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 
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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 
6

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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7

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 
8

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 . . . .”).
9

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. 
10

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.”).
11

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.