FERNANDO CASTANO

v.

STATE OF FLORIDA

Third District Court of Appeal State of Florida

Opinion filed May¹⁴, 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.

2

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

DEFENSE: Objection, shifting the burden.

THE COURT: Overruled.

4

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

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 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).

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.

(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.

4 At oral argument, the State conceded that the third person does not need to be physically present to be included in the communication.

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).

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.

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

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

Reversed in part, affirmed in part.