Joshua Davis v. State of Florida

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).
- 17 -
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.”).
- 30 -
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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