FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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Nos. 1D15-5339
1D15-5340
(Consolidated for disposition)
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WILLIAM LEE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Duval County.
Russell Healey, Judge.
December 27, 2018
KELSEY, J.
We affirm William Lee’s convictions and sentences for two
counts of attempted first-degree murder, one count of shooting or
throwing deadly missiles, and tampering with evidence. We write
only to address the unpreserved argument that the trial judge
departed from the role of a neutral arbiter and thereby vitiated the
fairness of the trial.
Judges’ Involvement At Trial
It has long been the law that “Every litigant, including the
State in criminal cases, is entitled to nothing less than the cold
neutrality of an impartial judge.” State ex rel. Mickle v. Rowe, 131
So. 331, 332 (Fla. 1930) (holding judge should have granted motion
to disqualify him in a case involving a bank in which he had
deposited 5 or 6 dollars before the bank closed). In the specific
context of conducting court proceedings, judges have the statutory
obligation to control the admission of evidence. § 90.104(2), Fla.
Stat. (2015) (requiring judges to “conduct proceedings, to the
maximum extent practicable, in such a manner as to prevent
inadmissible evidence from being suggested to the jury by any
means.”). A judge may question witnesses to clarify issues, as long
as the questions do not demonstrate a departure from the judge’s
neutral position. Williams v. State, 143 So. 2d 484, 488 (Fla. 1962);
see § 90.106, Fla. Stat. (2015) (“A judge may not sum up the
evidence or comment to the jury upon the weight of the evidence,
the credibility of the witnesses, or the guilt of the accused.”).
Judges are warned to “be cautious in cutting off counsel’s
questions and interjecting [their] own questions to a witness.”
Grant v. State, 764 So. 2d 804, 806 (Fla. 2d DCA 2000). A judge
should not only be impartial, but should “leave the impression of
impartiality on all those who attend court.” Sparks v. State, 740
So. 2d 33, 35–36 (Fla. 1st DCA 1999). A judge who assumes the
role of prosecutor deprives the defendant of a fair and impartial
tribunal, which, as a deprivation of due process, constitutes
fundamental error. Cagle v. State, 821 So. 2d 443, 444 (Fla. 2d DCA
2002).
However, “it is clear that not every act or comment that might
be interpreted as demonstrating less than neutrality on the part of
the judge will be deemed fundamental error.” Mathew v. State, 837
So. 2d 1167, 1170 (Fla. 4th DCA 2003); see also Jones v. State, 385
So. 2d 132, 134 (Fla. 4th DCA 1980) (“Initially, we point out there
are occasions where there is no error in rebuking defense counsel
in the presence of the jury.”).
Facts Of This Case
The State theorized that this shooting involved a love triangle
gone awry. Lee shot into an SUV driven by another man, and in
which rode Lee’s own sometime girlfriend. During the trial, the
judge made several comments about defense counsel’s questions
and the prosecutor’s failure to object to them. The judge also asked
several questions of one of the State’s witnesses, a detective, when
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the witness remained confused about defense counsel’s questions
despite several attempts at reframing them.
First, defense counsel asked the girlfriend if the driver was
upset that she preferred to be with Lee because Lee could better
provide for her. The judge called a sidebar and told defense counsel
that even though the State was not objecting, he was not going to
allow counsel to continue asking the witness what was in the
driver’s mind.
Next, defense counsel asked the driver if he told the girlfriend
the two of them were done because she had at one point chosen
Lee, and the court called another sidebar. The judge told the
prosecutor he was sitting like a “bump on a log” while defense
counsel was asking irrelevant questions about a relationship
between the two victims. The judge told defense counsel that she
had elicited “a gracious plenty” about the victims’ relationship, so
she could ask a couple more questions, then move on.
Defense counsel also asked the driver several questions about
his driving the SUV away from the shooting that night and totaling
it two days later. The State objected when defense counsel then
asked the driver to confirm that he did not make an insurance
claim after he totaled the vehicle. This time the judge called a
sidebar and more sternly chastised defense counsel for asking
“completely immaterial” questions. He also shamed the State for
“sitting on your ass yet again” and letting defense counsel do
whatever she wanted. At the conclusion of the sidebar, defense
counsel moved on to asking the driver about the shooting itself.
Later, defense counsel was questioning the detective about a
surveillance video he copied from the apartment complex’s
surveillance system. Specifically, counsel questioned the detective
about when he realized the copy was not timestamped, but he was
confused by the questions, so the State objected to the form of the
question. After defense counsel made a few attempts to clarify the
questions without success, the judge “chime[d] in” to ask some
questions of his own. He had the witness clarify the timeline of
when he discovered and then copied the footage. Finally, he asked
the detective when he realized the copy did not have a running
time stamp on it.
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Analysis
Lee argues that the judge’s actions constituted fundamental
error because they gave the impression that the judge was not
acting as an impartial arbiter. See Sparks, 740 So. 2d at 35–36. We
disagree. Our review of the record leads us to conclude that the
trial judge did not violate the governing legal principles. Rather,
he assisted both sides in clarifying issues and excluding
inadmissible evidence. Further, and significantly, Lee has failed to
demonstrate fundamental error.
These facts are unlike those in other cases holding that trial
courts acted improperly. In Cagle, the court reversed a revocation
order where the trial court essentially took over the prosecutor’s
job of calling and questioning witnesses. 821 So. 2d at 444; see also
Lang v. State, 228 So. 3d 153, 155 (Fla. 4th DCA 2017) (reversing
a revocation order where the judge gathered his own evidence and
used it to make crucial credibility determinations). In Evans v.
State, 831 So. 2d 808, 811 (Fla. 4th DCA 2002), the court reversed
a defendant’s conviction where the trial judge suggested to the
State that it should inquire into the immigration status of a
witness after that witness declared she was a law-abiding citizen.
Similarly, in Lee v. State, 789 So. 2d 1105, 1107 (Fla. 4th DCA
2001), the court reversed a conviction where the judge prompted
the State to have the witness identify a scar on the defendant’s
arm for the jury. Lastly, in Sparks, this Court reversed a conviction
where the judge pointed the prosecutor to evidence he could use to
question the credibility of the defendant after the prosecutor had
concluded his questioning of the defendant. 740 So. 2d at 37. We
held that the trial judge fundamentally erred when he assumed
the role of prosecutor. Id. at 36–37.
Here, the judge demonstrated growing frustration with
defense counsel’s questioning of witnesses, and was equally
frustrated with the prosecutor’s failure to object to inadmissible
evidence. However, unlike Cagle, Evans, Lee, Lang, and Sparks,
the judge here did not take over prosecuting the State’s case, nor
did he prompt the prosecutor to enter evidence or cross-examine a
witness with certain questions. He instead chastised both
attorneys for allowing the jury to hear inadmissible evidence. The
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judge had a duty to keep the jury from hearing this inadmissible
evidence, and his actions were directed at carrying out that duty.
Carrying out that judicial duty inherently favors neither party.
The fact that Lee’s counsel happened to be the lawyer repeatedly
attempting to elicit irrelevant testimony from witnesses does not
make the judge’s actions unfair to Lee.
Even if we interpret the judge’s comments as favoring the
prosecution, his actions do not rise to the level of fundamental
error. See Grant, 764 So. 2d at 805–06. In Grant, the trial judge
became upset with defense counsel’s question of a witness and
butted in to ask the witness questions. Id. The judge also curtailed
the defense’s examination of the witness and questioned the
relevancy of some of the testimony defense counsel elicited from
that witness. Id. at 806. The court distinguished the case from
Sparks, saying that while trial judges should “be cautious in
cutting off counsel’s questions and interjecting [their] own
questions to a witness,” the judge’s actions did not constitute
fundamental error. Id. at 805–06. The specially concurring judge
in Grant aptly summarized the principles involved and reaffirmed
the propriety of judicial involvement as needed to “preclude the
admission of evidence in order to curb litigation abuses; to
reasonably manage and control the conduct of the litigation and its
participants; to control the mode and interrogation of witnesses;
and, to remedy different forms of litigation abuse.” Id. at 806–07
(Salcines, J., specially concurring). Consistent with performing
these duties, a trial judge need not be “an iceberg only to be heard
at calving.” Id. Where, as in this case, the judge never assumed the
role of prosecutor, and performed appropriate management and
gate-keeping functions, almost entirely at sidebar, his actions do
not constitute fundamental error.
Similarly in Mathew, the trial judge repeatedly chastised
defense counsel in front of the jury. 837 So. 2d at 1169. He said, in
front of the jury, that he believed defense counsel’s actions were
improper, and refused to discuss the issues at sidebar. Id. He said
the trial was “starting to sound like Jerry Springer.” Id. The court
held that, although the comments at issue were improper, they did
not rise to the level of fundamental error. The Mathew court
contrasted its facts with those in another case, Jones v. State, 385
So. 2d 132 (Fla. 4th DCA 1980). In Jones, the trial court, in the
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presence of the jury, scolded the defense attorney for arguing with
his own witness. Id. at 133. The judge then said, “Just a minute.
Don’t interrupt me. The next time you do that it’s going to cost you.
You understand? . . . Get your foot off the Bench. Stand up there
like you know what you’re doing.” Id. The judge then interrupted
defense counsel’s question to state that he thought counsel was
being misleading. Id. It was important to the Jones court that the
inappropriate attacks on counsel were made in open court. Id. at
133–34. In contrast here, the judge’s attempts to curtail
questioning about irrelevant matters were proper and were done
at sidebar where, although the jury could see that a sidebar was
occurring, the substance of the discussion was not aired in open
court. Both the judicial function being performed, and the manner
in which it was carried out, differed in this case. This case falls far
short of the facts in Jones, and aligns with Mathew and other cases
involving permissible judicial involvement not amounting to
fundamental error. Here, the judge stepped in to exclude
inadmissible evidence and to facilitate clarity for a witness who
was clearly confused by the way questions were phrased. We find
no fundamental error.
Conclusion
In sum, the judge did not assume the role of prosecutor, and
his comments were directed at fulfilling his duty as a neutral
arbiter to prevent inadmissible evidence from being presented to
the jury. For these reasons, the judge’s actions did not vitiate the
fairness of Lee’s trial. We note, however, that trial judges who
become involved in directing lawyers and questioning witnesses
run the risk of having their actions unnecessarily become the focus
of the appeal. We reject Lee’s other arguments without comment
and affirm his judgment and sentence.
WETHERELL, J., concurs; MAKAR, J., dissents with opinion.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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MAKAR, J., dissenting.
During a timeout in the Big Game, a player coming off the
field was berated for performing poorly, scolded for being “a bump
on a log.” Another timeout was called and the player was rebuked
for “sitting on your ass yet again.” The rant continued: “I don’t
know what you guys are doing over there. I’m not sure you need to
be here, just let [the other team] do whatever [it] wants.” A
harangue like this from an irate coach is unremarkable; after all,
his job is to win the game. What would be startling is if the
haranguer was the game’s referee, the person on the field whose
job is to ensure a fair and impartial contest for the players and
onlookers alike.
Yet that is what happened in the trial of William Lee. As
defense counsel questioned a prosecution witness, the trial judge
unilaterally initiated a series of increasingly antagonistic sidebars,
punctuated by the quotes above, during which he criticized defense
counsel about what he believed the theory of the case was and how
her evidence didn’t make sense to him (“Somebody clue me in. I’m
obviously missing it.”). Without a State objection, the trial judge
called sidebars, lectured defense counsel, and restricted defense
presentations, chiding the prosecutor for his lack of vigor (“shame
on the State for sitting on your ass yet again”) and failure to protest
(“I’ve let umpteen things go by because nobody is [objecting]”). In
effect, the judge performed real-time CLE timeouts for the
prosecution’s benefit during a live criminal trial. Chastine v.
Broome, 629 So. 2d 293, 295 (Fla. 4th DCA 1993) (“Obviously, the
trial judge serves as the neutral arbiter in the proceedings and
must not enter the fray by giving ‘tips’ to either side.”).
The first sidebar began with the judge saying, “[m]aybe the
State is not going to object” before he explained and ruled that he
was “not going to allow” the defense’s line of questioning. The
sidebars continued, each prompted by the trial judge’s increasing
displeasure with the defense’s theory and evidence, openly
reflecting his discontent with what he perceived as a slow-witted
prosecutor who wasn’t objecting enough. At one point, the trial
judge—again unilaterally and without a State objection—told
defense counsel to stop her line of questioning and threatened
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unspecified sanctions if she did not (“If it happens again, we’re
going to have a different conversation.”). The sidebars played out
in front of the jurors, who did not hear the discussions, but could
reasonably infer the judge’s displeasure. See Sparks v. State, 740
So. 2d 33, 37 (Fla. 1st DCA, 1999) (jury witnessed sidebar and
could reasonably infer that subsequent questioning was based on
new information obtained from judge).
A lack of neutrality arose in other respects. For instance, the
trial judge interrupted defense counsel’s cross-examination of an
important witness, actively questioning him (eighteen questions
and almost three pages of the trial transcript), and elicited
testimony that was favorable to the prosecution (despite the
prosecution’s failure to do so on direct examination), before
congratulating himself in front of the jury (Judge: “Did that help?”
Jurors: “Yes. Thank You.” Judge: “Sometimes I miss being a
lawyer, you know. But, anyway, glad I could help, because it
helped me too.”). See Seago v. State, 23 So. 3d 1269 (Fla. 2d DCA
2010) (Trial judge’s sua sponte inquiry as to whether State’s
forgetful witness had been deposed violated judicial duty of
neutrality resulting in prejudicial error.); see generally Williams v.
State, 143 So. 2d 484, 488 (Fla. 1962) (Trial judge “may ask
questions to clarify the issues but he should not lean to the
prosection [sic] or defense lest it appear that his neutrality is
departing from center.”).
The trial judge also referred to the “expert fella” for the
prosecution who had procured a surveillance videotape (which was
the focus of the cross-examination), thereby placing the court’s
imprimatur on a non-expert and a key piece of the State’s evidence
that the defense sought to rebut as to its accuracy and reliability.
Johnson v. State, 114 So. 3d 1012, 1016-17 (Fla. 5th DCA 2012)
(“While a judge may take the initiative to clear up uncertainties in
the issues of a case, the law is clear, especially in a criminal
prosecution, that the trial court should take great care not to
intimate to the jury the court’s opinion as to the weight, character,
or credibility of any evidence adduced.”); § 90.106, Fla. Stat. (“A
judge may not sum up the evidence or comment to the jury upon
the weight of evidence [or] the credibility of witnesses . . . .”).
8
Lee’s defense counsel did not object to the trial court’s
behavior during the proceedings, but impartiality of a trial judge
constitutes fundamental error that can be raised for the first time
on appeal, which Lee has done. Sparks, 740 So. 2d at 35.
Fundamental error arises in the rare cases where “the interests of
justice present a compelling demand for its application,” such as
where a “trial judge’s errors, taken cumulatively,” render a trial
“fundamentally unfair as to amount to a denial of due process.”
Grigg v. State, 230 So. 3d 943, 947 (Fla. 1st DCA 2017) (remanding
for new trial due to trial judge’s improper and prejudicial colloquy
with jurors during voir dire).
On this record, Lee has shown fundamental error under our
precedent, particularly Sparks. In that case, this Court held that
a single sidebar at which the trial judge referred to an affidavit
that the prosecution then used to impeach a witness constituted
fundamental error necessitating a new trial. 740 So. 2d at 37. This
was so even though the jury could see—but wasn’t privy to—the
sidebar discussion; and the trial judge merely pointed out the
affidavit, making “[n]o other representations, suggestions, inquiry,
or statements” on the matter. Id. at 34. It was enough that the
“jury could have reasonably inferred that the prosecutor's new
information used during the resumed questioning of the defendant
had been obtained from the judge.” Id. at 37. Sparks and related
cases establish that judicial neutrality is required whether the
trial judge is in the jury’s presence or outside the jury’s earshot at
sidebar: a “duty of neutrality is especially important when the trial
judge is in the presence of a jury,” but it is equally true that “a trial
court can commit error—even fundamental error—outside the
presence of the jury by taking actions that obviously favor one side
or the other.” J.L.D. v. State, 4 So. 3d 24, 26 (Fla. 2d DCA 2009);
see Sparks, 740 So. 2d at 37 (jury witnessed prosecutor’s
resumption of questioning after sidebar where judge pointed out
existence of affidavit).
Sparks involved a single judicial act at sidebar outside the
jury’s presence. In contrast, both strains of judicial prejudice—i.e.,
conduct in and outside the jury’s presence—are present here, the
confluence of which crossed the line into fundamental error that
negates the “requirement of judicial impartiality,” which “is at the
core of our system of criminal justice.” McFadden v. State, 732 So.
9
2d 1180, 1184 (Fla. 4th DCA 1999); see Smith v. State, 205 So. 3d
820, 823 (Fla. 2d DCA 2016) (Trial court’s departure from its role
of neutral arbiter amounted to fundamental error.); Johnson, 114
So. 3d at 1017-18 (Trial court’s “conduct vitiated the validity of the
proceedings,” amounting to fundamental error “that undermines
the confidence in the trial outcome and goes to the very foundation
of a case” or denies due process.); Sparks, 740 So. 2d at 37 (Trial
judge “assumed the role of prosecutor . . . [which] constitutes error”
that was not harmless.). 1
Rather than an impartial referee as to both teams, the trial
judge assisted the prosecution, undercut the defense, and became
an active questioner during the trial solely to Lee’s detriment; the
saga played out in sidebars and before the jury itself. Unlike
Sparks and cases where a trial judge makes a single interruption
of cross-examination without a party’s objection, see Grant v. State,
764 So. 2d 804 (Fla. 2d DCA 2000), 2 this case involves multiple
1 Our Court should neither rely on nor adopt Mathew v. State,
837 So. 2d 1167, 1169 (Fla. 4th DCA 2003), which found no
fundamental error on the facts of that case despite the trial judge:
(a) “repeatedly, and without objection, comment[ing] that he
believed defense counsel’s actions were improper,” (b) “without
objection, interrupt[ing] defense counsel’s closing argument to
inform defense counsel that the court believed defense’s argument
was ‘inappropriate,’” (c) “attempt[ing] to tell the prosecutor, in
detail, what questions to ask” to satisfy a hearsay exception, (d)
“refus[ing] to allow defense counsel to have a side bar as to
objections,” and (e) “ma[king] a reference in front of the jury that
the trial was ‘starting to sound like Jerry Springer.’” Surely this
degree of departure from neutrality ought not to be the standard
in our District.
2 The majority in Grant explicitly rejected the special
concurrence of Judge Salcines in that case, concluding that the
trial court’s conduct in interrupting cross-examination was
“clearly improper.” 764 So. 2d at 806 (“While the concurring
opinion concludes that the trial judge prevented the introduction
of irrelevant evidence and curtailed the introduction of repetitious
and confusing evidence, our review of the record does not permit
us to join in that assessment of the trial judge’s activity.”).
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interruptions plus active questioning and commentary by the trial
judge. The judicial duty is not to be an active participant in this
manner or to this degree; even the State concedes that the “trial
judge’s involvement in the case was not best practice.”
The trial judge may have had benign motives, but the
appearance of neutrality is important, such that even
unintentional conduct can compromise a trial. See Lyles v. State,
742 So. 2d 842, 843 (Fla. 2d DCA 1999) (“Whether intentional or
not, the trial judge gave the appearance of partiality by taking sua
sponte actions which benefitted the State.”). And it is principally
the trial lawyers’ duty—not the judge’s—to keep a jury from
hearing inadmissible evidence. J.B. v. State, 705 So. 2d 1376, 1378
(Fla. 1998) (“In the absence of a proper objection, a trial judge does
not have an obligation to prohibit inadmissible evidence from
being considered by the fact finder.”); CHARLES W. EHRHARDT,
FLORIDA EVIDENCE § 104.1 (2018) (“Under our adversary system,
the burden is on counsel to make a specific objection prior to a
witness answering a question.”).
It has been long-recognized that the “single most dominant
factor in the administration of a trial is the conduct of the judge;
the manner in which he exercises control over such proceedings is
reflected through his remarks and comments.” Hunter v. State, 314
So. 2d 174, 174 (Fla. 4th DCA 1975). Trial judges face persistent
challenges in courtroom management, “the difficulty of which is
too often taken for granted.” Id. In administering justice, a “trial
judge must be equal to the task; and should endeavor to avoid the
type of comment or remark that might result in inhibiting counsel
from giving full representation to his client or that might result in
bringing counsel into disfavor before the jury at the expense of the
client.” Id. at 175. Here, the sidebars, judicial examination, and
commentary might not individually tip the scales, but their
collective and cumulative effects “require relief because [Lee’s]
trial was rendered ‘fundamentally unfair as to amount to a denial
of due process.’” Grigg, 230 So. 3d at 947 (citations omitted); see
also Love v. State, 569 So. 2d 807, 810 (Fla. 1st DCA 1990) (“A
judge must not only be impartial, he must leave the impression of
impartiality upon all those who attend court.”).
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_____________________________
Susanne K. Sichta, Rick A. Sichta, and Joseph Hamrick of The
Sichta Firm, LLC, Jacksonville, for Appellant.
Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant
Attorney General, Tallahassee, for Appellee.
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