Davis v. State

• Decision Date: 08 September 2022
• Docket Number: SC20-1282
• Parties: JOSHUA DAVIS, Petitioner, v. STATE OF FLORIDA, Respondent.
• Court: Florida Supreme Court

JOSHUA DAVIS, Petitioner, v. STATE OF FLORIDA, Respondent.

No. SC20-1282

Supreme Court of Florida

September 8, 2022

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal Certified Great Public Importance Second District - Case No. 2D17-517 (Polk County)

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

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, 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 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, (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.

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 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:

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...