in Craig, Justice Scalia criticized the
majority’s reliance on Roberts. See Craig, 497 U.S. at 863 (Scalia,
J., dissenting). Justice Scalia noted that “[t]he purpose of
enshrining [the Confrontation Clause] in the Constitution was to
assure that none of the many policy interests from time to time
pursued by statutory law could overcome a defendant’s right to
face his or her accusers in court.” Id. at 861 (Scalia, J., dissenting).
Hence, a judicial determination regarding the “reliability of
evidence,” according to Justice Scalia, is no substitute for what the
Confrontation Clause “explicitly provides for—‘face-to-face’
confrontation[.]” Id. at 862 (Scalia, J., dissenting).

    In Crawford, Justice Scalia authored the Court’s majority
opinion, which overruled Roberts and held that “[w]here


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testimonial statements are at issue, the only indicium of reliability
sufficient to satisfy constitutional demands is the one the
Constitution actually prescribes: confrontation.” Crawford, 541
U.S. at 68–69; see also Blanton v. State, 978 So. 2d 149, 154 (Fla.
2008) (“In Crawford, the Supreme Court dispensed with the
Roberts reliability analysis for testimonial hearsay statements[.]”).

     Although Crawford overruled Roberts, it did not address the
continued viability of Craig, in spite of its reliance on Roberts. See
Finley, 707 S.W.3d at 330 n.21 (“The United States Supreme Court
has not shed light on whether Crawford implicitly overruled Craig,
or whether the two cases coexist in that Craig applies to in-person
testimony and Crawford applies to out-of-court testimonial
statements.”); see also Lopez v. State, 397 So. 3d 1035, 1040 (Fla.
4th DCA 2024) (Artau, J., concurring specially) (“In overruling
Roberts, the Supreme Court, however, did not expressly address
Craig.”).

     Nevertheless, Crawford overruled Roberts—the foundation
for the decision in Craig. See Faughn v. Commonwealth, 694
S.W.3d 339, 346 (Ky. 2024) (expressing “skepticism as to the
continuing validity of the U.S. Supreme Court's opinion in
Maryland v. Craig in light of the demise of the balancing test set
forth in Ohio v. Roberts, which served as the analytical foundation
of Craig.”). See also State v. Contreras, 979 So. 2d 896, 906 (Fla.
2008) (discussing the continued viability of Craig in light of
Crawford); Jemison, 952 N.W.2d at 395–96 (noting that Crawford
“overruled Roberts and shifted from a reliability focus to a bright-
line rule requiring a face-to-face encounter for testimonial
evidence” and that “Crawford did not specifically overrule Craig,
but it took out its legs.”); Ex parte Bragg, 390 So. 3d 594, 595 (Ala.
2023) (Parker, C.J., concurring specially) (discussing the
“incompatibility” of Craig’s “balancing approach” with Crawford’s
“textual-historical approach”).

     That said, we do not, today, need to determine whether
Crawford implicitly overruled Craig. Nor do we need to decide
whether Crawford applies to out-of-court testimonial statements
with Craig still applying to in-person testimony. Because the trial
court removed Appellant from the courtroom during the testimony
of an adverse witness (without any finding of misconduct), the trial


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court violated Appellant’s constitutional right to confront the
witnesses against him. So, even if Craig survives Crawford intact,
the trial court committed reversible error.

                 _____________________________


Jessica J. Yeary, Public Defender, and Justin Foster Karpf,
Assistant Public Defender, Tallahassee, for Appellant.

Sarah J. Rumph, Appellate Counsel, Department of Children and
Families, Tallahassee; Sara E. Goldfarb, Statewide Director of
Appeals, and Justin R. Ravelo, Statewide Guardian ad Litem
Office, Tallahassee, for Appellee.




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