Dragovich v. State, 65382

• Citation: 492 So.2d 350,11 Fla. L. Weekly 236
• Decision Date: 29 May 1986
• Docket Number: No. 65382,65382
• Parties: 11 Fla. L. Weekly 236 Alexander DRAGOVICH, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

Page 350

492 So.2d 350

11 Fla. L. Weekly 236

Alexander DRAGOVICH, Appellant, v. STATE of Florida, Appellee.

No. 65382.

Supreme Court of Florida.

May 29, 1986.

Rehearing Denied Aug. 29, 1986.

John Thor White, St. Petersburg, for appellant.

Jim Smith, Atty. Gen., and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

Appellant, Alexander Dragovich, was convicted of one count each of first-degree murder, armed robbery and armed burglary. The trial court sentenced appellant to consecutive forty year terms on the burglary and robbery convictions, retaining jurisdiction for one-third of each sentence. Pursuant to the jury's recommendation, the trial court imposed a sentence of death for the first-degree murder. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and affirm the armed robbery and armed burglary convictions and sentences. We also affirm the conviction of first-degree murder, but reverse the sentence of death and remand for a new sentencing proceeding before a jury.

A full recitation of the facts of this cause appears in our opinion reported as Echols v. State, 484 So.2d 568 (Fla.1985). It is sufficient for our purposes here to note that at this trial, the evidence established that the victim of the murder, Baskovich, was appellant's brother-in-law; the victim's wife and appellant's wife are sisters. Because of personal antipathy between appellant and the victim, and because of appellant's Through what we described in Echols as "excellent police work," the connection was established between appellant and Echols. Through leads provided by the investigation of Echols in this crime, the Clearwater police managed to record, on audio and video tape, three meetings between appellant and an undercover policeman which corroborated the existence of the contract between appellant and Echols for Baskovich's murder. Appellant was arrested at the conclusion of the third meeting.

desire to obtain control of the victim's estate, appellant hired Echols to murder Baskovich. Echols then hired Nelson to help in this venture. On April 20, 1982, Echols and Nelson entered the Baskovich's home and separated the husband and wife. While Mrs. Baskovich was confined in the bathroom, two lethal shots were fired into Mr. Baskovich's head. The intruders then robbed the victims taking jewelry and a substantial sum of cash. The evidence at trial established that Echols and Nelson were to be paid in part for their efforts with the proceeds from this robbery. The evidence at trial also established that Mrs. Baskovich was intentionally left alive.

Appellant's first allegation of error concerns the denial of his motion for disqualification of the trial judge, pursuant to section 38.10, Florida Statutes (1983). Appellant's motion and affidavits and counsel's certificate of good faith required by Florida Rule of Criminal Procedure 3.230(b), were premised on the fact that the judge at appellant's trial had previously presided over the trial of Echols and had therefore heard all of the evidence against appellant and concluded that this was a contract murder procured by appellant. As further grounds supporting disqualification, the motion recited that this judge had sentenced Echols to death in spite of the jury's recommendation of a life sentence and the judge would feel compelled, in the spirit of uniformity, to also sentence appellant to death.

The function of a trial judge when faced with a motion to disqualify himself is solely to determine if the affidavits present legally sufficient reasons for disqualification. Fla.R.Crim.P. 3.230(d). The test for legal sufficiency is whether the party making the motion "has a well-grounded fear that he will not receive a fair trial at the hands of the judge." State ex rel. Brown v. Dewell, 131 Fla. 566, 573, 179 So. 695, 697 (1938).

The essence of appellant's claim of legal sufficiency here is that prior to appellant's trial, this trial judge had formed a fixed opinion of appellant's guilt. In Nickels v. State, 86 Fla. 208, 98 So. 497 (1923), we rejected a similar claim, holding that a judge's fixed opinion of a defendant's guilt, and even his discussing it with others, was legally insufficient to mandate disqualification. Facts germane to the judge's undue bias, prejudice or sympathy are required. 86 Fla. at 224, 98 So. at 502. See also Suarez v. State, 95 Fla. 42, 115 So. 519 (1928) (mere allegations of prior adverse rulings in a case are legally insufficient).

Appellant points out that the "fixed opinion of guilt" rule is predicated in part on the fact that the jury, not the trial judge, will make the final determination of a defendant's guilt or innocence. Appellant urges that a capital sentencing case, where the trial judge is the ultimate arbiter of the life or death of a defendant, requires different considerations. We rejected a similar claim in Jones v. State, 446 So.2d 1059 (Fla.1984). There, the trial judge had complimented appellant's counsel on the "remarkable job" he had done at trial, and was the same judge who was to hear appellant's ineffective assistance of counsel claim, pursuant to Rule 3.850, Florida Rules of Criminal Procedure. It was the trial judge's denial of the motion to disqualify himself from hearing the rule 3.850 claim that was presented to this Court. Recognizing that "justice should be administered without fear of prejudice or partiality," id. at 1061, we, however, found the fact that merely because the judge had previously heard the evidence (i.e. counsel's performance at trial) and was to be the final arbiter on the rule 3.850 motion, were not, of themselves, legally sufficient facts Appellant's next claim of error concerns the publication to the jury of his invocation of his right to counsel. Following his arrest, and after full advisement of Miranda rights, ¹ appellant was interrogated by Detective Fire. The interrogation was video taped and was played for the jury. The interview and the taping ceased when appellant requested counsel; the portion of the tape containing appellant's request for counsel was excised before being played for the jury. During direct examination by the state, Fire testified concerning several of appellant's statements made while he was transporting appellant to jail. On cross-examination, appellant's counsel elicited from Fire the fact that none of these statements were taped even though Fire, as a detective, had a tape recorder available to him. On redirect by the state, Fire was allowed to testify, over defense objections, that these particular statements were not taped because appellant had requested counsel and the interrogation had ceased. Fire explained that he was legally required to cease questioning once appellant requested an attorney, and testified that the statements in question were spontaneously volunteered during transportation, and were unanticipated by Fire; therefore, no tape was made. Appellant's motion for mistrial at this point was denied.

                requiring disqualification.   Id.  See also Hope v. State, 449 So.2d 1315 (Fla. 2d DCA 1984) (fact that judge found defendant guilty of civil contempt legally insufficient to disqualify the judge from adjudication of a criminal contempt charge against the defendant);  State ex rel. Schmidt v. Justice, 237 So.2d 827 (Fla. 2d DCA 1970) (fact that the judge had presided in the first trial resulting in mistrial not sufficient to disqualify in the new trial).  We also hold here that without a showing of some actual bias or prejudice so as to create a reasonable fear that a fair trial cannot be had, affidavits supporting a motion to disqualify are legally insufficient.  There has been no such showing sub judice that appellant would not receive a fair trial before this judge.  Without some other factual basis than was presented in these affidavits, it must be presumed that the trial judges of this state will comply with the law.  In capital cases, we must assume that trial judges will fairly weigh the aggravating and mitigating circumstances unique to each defendant in determining the appropriate sentence
                

Appellant claims this testimony constituted unlawful comment on his right to counsel and he therefore should be granted a new trial. Simpson v. State, 418 So.2d 984 (Fla.1982), cert. denied, 459 U.S. 1156, 103 S.Ct. 801, 74 L.Ed.2d 1004 (1983); Willinsky v. State, 360 So.2d 760 (Fla.1978); Bennett v. State, 316 So.2d 41 (Fla.1975). Our review of the record however, shows that the comment in question here clearly comes within the purview of our decision in Jackson v. State, 359 So.2d 1190 (Fla.1978), cert. denied, 439 U.S. 1102, 99 S.Ct. 881, 59 L.Ed.2d 63 (1979), wherein we held that "[A]ppellant cannot initiate error and then seek reversal based on that error." Id. at 1194.

Defense counsel's questioning of Fire about appellant's untaped statements made during transportation created the obvious inference that, as all other statements were taped and these were not, Fire was being less than truthful about these particular statements. Appellant clearly "opened the door" for this testimony, Blair v. State, 406 So.2d 1103 (Fla.1981), and the state was entitled on redirect examination to have Fire explain to the jury why these statements were not taped. Jones v. State, 440 So.2d 570 (Fla.1983).

Appellant's final allegation of error affecting the guilt phase of this trial concerns the exclusion of jurors who were opposed to the death penalty. We have previously decided this issue adversely to appellant's position. Herring v. State, 446 So.2d 1049 (Fla.), cert. denied, 469 U.S. 989, 105 S.Ct. 396, 83 L.Ed.2d 330 (1984); Dobbert v. State, 409 So.2d 1053 (Fla.1982).

Finding no reversible error, we affirm appellant's conviction for first-degree murder.

PENALTY PHASE

In an attempt to prove the statutory mitigating factor of no significant history of prior criminal activity, ² appellant introduced into evidence a "rap sheet"...