Joshua Davis v. State of Florida ( 2022 )

Supreme Court of Florida
____________
No. SC20-1282
____________
JOSHUA DAVIS,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
September 8, 2022
COURIEL, J.
We have for review the decision in Davis v. State, 311 So. 3d
927 (Fla. 2d DCA 2020), in which the Second District Court of
Appeal certified the following question of great public importance:
WHEN A DEFENDANT IN A CRIMINAL CASE ASSERTS
IN AN APPEAL FROM A JUDGMENT AND SENTENCE
THAT THE TRIAL COURT ERRONEOUSLY DENIED A
LEGALLY SUFFICIENT MOTION TO DISQUALIFY THE
TRIAL JUDGE FOR ALLEGED BIAS OR PREJUDICE
UNDER SECTION 38.10, FLORIDA STATUTES (2015),
AND FLORIDA RULE OF JUDICIAL ADMINISTRATION
2.330(D)(1), SHOULD AN APPELLATE COURT REVIEW
THE ERRONEOUS DENIAL FOR HARMLESS ERROR
AND, IF SO, WHAT HARMLESS ERROR TEST SHOULD
THE APPELLATE COURT APPLY?
We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. The answer to
the certified question is yes. We find that the Second District was
correct to apply the harmless error standard. However, the proper
test is that set forth in State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla.
1986). And applying that test here, we find that harmful error
occurred, so we quash the decision of the Second District to the
extent that it concludes otherwise, and remand for further
proceedings consistent with this decision.
I
On April 24, 2012, Joshua Davis shot three coworkers who
were visiting his home, killing two and severely wounding the third.
At his trial, the State introduced no evidence regarding a motive for
the shootings. Rather, “[t]he State’s theory was that Mr. Davis
intentionally shot the three men while under the influence of
marijuana,” which he had smoked with two of them. Davis, 311 So.
3d at 931-32. “[A]ccording to one of the State’s experts, [Davis was]
in a state of psychosis from having used the drug.” Id. Davis’s
seven-year-old daughter was at home and witnessed the shootings.
A grand jury indicted Davis on two counts of first-degree murder,
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one count of attempted first-degree murder, and one count of child
abuse on May 10, 2012.
The case was originally scheduled for trial in May 2015 before
Judge Donald Jacobsen, who in the intervening years ruled on
several pretrial matters. The trial was continued and, eventually,
Judge Jacobsen announced that he expected to leave the capital
felony division. His replacement would be Judge Jalal Harb.
Davis moved for Judge Jacobsen to remain on the case
because, aside from Judge Jacobsen’s knowledge of the facts and
his having ruled on many pretrial motions, Judge Harb had been a
prosecutor in the homicide division of the state attorney’s office
from August 2012 to March 2014, while Davis’s case was pending.
The State opposed and moved to strike Davis’s motion, arguing that
Judge Harb had no involvement in the prosecution of Davis’s case,
and that his having worked in the same division did not, without
more, support the inference that he was biased.
Judge Jacobsen presided at a hearing on these matters.
Judge Harb attended as an observer. The prosecutor argued that
Judge Harb could easily come up to speed on the case and
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explained the following about Judge Harb’s work at the state
attorney’s office:
Judge, I would like to put on the record that I did, when I
received the defense motion, pull this file, as well as any
homicide committee notes that took place while Judge
Harb was in our division. I pulled this file and every
attorney note that’s in this case. Judge Harb’s not
touched this file. He never attended a homicide
committee meeting regarding this case. Other than the
fact that this was pending in the division when he was an
attorney in that division, he’s had no contact with this
file.
Davis, 311 So. 3d at 931. Judge Jacobsen denied Davis’s motion
but clarified that this did not prejudice Davis’s right to file a motion
to disqualify Judge Harb.
And indeed, when Judge Harb took over the capital felony
division in July 2015, Davis moved to disqualify him under section
38.10 of the Florida Statutes and Florida Rule of Judicial
Administration 2.330(e)(1). In his supporting affidavit, Davis listed
four reasons he feared he would not receive a fair trial:
(1) Judge Harb was an assistant state attorney in the
homicide division while this case was pending and
worked alongside the prosecutor in that division handling
his case,
(2) [T]he homicide division functioned as a single unit with
decisions being made not by individual prosecutors but
rather by committee as a unified division,
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(3) [T]he State’s argument in opposition to his motion for
Judge Jacobsen to remain on the case was both
strenuous and based on factual research about Judge
Harb that the judge could not consider in ruling on a
motion to disqualify, and
(4) Judge Harb was present at the hearing on the motion for
Judge Jacobsen to remain on the case.
Davis, 311 So. 3d at 931. Judge Harb denied the motion as legally
insufficient. Davis did not file a petition for a writ of prohibition
seeking relief from that decision.
The case was tried in October 2016. The State’s theory was
that Davis’s use of marijuana left him in a state of psychosis, but
that he nonetheless intentionally shot the three victims. Davis did
not deny that he smoked marijuana, nor did he contest that he shot
the three men in the presence of his daughter. Instead, Davis
argued that the shootings were justified, as his friends were acting
strangely after reentering his house. Davis also presented an
alternative defense of insanity based on expert testimony that he
suffered from mental infirmity, which manifested itself in paranoid
beliefs and behavior. The State countered this theory with expert
testimony on drug-related paranoia.
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The jury found Davis guilty of two counts of the lesser
included offense of second-degree murder—one for each of the two
victims who were killed—guilty of attempted first-degree murder
with respect to the victim who survived, and guilty of child abuse.
Davis moved for a new trial, arguing, among other things, that
Judge Harb “showed bias in his rulings toward” the State. Davis
also identified a specific ruling of Judge Jacobsen’s that Judge Harb
reversed: Davis initially sought to conduct individual voir dire with
jury panelists about the defense of insanity; whereas Judge
Jacobsen had granted this request in a pretrial ruling, Judge Harb
ruled that such inquiry would be allowed only if an individual juror
asked to speak privately about the matter. Judge Harb denied the
motion for a new trial. The court sentenced Davis to three
concurrent life sentences for the murder counts, each with a
twenty-five-year minimum mandatory sentence based on the use of
a firearm, and a concurrent five-year sentence for child abuse.
On appeal, Davis challenged each of his three convictions,
arguing primarily that “his judgment and sentences should be
reversed and the case remanded for a new trial because Judge Harb
wrongly denied his motion for disqualification.” Davis, 311 So. 3d
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at 932. Davis “abandoned any appellate issue concerning the
denial of the motion for new trial in which the allegation of actual
bias was made.” Id. The question before the Second District was
whether “the allegations of the disqualification motion Judge Harb
denied were legally sufficient to show a reasonable fear that [Davis]
would not receive a fair trial and thus . . . require that Judge Harb
step off the case.” Id.
The Second District found that Davis’s motion was legally
sufficient and should have been granted. Id. at 933. Relying on our
decision in Reed v. State, 259 So. 3d 718 (Fla. 2018), which also
sought disqualification of a trial judge who had previously been a
prosecutor in a capital case unit, 1 the district court explained:
1. There, as here, the judge had not been the prosecutor
assigned to the defendant’s case, but members of the capital unit
“had input in the decision making in each other’s cases.” Reed, 259
So. 3d at 721 (quoting defendant’s motion to disqualify). The record
here contains something absent from Reed: a prosecutor’s
representation that her search of the files revealed no evidence that
the presiding judge did in fact have any input into the defendant’s
case. However, to rule on a motion to disqualify, a trial court need
only determine the legal sufficiency of the motion and shall not pass
on the truth of the facts alleged. Cave v. State, 660 So. 2d 705,
707-08 (Fla. 1995). The prosecutor’s representation goes to
whether or not the trial judge in fact influenced the defendant’s
case, but the defendant need not have put that specific fact into
issue to state a legally sufficient basis for disqualification.
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First, Mr. Davis’s motion alleges that the State
strongly argued against Judge Jacobsen’s staying on the
case and in favor of Judge Harb’s taking it. Second,
Judge Harb was present at the hearing during which
these arguments were made. And third, the State, in the
presence of Judge Harb, disclosed the results of its
factual investigation into whether Judge Harb had
contact with the case while at the State Attorney's Office.
The State’s conduct thus (1) implied that it believed
Judge Harb was inclined to make rulings that were
favorable to the State and (2) resulted in Judge Harb
having learned factual information that the law
unambiguously forbade him from considering in deciding
the question of disqualification, when the State knew full
well that a disqualification motion would be coming if the
case was assigned to him.
Davis, 311 So. 3d at 934. In making these findings, the Second
District stressed that it did not hold that Judge Harb was in fact
biased. Id. But, the district court explained, the State’s eagerness,
taken together with the allegations of Judge Harb’s employment at
the state attorney’s office, were sufficient to give Davis a reasonable
fear that he would not receive a fair trial. Id.
Next, the Second District addressed whether Judge Harb’s
failure to grant Davis’s motion for disqualification required reversal
of Davis’s judgment and sentences. The district court noted that
every defendant “has a constitutional right to a fair trial free of
harmful error,” and that Florida courts protect that right by
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applying the harmless error test laid out in DiGuilio. Id. at 937
(emphasis removed) (quoting Johnson v. State, 53 So. 3d 1003,
1007 (Fla. 2010)). The Second District reasoned that DiGuilio’s
harmless error test—which “requires the State to show ‘beyond a
reasonable doubt that the error complained of did not contribute to
the verdict’ ”—was an “awkward fit,” and unproductive to use when
the error was not tied to the jury’s factfinding mission. Id. at 937-
38 (citing DiGuilio, 491 So. 2d at 1135). The district court
concluded that the erroneous denial of a legally sufficient
disqualification motion should be reviewed for harmless error, “with
the question being whether there is a reasonable possibility that the
error denied the defendant a fair trial before a neutral judge.” Id. at
930.
Applying this standard to Davis, the Second District held that
there was no reasonable possibility that Davis was denied his right
to a fair trial by a neutral judge. Id. at 943. It listed “[t]hree facets
of this case” which, when taken together, “convince[d] [it] that there
[was] no such reasonable possibility”: (1) Davis’s failure to seek a
writ of prohibition before trial suggested that he did not think he
would fail to receive a fair trial, (2) the record of Judge Harb’s
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rulings—some of which were favorable to the State, and some
favorable to Davis—suggested the trial was fair, and (3) the
circumstances alleged in Davis’s motion for disqualification did not
in reality pose a substantial risk that Davis would be denied a fair
trial. Id. at 943-45. The Second District then certified the question
of great public importance that we now answer.
II
The Second District determined that Davis’s motion for
disqualification was legally sufficient. We agree. The standard of
review for a trial judge’s decision on a motion to disqualify is de
novo. Gore v. State, 964 So. 2d 1257, 1268 (Fla. 2007).
“A motion to disqualify is governed substantively by section
38.10, Florida Statutes (2005), and procedurally by Florida Rule of
Judicial Administration 2.330.” Id. 2 Section 38.10 provides in
part:
2. In 2021, we renamed the Florida Rules of Judicial
Administration, which are now the “Florida Rules of General
Practice and Judicial Administration.” In re Amends. to Fla. Rules
of Jud. Admin.—2020 Regular-Cycle Report, 310 So. 3d 374, 375–76
(Fla. 2021). We apply rule 2.330 as it existed at the time of the
events at issue in this case.
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Whenever a party to any action or proceeding makes
and files an affidavit stating fear that he or she will not
receive a fair trial in the court where the suit is pending
on account of the prejudice of the judge of that court
against the applicant or in favor of the adverse party, the
judge shall proceed no further, but another judge shall
be designated in the manner prescribed by the laws of
this state for the substitution of judges for the trial of
causes in which the presiding judge is disqualified. Every
such affidavit shall state the facts and the reasons for the
belief that any such bias or prejudice exists and shall be
accompanied by a certificate of counsel of record that
such affidavit and application are made in good faith.
§ 38.10, Fla. Stat. (2015).
Rule 2.330 requires that a motion to disqualify “allege
specifically the facts and reasons upon which the movant relies as
the grounds for disqualification,” Fla. R. Jud. Admin. 2.330(c)(2)
(2008), including, but not limited to, a showing that “the party fears
that he or she will not receive a fair trial or hearing because of
specifically described prejudice or bias of the judge.” Fla. R. Jud.
Admin. 2.330(d)(1) (2008).
The rule further provides that a judge against whom an initial
motion to disqualify under subsection (e) is raised “determine only
the legal sufficiency of the motion and shall not pass on the truth of
the facts alleged.” Fla. R. Jud. Admin. 2.330(f) (2008); see also
Cave, 660 So. 2d at 707-08 (explaining that in reviewing a motion
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to disqualify, “the judge shall determine only the legal sufficiency of
the motion and shall not pass on the truth of the facts alleged”). If
a judge determines that a motion is legally sufficient, he or she
must enter an order granting disqualification and proceed no
further. Cave, 660 So. 2d at 708.
When a court rules on the legal sufficiency of a motion for
disqualification, it must consider “whether the facts alleged would
place a reasonably prudent person in fear of not receiving a fair and
impartial trial.” Livingston v. State, 441 So. 2d 1083, 1087 (Fla.
1983). Rather than questioning a judge’s perception of his or her
“ability to act fairly and impartially,” a motion for disqualification
“focuses on those matters from which a litigant may reasonably
question a judge’s impartiality.” Id. at 1086. Even if a judge,
therefore, is confident that he or she can preside with no bias, the
judge must grant a motion to disqualify if a reasonably prudent
person could question his or her impartiality.
Davis’s motion met this threshold. It rested on the State’s
strong preference for Judge Harb’s continued participation in the
case, notwithstanding his service in the unit responsible for its
prosecution. Davis also argued that Judge Harb’s presence at the
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status conference allowed him to learn “factual information that the
law unambiguously forbade him from considering in deciding the
question of disqualification, when the State knew full well that a
disqualification motion would be coming if the case was assigned to
him.” Davis, 311 So. 3d at 934. As the Second District explained,
the allegations were “sufficient to have given Mr. Davis—who was
present while all of this unfolded—a reasonable fear that he would
not receive a fair trial.” Id. at 934-35. To deny his motion,
therefore, was error.
III
We also agree with the Second District’s conclusion that the
erroneous denial of a legally sufficient motion for disqualification
based on alleged bias or prejudice is not reversible error per se.
A
When an error is properly preserved for appellate review by a
timely objection at trial, the reviewing court applies either a
harmless error test or a per se reversible error rule. Johnson, 53
So. 3d at 1007. To say that certain errors are per se reversible is to
say that they “are so basic to a fair trial that their infraction can
never be treated as harmless error.” DiGuilio, 491 So. 2d at 1135
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(quoting Chapman v. California, 386 U.S. 18, 23 (1967)). “In other
words, [they are] those errors which are always harmful.” Id. For
example, we have held that a bailiff's ex parte communication with
the jury on a substantive matter, even at the direction of the trial
court, constitutes per se reversible error. State v. Merricks, 831 So.
2d 156, 160-61 (Fla. 2002); see also Ivory v. State, 351 So. 2d 26,
28 (Fla. 1977) (finding it per se prejudicial error for a trial judge to
respond to a jury request for additional instructions, after the jury
has already retired to consider their verdict, without the
prosecuting attorney, the defendant, and defendant’s counsel being
present to voice objections). The classes of error we treat as so
categorically harmful as to always require reversal, however, are
few. That is because section 924.33 of our statutes generally
prohibits us from “presum[ing] that error injuriously affected the
substantial rights of the appellant.” § 924.33, Fla. Stat. (2021); see
Palmes v. State, 397 So. 2d 648, 653 (Fla. 1981) (“That the trial
court’s ruling was in error does not necessarily require reversal of
the judgment. A judgment will not be reversed unless the error was
prejudicial to the substantial rights of the appellant. This long
standing decisional rule has also been enacted as [section 924.33].”
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(citations omitted)). Therefore, we default to the harmless error test
and reserve a per se rule “only for those errors that always vitiate
the right to a fair trial and therefore are always harmful.” State v.
Schopp, 653 So. 2d 1016, 1020 (Fla. 1995).
The harmless error test focuses on the effect of the error on
the trier of fact and “places the burden on the state, as the
beneficiary of the error, to prove beyond a reasonable doubt that the
error complained of did not contribute to the verdict or,
alternatively stated, that there is no reasonable possibility that the
error contributed to the conviction.” DiGuilio, 491 So. 2d at 1135.
“If the appellate court cannot say beyond a reasonable doubt that
the error did not affect the verdict,” then the error is considered
harmful. Id. at 1139.
Comments on a defendant’s silence are one class of errors
subject to the harmless error analysis. DiGuilio, 491 So. 2d at
1137; see also Marston v. State, 136 So. 3d 563, 570-72 (Fla. 2014)
(finding harmful error where a prosecutor “commented
continuously” on the defendant’s Fifth Amendment rights during
voir dire, because the “extensive remarks” impermissibly “demeaned
[the defendant’s] constitutional right to remain silent” and “invited
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the jury to infer guilt from [the defendant’s] decision not to take the
stand”); but see Burns v. State, 699 So. 2d 646, 652 (Fla. 1997)
(classifying the trial court’s failure to give a cautionary instruction
on the defendant’s silence at the penalty phase as a harmless error,
since the defendant was found guilty by a properly instructed guilt-
phase jury, the newly impaneled penalty-phase jury voted
unanimously for death, the trial court found three aggravating
circumstances, and the facts of the killing were egregious).
Improperly admitted evidence is another. See Czubak v. State,
570 So. 2d 925, 928 (Fla. 1990) (finding harmful error where
evidence of collateral crimes committed by the defendant—in the
form of testimony that defendant was an escaped convict—was
introduced, since the testimony had no relevance to any material
fact in issue and the case against the defendant was largely
circumstantial); but see Castro v. State, 547 So. 2d 111, 115 (Fla.
1989) (deeming a trial court’s error in allowing a witness to testify
about the defendant’s previous collateral act harmless, because it
did not influence the most incriminating evidence against the
defendant, which was “his own confession”).
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“[B]oth per se reversible error and harmful error analysis apply
only if,” as was the case here, “the issue is properly preserved for
appellate review.” Johnson, 53 So. 3d at 1007.
B
In light of all this, we consider the properly preserved error
alleged in this case and conclude that it is subject to harmless error
analysis. As we shall explain, this conclusion does not alter the
error’s seriousness, or indeed the potential seriousness of any error
subject to such review. Nonetheless, it is the conclusion
commanded by the plain language of section 924.33, Florida
Statutes (2021), 3 “which provides that harmless error analysis is
applicable to all judgments.” Schopp, 653 So. 2d at 1020.
Per se errors generally fall into two categories. First, when
“application of the [harmless error] test to the type of error involved
will always result in a finding that the error is harmful, then it is
proper to categorize the error as per se reversible.” DiGuilio, 491 So.
3. “No judgment shall be reversed unless the appellate court
is of the opinion, after an examination of all the appeal papers, that
error was committed that injuriously affected the substantial rights
of the appellant. It shall not be presumed that error injuriously
affected the substantial rights of the appellant.” § 924.33, Fla. Stat.
(2021).
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2d at 1135. (“The test of whether a given type of error can be
properly categorized as per se reversible error is the harmless error
test itself.”). Second, “[t]his Court has also applied the per se
reversible error rule to those cases where the appellate court is
unable to conduct a harmless error analysis because it would have
to engage in pure speculation in order to attempt to determine the
potential effect of the error on the jury.” Johnson, 53 So. 3d at
1007.
The erroneous denial of a motion for disqualification does not
belong in the first category. That is because our rule for motions
for disqualification is prophylactic: some motions will inevitably be
granted where a judge is not in fact biased—and thus the feared
harm would not have been realized. See, e.g., Cave, 660 So. 2d at
708 (holding that the trial court erred by conducting a full
evidentiary hearing on a motion for disqualification and
adjudicating the issue on the merits, because the rules provide that
when presented with a motion for disqualification, a judge “shall
determine only the legal sufficiency of the motion and shall not pass
on the truth of the facts alleged,” and “shall immediately disqualify
himself if the motion is legally sufficient”). A motion for
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disqualification may list any number of baseless or untrue
allegations and nonetheless be legally sufficient. In that case,
although a judge must grant the legally sufficient motion, the
erroneous denial of the motion and the judge’s subsequent
participation in the case would not always create a “reasonable
possibility that the error contributed to the conviction.” DiGuilio,
491 So. 2d at 1135.
Regarding the second category of per se errors, we find that
the alleged error in this case does not require us “to engage in pure
speculation in order to attempt to determine the potential effect of
the error on the jury.” Johnson, 53 So. 3d at 1007. We have
previously found per se reversible error to occur when the absence
of, defect in, or jury’s limited access to a trial record requires us to
speculate in order to determine the error’s effect.
In Johnson, id. at 1006, we found that “when a judge
erroneously instructs a jury that it may not request to have
testimony read back . . . it is impossible to determine the effect of
the erroneous instruction on the jury” because we cannot guess
with any accuracy when the jury would have made such a request.
Id. at 1009 (“A court attempting to conduct a harmless error
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analysis cannot know what testimony a jury would have requested
to have read back or even whether a jury would have asked for a
read-back at all. Therefore, a reviewing court cannot determine
whether a jury was confused or needed clarification about the facts
of the case, and it is impossible to discern whether the defendant
was prejudiced by the error.”). And we have recognized that “[a]ny
communication with the jury outside the presence of the
prosecutor, the defendant, and defendant’s counsel is so fraught
with potential prejudice that it cannot be considered harmless.”
Ivory, 351 So. 2d at 28.
And we have held that it is per se error “for a trial judge to
respond to a request from the jury without the prosecuting
attorney, the defendant, and defendant’s counsel being present and
having the opportunity to participate in the discussion of the action
to be taken on the jury’s request,” as the absence of any such party
would almost certainly affect the record. Id. We have likewise
found unsupervised communications between a bailiff and a jury to
be per se reversible. Merricks, 831 So. 2d at 161.
Similarly, when a judge responds to a jury request covered
under rule 3.410 outside the presence of counsel, the State and
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defendant are absent, and therefore unable to participate in the
exchange with the jury. Without this participation process, “it is
impossible to determine whether prejudice has occurred” because
the reviewing court must speculate as to what objections and
arguments each party might have made. Bradley v. State, 513 So.
2d 112, 113-14 (Fla. 1987) (citing Curtis v. State, 480 So. 2d 1277,
1279 (Fla. 1985)); see also Colbert v. State, 569 So. 2d 433, 435
(Fla. 1990) (listing cases and examining the history of the per se
reversible error rule in the rule 3.410 context).
Finally, when a bailiff engages in unsupervised conversations
with a jury, harmless error analysis is inappropriate because it
“would ‘unnecessarily embroil trial counsel, trial judges and
appellate courts in a search for evanescent “harm,” real or
fancied.’ ” Merricks, 831 So. 2d at 161 (quoting Ivory v. State, 351
So. 2d 26, 28 (Fla. 1977) (England, J., concurring)). There is no
record to consult.
Here, however, there is. Unlike these cases, in this one, the
result of the alleged error is the trial record as we have it. From this
record, we may reasonably determine the effect of the alleged
error—Judge Harb’s erroneous denial of the motion for
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disqualification, and his subsequent participation in the case—on
Davis’s conviction.
Since we can indeed conduct a thorough harmless error
analysis to determine whether there is a reasonable possibility that
the erroneous denial influenced the jury’s decision, a per se rule is
unwarranted.4 See Colbert, 569 So. 2d at 435 (applying the
4. Some of our prior decisions have assumed, without really
reasoning to the conclusion, that the erroneous denial of a motion
to disqualify is per se reversible error. See Livingston, 441 So. 2d at
1087 (“We have concluded that Livingston's verified motion and
supporting documents were sufficient under Florida Rule of
Criminal Procedure 3.230 to require the trial judge to disqualify
himself. We must vacate the judgment and sentence and remand
with directions to proceed with a new trial.”); Cave, 660 So. 2d at
708 (“[W]e find that Judge Walsh’s conduct failed to follow the
procedural process outlined in rule 2.160 and his error requires us
to vacate Cave's sentence.”); Fuster-Escalona v. Wisotsky, 781 So.
2d 1063, 1065-66 (Fla. 2000) (“When a trial court fails to act in
accord with the statute and procedural rule on a motion to
disqualify, an appellate court will vacate a trial court judgment that
flows from that error.”); Thompson v. State, 990 So. 2d 482, 489
(Fla. 2008) (“When a trial court fails to act in accord with the law
governing motions to disqualify, an appellate court will vacate a
trial court judgment that flows from the error.” (citing Fuster–
Escalona, 781 So. 2d at 1065)). But the decision below is correct
that these cases do not require us to adhere to a per se rule. In
Livingston, we did not reject the harmless error rule, but rather, a
rule that would have put the burden on the defendant to show that
the trial court was biased in fact. And in Fuster-Escalona, which we
cited in Thompson, the language that Davis invokes did not resolve
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harmless error analysis where “[t]he prospective jury instructions
were extensively discussed with counsel,” “[d]efense counsel fully
argued the position that a mistrial on all counts was warranted and
objected on the record,” and “defense counsel properly preserved
the issue by objecting on the record”). 5
We therefore agree with the Second District Court of Appeal’s
conclusion that harmless error remains the proper analysis for
erroneous denials of a legally sufficient motion for disqualification.
the dispute before the Court. See Davis, 311 So. 3d at 942-43
(addressing these cases and declining to follow them).
5. Nor, as Davis implies, do “due process concerns” require
that we employ a per se reversal rule. Davis cites Steinhorst v. State
for the proposition that “one of the most important dictates of due
process” is that “proceedings involving criminal charges, and
especially the death penalty, must both be and appear to be
fundamentally fair.” 636 So. 2d 498, 501 (Fla. 1994). That is
certainly correct. Yet we have repeatedly found application of the
DiGuilio harmless error standard to comport with due process, and
to sufficiently safeguard the appearance and fact of fundamental
fairness in evaluating the constitutional impact of trial errors,
including in capital cases. See, e.g., Burns, 699 So. 2d at 652(applying the harmless error standard where a trial court erred in
refusing to give a requested jury instruction, finding that the trial
court’s “failure to give the requested instruction was harmless
beyond a reasonable doubt,” and affirming the defendant’s sentence
of death).
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C
We have repeatedly rejected attempts to depart from the
harmless error test articulated in DiGuilio. State v. Lee, 531 So. 2d
133, 134 (Fla. 1988); Goodwin v. State, 751 So. 2d 537, 546 (Fla.
1999); Knowles v. State, 848 So. 2d 1055 (Fla. 2003); Williams v.
State, 863 So. 2d 1189, 1190 (Fla. 2003). We do so again today.
DiGuilio asks “whether there is a reasonable possibility that the
error affected the verdict.” 491 So. 2d at 1139. Here, we can
answer that question by looking to a defendant’s motion for
disqualification, the circumstances surrounding that motion,
records at pretrial hearings, and records at the trial itself. Indeed,
we do so in the next section.
IV
Applying the test laid out in DiGuilio, we cannot say that “there
is no reasonable possibility that the error contributed to the
conviction.” 491 So. 2d at 1135. While presiding over this case,
Judge Harb made several consequential decisions that could have
altered the outcome of the trial. Most notably, Davis’s alternative
theory of defense at trial was that he suffered a preexisting mental
disease or infirmity. As argued by Davis, this preexisting condition
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triggered the psychotic episode that led to the shootings—not, as
argued by the State, his alleged use of marijuana.
Prior to Judge Harb’s involvement, the defense moved for
individual sequestered voir dire on the insanity defense, among
other topics. The defense argued that the insanity defense was
“often viewed negatively by jurors,” therefore an “open discussion of
a negative view of this topic could taint the entire juror panel.”
Judge Jacobsen granted the motion in part on May 18, 2015,
allowing individual sequestered voir dire on “predilections
concerning the use of a mental health-related defense.”
However, during jury selection, Judge Harb overrode Judge
Jacobsen’s order and ruled instead: “I will allow the State to ask
questions regarding mental health.” The defense objected, and
Judge Harb clarified that either the State or defense could request
to individually voir dire a juror “while the State is asking questions,”
but the parties “will be allowed to delve into [questions about
mental health].”
Sequestered voir dire on the insanity defense, as granted by
Judge Jacobsen and rescinded by Judge Harb, might very well have
had a profound effect not only on the composition of Davis’s jury,
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but on the selected jurors’ perception of the insanity defense going
into trial. Bearing this in mind, we find that there is a reasonable
possibility that Judge Harb’s failure to grant the motion to
disqualify, and in turn his influence on voir dire and the jury
selection process, contributed to Davis’s conviction.6
V
We answer the certified question in the affirmative. We
approve in part, finding that the Second District was correct to
apply the harmless error standard. However, the proper test for
harmless error is that set forth in State v. DiGuilio, 491 So. 2d 1129,
1135 (Fla. 1986). Under that standard, we conclude harmful error
occurred. We quash the decision of the Second District to the
extent that it concludes that there was no harmful error in this
case, and remand for a new trial.
6. We need not and do not find that any of Judge Harb’s trial
rulings were erroneous. None of them are before us. All we must
consider is whether the error alleged by Davis—the denial of his
legally sufficient motion for disqualification—had a reasonable
probability of contributing to his conviction. Right or wrong, the
rulings we have discussed here meet that threshold.
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It is so ordered.
MUÑIZ, C.J., and CANADY and GROSSHANS, JJ., concur.
POLSTON, J., concurs in result and dissents in part with an
opinion, in which LABARGA, J., concurs.
LABARGA, J., concurs in result and dissents in part with an
opinion, in which POLSTON, J., concurs.
FRANCIS, J., did not participate.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
POLSTON, J., concurring in result and dissenting in part.
I agree that the motion to disqualify the trial judge should
have been granted, and I also agree with the majority to the extent
that it quashes in part the decision below and remands for a new
trial. However, I dissent to the majority’s use of the harmless error
standard because this cannot be reconciled with our established
precedent treating the erroneous denial of a motion to disqualify the
trial judge as per se reversible.
In Livingston v. State, 441 So. 2d 1083, 1084 (Fla. 1983), on
direct appeal from a first-degree murder conviction and death
sentence, the defendant raised the issue of the erroneous denial of
his motion to disqualify the trial judge based on alleged bias or
prejudice. Id. The defendant’s motion to disqualify cited specific
incidents of animosity between defense counsel and the trial judge.
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Id. at 1084-85. This Court concluded that the defendant’s motion
was sufficient, and “the trial judge should have disqualified himself
from presiding in [the defendant]’s trial.” Id. at 1084, 1087. As a
result, we vacated the judgment and sentence and remanded for a
new trial. Id. at 1087.
In Cave v. State, 660 So. 2d 705 (Fla. 1995), after conducting
a “full evidentiary hearing on the factual allegations contained in
[the defendant]’s motion for disqualification of the judge,” the trial
judge denied the defendant’s motion as legally insufficient. Id. at
707-08. On direct appeal of resentencing that resulted in a death
sentence for the conviction of first-degree murder, the defendant
argued that the erroneous denial of the defendant’s motion for
disqualification of the trial judge was reversible error. Id. at 707
n.2. This Court agreed, concluding that “[t]he hearing of evidence
and the subsequent ruling on the evidence demonstrates that the
judge passed on the truth of the facts alleged and adjudicated the
question of his disqualification,” and “his error requires us to vacate
[the defendant]’s sentence” and remand for resentencing. Id. at
708.
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Further, in Thompson v. State, 990 So. 2d 482, 485 (Fla.
2008), in addressing an express and direct conflict issue involving
“the appropriate standard for determining prejudice with regard to
an ineffective assistance of counsel claim based on counsel’s failure
to disqualify the presiding judge,” this Court reiterated that “[w]hen
a trial court fails to act in accord with the law governing motions to
disqualify, an appellate court will vacate a trial court judgment that
flows from the error.” Id. at 489 (emphasis added).
The majority errs in concluding that the erroneous denial of a
legally sufficient motion for disqualification is not per se reversible.
As explained in the cases above, the Court has consistently applied
a per se reversible standard consistent with the first category of the
test set forth in State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986).
Rather than receding, the majority looks to inapplicable factual
circumstances and case law to apply the harmless error standard.
Majority op. at 13-17. Recusal errors involving a judge who is
alleged to be biased or prejudiced fit into the class of errors that
vitiate the right to a fair trial. See State v. Schopp, 653 So. 2d 1016,
1020 (Fla. 1995) (“[A] per se rule is appropriate only for those errors
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that always vitiate the right to a fair trial and therefore are always
harmful.”).
It is important that a judge have no actual or appearance of
bias or prejudice. See Fuster-Escalona v. Wisotsky, 781 So. 2d
1063, 1065 (Fla. 2000) (“[T]he neutrality of judges is a ‘grave
concern’ even as to perception.”). Public trust and confidence in
our judicial system is crucial to the rule of law. See In re Ford-
Kaus, 730 So. 2d 269, 277 (Fla. 1999) (“The judicial system can
only function if the public is able to place its trust in judicial
officers.”). A judge who appears to be unfair, even if getting legal
rulings correct, is damaging to the public trust and confidence and
cannot be tolerated. See Fuster-Escalona, 781 So. 2d at 1066(“Logically, any decision by a judge under a cloud of prejudice
would be suspect, thus undermining the integrity of the court
proceeding and any movement toward judgment.”). Due process
demands more. See Steinhorst v. State, 636 So. 2d 498, 501 (Fla.
1994) (“There is no other conclusion that is consistent with one of
the most important dictates of due process: that proceedings
involving criminal charges . . . must both be and appear to be
fundamentally fair.”).
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Accordingly, consistent with this Court’s precedent, I would
conclude that the erroneous denial of Davis’ disqualification motion
is per se reversible, answer the certified question in the negative,
quash the Second District Court of Appeal’s decision below, and
remand for a new trial.
LABARGA, J., concurs.
LABARGA, J., concurring in result and dissenting in part.
I agree with the majority that the motion to disqualify the trial
court judge should have been granted. Thus, I agree with the
majority to the extent that it quashes in part the decision below and
remands for a new trial.
However, because I believe that the erroneous denial of a
disqualification motion is per se reversible, I dissent to the
majority’s use of the harmless error standard of review.
POLSTON, J., concurs.
Application for Review of the Decision of the District Court of Appeal
Certified Great Public Importance
Second District – Case No. 2D17-517
(Polk County)
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Howard L. “Rex” Dimmig, II, Public Defender, Steven L. Bolotin and
Rachel P. Roebuck, Assistant Public Defenders, Tenth Judicial
Circuit, Bartow, Florida,
for Petitioner
Ashley Moody, Attorney General, Henry C. Whitaker, Solicitor
General, Jeffrey Paul DeSousa, Chief Deputy Solicitor General, and
David M. Costello, Assistant Solicitor General, Tallahassee, Florida,
C. Suzanne Bechard, Chief Assistant Attorney General, and Laurie
Benoit-Knox, Assistant Attorney General, Tampa, Florida,
for Respondent
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