JUNIOR LORENZO

v.

THE STATE OF FLORIDA

"Appellant, Junior Lorenzo, appeals a _conviction for Soliciting, Inducing, Enticing or Procuring a Woman to Commit Prostitution, Lewdness or Assignation in -violation of Florida Statute Section 796.07(2)(f). Lorenzo contends that the trial judge fundamentally erred by departing from the role of neutrality when the judge unnecessarily interjected himself into the adversarial process and advocated for the prosecution. Upon review ofthe transcript, we find that Lorenzo is entitled to a new trial based on the trial judge’s participation during the trial. \ _ M FtteoaFoRtas‘cca-s i NOT FINAL UNTIL rnvts M APR ,5 PH 3_ 32 -o F wists-.eatcu:r . . as-s§5=,qc§;r's. ‘t " \z:r='":t ea-fit ‘ ‘\§ :3}. ‘ Q'.-fig‘ 7. \"\\§ K'-I I r

EXPIRES TO FILE MOTION

FOR REHEARING, AND IF

FILED, DISPOSED OF. IN THEN SIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT lN AND

FORMIAMI-DADE COUNTY, FLORIDA

.

APPELLATE DIVISION

~ JUNIOR LORENZO, ' - CASE N0.: 13-232 AC ' ‘ Appellant, A LOWER TRIBUNAL NO.: M130129l6 we - V ' Y -.- STATE OF FLORIDA, " Appellee. Opinion filed '________________________,2015. - _ . On appeal from the County Court for Miami-Dade County, Florida, Judge Edward Newman. Marcia‘ Silvers, Esq., for Appellant. ' “ _ Joel Rosenblatt, Assistant State Attorney and Mansooruddin Ahmed, Assistant State‘ Attorney, for Appcllee. _ Before ZAYAS, SANTOVENIA and ZILBER, II.

ZILBER, M., J.

- "Appellant, Junior Lorenzo, appeals a _conviction for Soliciting, Inducing, Enticing or Procuring a Woman to Commit Prostitution, Lewdness or Assignation in -violation of Florida Statute Section 796.07(2)(f). Lorenzo contends that the trial judge fundamentally erred by departing from the role of neutrality when the judge unnecessarily interjected himself into the adversarial process and advocated for the prosecution. Upon review ofthe transcript, we find that Lorenzo is entitled to a new trial based on the trial judge’s participation during the trial. [*2] -====.=1=.-=r=.¢=—~.:mw=.4 At the trial, the States only witness, Detecti e‘-~ —~ M“ wr M ~ * ~~ ' - ta Zapata, testi ‘“ r sue was posing as a prostitute when Lorenzo flagged her down into the parking lot where he then asked her “how much was it <1‘.re (U EB CD II ._. II‘?nct. r-1+:r'n I‘-‘I- for a blowjob." Under questioning by the prosecutor, the detective testified, in pertinent part, as follows: STATE: What did he ask you‘? WITNESS: He asked, how much was it for a blow job. " STATE: Did you respond? WITNESS: I asked him, well how much money did he have. He stated thirty dollars. After the prosecutor completed her direct examination of the detective, the trial judge questioned Lorenzo regarding what, if any, portion of the detectii/e’s testimony was being disputed by him.' Thereafter, the trial judge appeared to cross-examine the detective and _the prosecutor followed up with additional questions for the detective. When the prosecutor stated she had no further questions, the trial judge observed that there was a difference between a mere inquiry and an offer, questioned the detective, and elicited the following testimony: WITNESS: We are flagged down. I-Ie did flag me down, at which I drove into the parking lot. I walked over, because he continued to flag me down. COURT: Sure. WITNESS: He then inquired how much was it for, you know, oral sex. I asked him how much money did he have. It was a conversation. I-le said thirty dollars. COURT: It has to be something like, I offer you thirty dollars for oral sex. And then you have to say- - WITNESS: Well he responded how much money he had for that oral sex. I asked him how much money he had, and he said, well, how much about thirty dollars for oral sex. At which time he then said he wanted to go across the street to the actual hotel- COURT: He said to you, how much, how about thirty dollars for oral sex? WITNESS: Yes. I asked him how much did he have. COURT: Do you have any question about that? That qualifies as an offer if that is true. Lorenzo never objected to the trial judge’s questions or comments. After the trial judge finished questioning the detective, Lorenzo was sworn in and testified. The trial judge found A This Court does not reach the issue of whether the trial judge erred in his questioning of Lorenzo. who was unswom at the time. - \ -====.=1=.-=r=.¢=—~.:mw=.4 I l I On May 15, 2013, Lorenzo proceeded to a bench trial as a pro-se defendant. At the trial, the States only witness, Detecti e‘-~ —~ M“ wr M ~ * ~~ ' - ta Zapata, testi ‘“ r sue was posing as a prostitute when Lorenzo flagged her down into the parking lot where he then asked her “how much was it <1‘.re (U EB CD II ._. II‘?nct. r-1+:r'n I‘-‘I- for a blowjob." Under questioning by the prosecutor, the detective testified, in pertinent part, as follows: STATE: What did he ask you‘? WITNESS: He asked, how much was it for a blow job. " STATE: Did you respond? WITNESS: I asked him, well how much money did he have. He stated thirty dollars. After the prosecutor completed her direct examination of the detective, the trial judge questioned Lorenzo regarding what, if any, portion of the detectii/e’s testimony was being disputed by him.' Thereafter, the trial judge appeared to cross-examine the detective and _the prosecutor followed up with additional questions for the detective. When the prosecutor stated she had no further questions, the trial judge observed that there was a difference between a mere inquiry and an offer, questioned the detective, and elicited the following testimony: WITNESS: We are flagged down. I-Ie did flag me down, at which I drove into the parking lot. I walked over, because he continued to flag me down. COURT: Sure. WITNESS: He then inquired how much was it for, you know, oral sex. I asked him how much money did he have. It was a conversation. I-le said thirty dollars. COURT: It has to be something like, I offer you thirty dollars for oral sex. And then you have to say- - WITNESS: Well he responded how much money he had for that oral sex. I asked him how much money he had, and he said, well, how much about thirty dollars for oral sex. At which time he then said he wanted to go across the street to the actual hotel- COURT: He said to you, how much, how about thirty dollars for oral sex? WITNESS: Yes. I asked him how much did he have. COURT: Do you have any question about that? That qualifies as an offer if that is true. Lorenzo never objected to the trial judge’s questions or comments. After the trial judge finished questioning the detective, Lorenzo was sworn in and testified. The trial judge found A This Court does not reach the issue of whether the trial judge erred in his questioning of Lorenzo. who was unswom at the time. - \ [*3] Lorenzo guilty of the charged offense and granted withhold of adjudication with special Ch 5..CL. $3 conditions. Lorenzo timely “ " notice of appeal. “Every criminal defendant is entitled to a proceeding presided over with cold neutrality by an impartial judge, particularly when the judge also acts as the finder of fact.” Sears V. Stale. 889 So. 2d 956, 959 (Fla. 5th DCA 2004). Yet, “[t]his fundamental precept does not foreclose a trial judge from asking questions to ascertain the truth or to clarify issues. There is no bright—line test to determine when a judge crosses the line and departs from the role of impartial magistrate. The question is fact~intensive, and its resolution dependent upon the circumstances of each case.” Gerali L’. State, 50 So. 3d 727, 729 (Fla. 5th DCA 20l0). I-Iowever, a “court may not ask questions or make comments in an attempt to supply essential elements to the States case.” R. (). v. Slate. 46 So. 3d 124, I26 (Fla. 3d DCA 2010). “Further, the trial judge“s words or actions ‘should not lean to the prosecution or defense lest it appear that his neutrality is departing from the center.’ " Id. at 126, (citing to Riddle v. Stale, 755 So. 2d 771, 773 (Fla. 4th DCA 2000)); See Gerali. 50 So. 3d at 729 (“A judge should not appear to take on the role of a prosecutor.")_; Williams v. Stare. 901 So. 2d 357, 359 (“The trial judge serves as a neutral arbitrator in the proceedings and must not enter th “er side."⁴ (‘D 14'“to‘-<5.‘ CT‘<1 Elli. <1‘. C3(IQ P-F,.... “E3 be 11'4-CD <2‘F-J:_. 5;‘ D 3 Nevertheless, “[i]n order to preserve improprieties of a trial judge for appellate review. an objection must be made contemporaneously with the prejudicial conduct or comments.” Johnson v. State, I14 So. 3d I012, I013-I⁴ (Fla. 5th DCA 2012). If the party does not object to the trial court’s questioning, the issue becomes one of fundamental error. Gerali, 50 So. 3d at 729. "Fundamental error has been defined as error that ‘reaches down to the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ " .]0h/mm, I14 So. 3d at I014, (citing to Rimmer v. Stare, 825 So. 2d 304, 323 (Fla. 2002) (quoting Kilgore v. Stare, 688 So. 2d 895, 898 (Fla. l996)). Although not every act or comment with potential to be interpreted as demonstrating less than total neutrality on the part of the trial judge will be deemed fundamental error, “[a] trial judge who assumes the role of a prosecutor deprives the defendant of due process and commits fundamental error that may be raised for the first time on appeal.” Id. at 1014-10l7._ Lorenzo guilty of the charged offense and granted withhold of adjudication with special Ch 5..CL. $3 conditions. Lorenzo timely “ " notice of appeal. “Every criminal defendant is entitled to a proceeding presided over with cold neutrality by an impartial judge, particularly when the judge also acts as the finder of fact.” Sears V. Stale. 889 So. 2d 956, 959 (Fla. 5th DCA 2004). Yet, “[t]his fundamental precept does not foreclose a trial judge from asking questions to ascertain the truth or to clarify issues. There is no bright—line test to determine when a judge crosses the line and departs from the role of impartial magistrate. The question is fact~intensive, and its resolution dependent upon the circumstances of each case.” Gerali L’. State, 50 So. 3d 727, 729 (Fla. 5th DCA 20l0). I-Iowever, a “court may not ask questions or make comments in an attempt to supply essential elements to the States case.” R. (). v. Slate. 46 So. 3d 124, I26 (Fla. 3d DCA 2010). “Further, the trial judge“s words or actions ‘should not lean to the prosecution or defense lest it appear that his neutrality is departing from the center.’ " Id. at 126, (citing to Riddle v. Stale, 755 So. 2d 771, 773 (Fla. 4th DCA 2000)); See Gerali. 50 So. 3d at 729 (“A judge should not appear to take on the role of a prosecutor.")_; Williams v. Stare. 901 So. 2d 357, 359 (“The trial judge serves as a neutral arbitrator in the proceedings and must not enter th “er side."⁴ (‘D 14'“to‘-<5.‘ CT‘<1 Elli. <1‘. C3(IQ P-F,.... “E3 be 11'4-CD <2‘F-J:_. 5;‘ D 3 Nevertheless, “[i]n order to preserve improprieties of a trial judge for appellate review. an objection must be made contemporaneously with the prejudicial conduct or comments.” Johnson v. State, I14 So. 3d I012, I013-I⁴ (Fla. 5th DCA 2012). If the party does not object to the trial court’s questioning, the issue becomes one of fundamental error. Gerali, 50 So. 3d at 729. "Fundamental error has been defined as error that ‘reaches down to the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ " .]0h/mm, I14 So. 3d at I014, (citing to Rimmer v. Stare, 825 So. 2d 304, 323 (Fla. 2002) (quoting Kilgore v. Stare, 688 So. 2d 895, 898 (Fla. l996)). Although not every act or comment with potential to be interpreted as demonstrating less than total neutrality on the part of the trial judge will be deemed fundamental error, “[a] trial judge who assumes the role of a prosecutor deprives the defendant of due process and commits fundamental error that may be raised for the first time on appeal.” Id. at 1014-10l7._