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Vaughn v. Progressive Casualty Insurance Co.7/29/2005
should make every attempt to admonish counsel outside the hearing of the jury. Id. at 633 ("When objections are sustained and the trial court considers it proper to admonish counsel, it should be done outside the jury's presence. However, if counsel continues to engage in improper comments and arguments, the trial judge should admonish counsel and advise them that future improper tactics will cause counsel to be rebuked before the jury. This has a magical effect!"); Medina v. Variety Children's Hosp., 438 So. 2d 138 (Fla. 3d DCA 1983).
In Whitenight v. International Patrol & Detective Agency, Inc., 483 So. 2d 473 (Fla. 3d DCA), review denied, 492 So. 2d 1333 (Fla. 1986), for example, among other comments made, the trial judge indicated that plaintiff's counsel was wasting the court's and the jury's time, and the comment was overheard by at least one juror. The circumstances of that case warranted reversal. Id. at 475. Here, under circumstances more egregious, the trial court's repeated rebuke of Vaughn's counsel in the presence of the jury clearly placed the trial judge in an adversarial position to Vaughn's counsel and prevented the trial judge from exercising the fairness and impartiality required to ensure that all parties receive a fair trial.
Moreover, we believe that the court impermissibly commented on the evidence when, as counsel for Vaughn was attempting to establish the date and approximate time of the accident through the testimony of a witness, the court exclaimed, "We don't know that. That's not been established. There's no evidence in the record of that. . . . I've heard no evidence in the record that the accident even happened, for that matter." This commentary was not only directed to the testimony of the witness but clearly revealed the judge's view of all of the evidence presented by Vaughn up to that point as he attempted to prove the elements of his cause of action. In order to ensure that all litigants receive a fair trial, the courts adhere to the general principle that " trial court should scrupulously avoid commenting on the evidence in a case." Whitfield v. State, 452 So. 2d 548, 549 (Fla. 1984). This general principle has been codified in section 90.106, Florida Statutes (2003), which provides that " 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." The Law Revision Council's Note appended to this statute reveals that the basis for this enactment emanates from Hamilton v. State , 109 So. 2d 422, 424-25 (Fla. 3d DCA 1959), which explained:
The dominant position occupied by a judge in the trial of a cause before a jury is such that his remarks or comments, especially as they relate to the proceedings before him, overshadow those of the litigants, witnesses and other court officers. Where such comment expresses or tends to express the judge's view as to the weight of the evidence, the credibility of a witness, or the guilt of an accused, it thereby destroys the impartiality of the trial to which the litigant or accused is entitled.
The record reveals that the cumulative effect of the trial court's conduct in the instant case may have improperly influenced the jury. Vaughn argues that the remarks made by a juror who was forced to leave the trial early evidences the impact the trial court's remarks may have had on the jury:
THE COURT: Thank you, Mr. Nelson. I invited you here this morning to tell us about the problem that you are involved with in connection with your jury service. Would you tell these gentlemen and lady what you told the bailiff earlier today.
MR. NELSON: Yes, sir. First off, yesterday afternoon
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