Summary
holding that judge's interruption of defense counsel to directly question officer about his report and a vehicle's ownership and judge's statement to the effect that defense counsel's subsequent question was "irrelevant" did not deprive defendant of fair trial and require reversal of convictions
Summary of this case from Mathew v. StateOpinion
Case No. 2D97-5075
Opinion filed July 26, 2000.
Appeal from the Circuit Court for Polk County; R. Earl Collins, Acting Circuit Judge.
Steve Pincket, Lakeland, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and John T. Salgado, Assistant Attorney General, Tampa, for Appellee.
Jerome Grant appeals his convictions for driving with a suspended license, driving with an expired tag, possession of cocaine, and possession of cannabis. We affirm.
Grant was also simultaneously tried on three violations of probation as a result of these offenses but raises no issue in regard to that aspect of the proceeding.
Of the four issues in this appeal, we affirm three without comment. The fourth issue challenges the propriety of the judge's conduct during the jury trial. At trial, the judge interrupted defense counsel's cross-examination of a law enforcement officer despite the fact that opposing counsel was not objecting to the examination. Grant urges this court to find that the judge's conduct deprived him of due process of law by denying him a neutral and detached magistrate. Although we do not endorse the actions of the trial judge, we find that no reversible error occurred in this case.
Grant argues that Sparks v. State, 740 So.2d 33 (Fla. 1st DCA), review denied, 741 So.2d 1137 (Fla. 1999), requires a finding that constitutional fundamental error occurred in the present case. In Sparks, the trial judge called the attorneys to the bench during the State's cross-examination of the defendant and pointed out evidence in an affidavit of insolvency contained in the court file that was contrary to the defendant's testimony. Id. at 34-35. The judge subsequently permitted the State to use the document to impeach the defendant's testimony. On motion of the court, the judge then asked if there was any objection to the entry of the affidavit of insolvency into evidence. Id. at 35.
Sparks is inapplicable to the present case because the trial judge in Sparks clearly overstepped proper bounds by actively assisting the prosecutor in presenting the State's case regarding evidence on the core issue of the defendant's credibility. Under the circumstances in Sparks, the appellate court could not determine if the error was harmless. Id. at 37. In the present case, we conclude that there may have been error, but the error was not sufficient to require reversal.
During cross-examination of the arresting officer in this case, defense counsel sought to establish that the officer wrote an arrest affidavit and followed up by writing a report on another day. Following an objection by the State, the trial judge directly questioned the officer about the report, and, at a bench conference, told defense counsel that the matter was being belabored. When defense counsel asserted that the trial judge appeared to be getting upset with her, the trial judge replied that defense counsel was creating the problem.
Shortly thereafter, when defense counsel attempted to question the officer concerning a vehicle's ownership, the trial judge again posed questions directly to the officer. When defense counsel attempted to ask the officer whether the officer pulled off a boulevard into a driveway and went behind a section of pumps, the trial judge interrupted and stated, "What difference would it make where he pulled in? There is no testimony going with that. He made eye contact after he parked."
Although the trial judge's interruptions were not as egregious as the actions of the trial judge in Sparks, they were clearly improper. 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. However, we agree that the interruptions did not deprive the defense of full cross-examination of the witness.
We remind trial judges that every litigant is entitled to nothing less than the cold neutrality of an impartial judge, and the judge must leave that impression of impartiality upon all those who attend court. See Love v. State, 569 So.2d 807, 809-10 (Fla. 1st DCA 1990). Even, as here, when the trial judge was faced with an assistant state attorney who was not objecting to opposing counsel's questions, that judge must be cautious in cutting off counsel's questions and interjecting his own questions to a witness.
Affirmed.
BLUE, J., Concurs.
SALCINES, J., Concurs specially.
I fully concur in the affirmance of this case and agree that a trial judge must not only be a neutral and impartial jurist but must also reflect that impression to all viewers. I also agree that the trial judge could have handled the matter differently. But, in my view, a trial judge is mandated to reasonably control the flow of admissible and competent evidence.
In the present case, the judge's comments cut short some repetitive questioning, by the defense counsel, of matters the probative value of which was never established, a proper foundation was never laid, and, in some instances, a proffer was never made. In other instances, the errors claimed by Grant were unpreserved.
Lawyers and judges are officers of the court and are governed by standards of professionalism. See R. Regulating Fla. Bar 4-1.1 to 4-8.6; Fla. Code Jud. Conduct, Canons 1-7. Each performs a separate function in a trial. The lawyers must conduct themselves with dignity and respect toward the tribunal and each other. The judge has judicial responsibilities as the presiding officer and moderator of the proceedings.
A trial judge is invested with inherent and expressed powers to manage and control the conduct of a trial and the participants in that trial in all respects. In the context of the adjudicative process, those inherent powers include, among others, the power 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. See, e.g., Felix F. Stumpf, Inherent Powers of the Courts: Sword and Shield of the Judiciary (The National Judicial College 1994); Roger A. Silver, The Inherent Power of the Florida Courts, 39 U. Miami L. Rev. 257 (1985). In the pursuit of truth and a just result, the trial judge must conduct himself or herself in a reasonable way that does not abuse the court's discretion or violate a party's due process, and that maintains the appearance of impartiality and propriety. While a judge is expected to present the appearance of "cold neutrality," he or she should not be intimidated into being an iceberg only to be heard at calving.
The expressed powers concerning the judge's conduct during a trial are enunciated in the applicable constitutions and statutes as well as rules of procedure and evidence. Florida has an extensive statutory framework which provides a mechanism through which a trial judge can control the admission of evidence. In jury trials, section 90.104(2) of the Florida Evidence Code mandates: "A court shall 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." Sections 90.612 and 90.615 of the Florida Evidence Code give the judge the reasonable control over the mode and order of the questioning of witnesses and presentation of evidence so as to facilitate the discovery of the truth, and avoid harassment or undue embarrassment of witnesses, and acknowledges the court's right to question witnesses regardless of what party called the witness. As the majority opinion indicates, the judge, however, cannot cross the line by indicating partiality, or by ridiculing or showing disfavor toward a party or the attorney in the jury's presence. Section 90.106 of the Florida Evidence Code clearly dictates that in a jury trial a judge may not sum up or comment on the evidence or its weight, the credibility of witnesses, or the guilt of an accused.
As I view the record in the present case, the judge prevented the introduction of irrelevant evidence and curtailed the introduction of repetitious and confusing evidence, but he did not take over the cross-examination nor did he deprive the defense of full cross-examination within proper and reasonable bounds.