JOHNELL DAYTHWON LANG v. STATE OF FLORIDA , 228 So. 3d 153 ( 2017 )


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  •        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    JOHNELL DAYTHWON LANG,
    Appellant,
    v.
    STATE OF FLORIDA,
    Appellee.
    Nos. 4D16-2545 & 4D16-2546
    [October 25, 2017]
    Consolidated appeals from the Circuit Court for the Fifteenth Judicial
    Circuit, Palm Beach County; Jack Schramm Cox, Judge; L.T. Case Nos.
    502010CF011286AMB & 502010CF011287AMB.
    Carey Haughwout, Public Defender, and J. Woodson Isom, Assistant
    Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L.
    Comras, Assistant Attorney General, West Palm Beach, for appellee.
    WARNER, J.
    Appellant challenges the revocation of his probation in two criminal
    cases, contending that the trial judge departed from a position of neutrality
    when he conducted an independent investigation of a prior charge not
    offered by the State in its case. The judge used that information in
    evaluating the credibility of the witnesses. Because he departed from a
    position of neutrality, the judge did not afford appellant his due process
    right to an impartial magistrate. We therefore reverse and remand for
    proceedings before another judge.
    Appellant was sentenced to prison time followed by probation for three
    crimes in two separate cases: lewd and lascivious battery on a person
    older than twelve, but less than sixteen, aggravated battery, and sexual
    battery of a person twelve years of age or older. After his release from
    prison, he violated his probation twice and was reinstated each time, after
    serving some time in jail. His probation officer filed a third violation of
    probation affidavit, which is the subject of this appeal, for an incident of
    indecent exposure which allegedly occurred while appellant was
    incarcerated for the second violation of probation. Appellant was accused
    of exposing himself to a female jail deputy.
    The female deputy testified at the violation hearing that she had worked
    for the Palm Beach County Sheriff’s office for twenty-eight years. On the
    date in question, she was assigned to the jail’s male dorm in which
    appellant was housed. The female deputy knew appellant and had
    supervised appellant on other occasions. As she was completing her
    duties, she saw appellant looking at her and stroking his penis. She
    approached appellant and he immediately put his penis back in his pants.
    She wrote up a report on the incident, which led to the filing of the affidavit
    of violation of probation.
    After the deputy’s testimony, the State asked the judge to take notice
    of the “clerk’s file,” to which the defense did not object. The judge queried
    the state as to what specifically the state was requesting the court to
    review, and the prosecutor designated the prior violations of probation and
    the orders reinstating probation. The defense objected to anything
    regarding the prior violations, because they were not relevant to whether
    appellant violated probation in this incident. Appellant’s probation officer
    then testified to his supervision of appellant and the filing of the affidavit
    of violation for the exposure incident.
    Appellant testified in his defense. A few days before the incident
    charged in the violation of probation, appellant had asked for supplies
    from the deputy, and she became aggravated with him, telling him that he
    would end up in jail again. On the date of the incident, appellant again
    asked the deputy for supplies, and she became aggravated again, telling
    appellant that he was doing it on purpose. She told him not to get off of
    his bed. He disobeyed her and went to the TV room. She entered the room
    and told him to pack his stuff, stating he didn’t listen and she would get
    him out of her dorm. Appellant denied putting his hands in his pants or
    exposing himself. During the five years he was previously in prison, he
    never received a disciplinary report for anything like indecent exposure.
    The prosecutor did not attempt to impeach appellant on his testimony.
    The prosecutor and the defense counsel both presented closing
    arguments. After the arguments were complete, the judge decided to pull
    up the appellant’s criminal record in the clerk’s database. He again asked
    the prosecutor which documents she wanted the court to see. Both the
    prosecutor and defense focused on the prior violations of probation and
    the orders reinstating probation, and the defense again objected on
    relevance grounds. The judge determined that he wanted to look at the
    clerk’s file, because he found it hard to believe that the deputy would lie
    and risk her job by committing perjury, if the incident never happened.
    2
    The judge then asked whether there were any prior charges of indecent
    exposure. The prosecutor informed the judge that none of the prior
    violations of probation involved sexual matters, as they were all technical
    violations. Reviewing the clerk’s complete database for appellant, the
    judge noted a closed misdemeanor case from 2011 for indecent exposure.
    The prosecutor indicated the case involved the deputy and appellant in the
    jail in “a different set of circumstances,” and the defense objected that the
    information was outside the record and testimony. The judge overruled
    the objection, stating he was “kind of interested in knowing what that was”
    and suggesting the case was relevant to the “ongoing dispute” between
    appellant and the deputy. While the clerk noted that the charge was nolle
    prossed, the judge wanted to look at the probable cause affidavit, which
    the State was able to secure. In the prior incident, the deputy had reported
    that while in jail appellant had masturbated while staring at her. After
    reviewing the affidavit, the court noted “this is almost an identical
    situation.” The judge commented that he would use the case to determine
    if it was more probable that the deputy or appellant was lying. Given that
    the indecent exposure had happened twice, the judge found that the
    deputy was more credible and that appellant had committed a willful
    violation of probation.
    At sentencing, the state requested that the court revoke appellant’s
    probation and sentence him to 8.8 years. The defense asked for
    reinstatement of probation. The judge again asked about the nolle prossed
    misdemeanor. He then revoked appellant’s probation and sentenced him
    to ten year concurrent terms on the underlying criminal convictions, with
    credit for time served, from which orders appellant appeals.
    “[E]very litigant is entitled to nothing less than the cold neutrality of an
    impartial judge,” especially when the judge acts as the finder of fact. State
    ex rel. Davis v. Parks, 
    194 So. 613
    , 615 (Fla. 1939); McFadden v. State,
    
    732 So. 2d 1180
    , 1183, 1185 (Fla. 4th DCA 1999). The Due Process
    Clause entitles a defendant to a neutral and detached tribunal in a VOP
    hearing. Sears v. State, 
    889 So. 2d 956
    , 959 (Fla. 5th DCA 2004).
    In J.F. v. State, 
    718 So. 2d 251
    , 252 (Fla. 4th DCA 1998), we held that
    a trial court departed from a position of neutrality by insisting on the
    presentation of fingerprint testing which was not ready nor requested by
    the state to be presented at trial. We explained,
    While is it permissible for a trial judge to ask questions
    deemed necessary to clear up uncertainties as to issues in
    cases that appear to require it, the trial court departs from a
    position of neutrality, which is necessary to the proper
    3
    functioning of the judicial system, when it sua sponte orders
    the production of evidence that the state itself never sought to
    offer into evidence.
    
    Id. (citations omitted).
    This case is similar to J.F. After the close of the
    trial, the court sought to review appellant’s entire record and discovered a
    misdemeanor conviction. The misdemeanor was not one of the charges
    resulting in the previous violations of probation, nor did the State ever
    seek to use it to impeach the appellant. The defense objected to the judge’s
    consideration of the misdemeanor, because it was beyond the evidence in
    the case. Nevertheless, the trial judge persisted in seeking information
    about the prior nolle prossed misdemeanor. Just as in J.F., the judge
    sought the production of evidence which the state never sought to offer
    into evidence. The judge departed from a position of neutrality, depriving
    appellant of his due process right.
    While the state now argues that the 2011 misdemeanor somehow was
    part of the “clerk’s file,” for which it sought judicial notice at the beginning
    of the trial, it is clear that the state’s request for the judge to review the
    court file meant the file of the underlying criminal offenses on which prior
    violations of probation had been filed. The prosecutor never mentioned
    the 2011 incident, which was a separate charge and separate file, and did
    not request that the judge view it. See City of Sunrise v. Hinton, 
    569 So. 2d
    891, 891 (Fla. 4th DCA 1990) (noting a party must request the court to
    take notice of other proceedings); see Kelley v. Kelley, 
    75 So. 2d 191
    , 193
    (Fla. 1954) (“A court should not be required or permitted to browse
    amongst its own records . . . , where the object of the inquiry is to arrive
    at its own particular judgment in whole or in part on an extraneous record
    not introduced[.]”) (citations omitted.)
    The record is also abundantly clear that this evidence gathered by the
    judge was crucial to his credibility determinations, as well as the sentence
    he ultimately imposed. Because the judge acted as prosecutor in securing
    additional evidence and then using that evidence in his deliberation, the
    appellant was deprived of a neutral magistrate.
    For the foregoing reasons, we reverse the revocation of probation and
    sentence and remand for new proceedings in front of a different trial judge.
    DAMOORGIAN and LEVINE, JJ., concur.
    *         *         *
    Not final until disposition of timely filed motion for rehearing.
    4
    

Document Info

Docket Number: 4D16-2545 & 4D16-2546

Citation Numbers: 228 So. 3d 153

Judges: Warner, Damoorgian, Levine

Filed Date: 10/25/2017

Precedential Status: Precedential

Modified Date: 10/19/2024