Ex parte Lokos

• Decision Date: 10 June 1983
• Citation: 434 So.2d 831
• Parties: Ex parte Dezso John LOKOS. (Re Dezso John Lokos v. State). 81-945.
• Court: Alabama Supreme Court

Page 831

434 So.2d 831

Ex parte Dezso John LOKOS (Re Dezso John Lokos v. State).

81-945.

Supreme Court of Alabama.

June 10, 1983.

William H. Traeger, III and William T. Coplin, Jr., Demopolis, for petitioner.

Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for respondent.

BEATTY, Justice.

We granted certiorari to consider several questions arising out of the second trial of this ancient case. The facts and prior proceedings are set out in the opinions of the Court of Criminal Appeals, of the United States Fifth Circuit Court of Appeals, 625 F.2d 1258 (5th Cir.1980), and of this Court in the original companion case, Eaton v. State, 278 Ala. 224, 177 So.2d 444 (1965). After careful consideration of the issues raised, we affirm the decision of the Court of Criminal Appeals, 434 So.2d 818, although we modify its analysis in certain respects.

I

Lokos first argues that to uphold the trial judge's failure to recuse himself for bias or prejudice conflicts with earlier opinions of the Court of Criminal Appeals, this Court, and the United States Supreme Court. We agree with the Court of Criminal Appeals that in light of all the circumstances the letter written by the trial judge does not reveal actual, personal bias with respect to the issues for decision. In addition to the circumstances noted by Judge Barron, we would note that the assertions made in the letter concerned undisputed factual matters, i.e. that the crime was a gruesome one and that Lokos was a participant in it. At issue in the trial over which Judge Neilson presided was the nature of Lokos's participation and the validity of his defense of insanity. The trial judge's attitude toward Lokos as expressed in the letter is insufficient to show that he would not allow a fair trial with respect to the issues before him. Lokos cites Morgan County Commission v. Powell, 292 Ala. 300, 311, 293 So.2d 830 (1974), and Ex Parte White, 53 Ala.App. 377, 300 So.2d 420 (1974), as cases in which actual bias was shown and which require recusal here. However, the numerous and egregious improper acts of the trial judges in those cases are in no way comparable to what occurred here.

Although we agree that actual bias has not been established, we must also consider whether the trial judge's action created an appearance of impropriety that requires disqualification. The United States Supreme Court has held that "circumstances and relationships must be considered" in determining whether the need for appearance of justice "may sometimes bar trial by judges who have no actual bias," In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955). After viewing the case from this perspective, we do not believe that an appearance of impropriety exists in sufficient degree to justify reversal. Lokos has not pointed out any errors in the factual circumstances stated by Judge Barron, and these circumstances demonstrate that Judge Nielson's action was sufficiently unconnected from the decision he was to make so as to dispel impressions of bias that might otherwise develop. It would have been within his discretion to recuse himself to avoid an appearance of impropriety, but his decision to the contrary cannot be considered reversible error.

II

Regarding Lokos's contention that the trial judge made an improper comment in the presence of the jury, we agree that the statement was error. However, in his final instructions to the jury the trial judge cautioned:

"It is your duty, alone, to decide the facts, hear all of the evidence, and determine what, in fact, occurred, and apply those facts in accordance with the law as I instruct you on the law. Any rulings that I have made, or anything that I have said throughout the course of the trial, does not mean that I have an opinion one way or the other, because it's not my duty to have an opinion. It's your duty, and your duty to decide the case. Any statement that I have made indicated [sic] that I had an opinion one way or the other, I want to assure that is not my function in this case and it is not my duty. It is improper for me to comment on the evidence...."

In our view this cautionary instruction was sufficient to satisfy the standard set out in Richardson v. State, 403 So.2d 293, 295 (Ala.Cr.App.1981), quoting Griffin v. State, 90 Ala. 596, 8 So. 670, 673 (1890):

"The weight to be given to evidence is wholly within the province of the jury, and any invasion of this province by the court in its orders is error; and any statement by the court, however unintentional, made in the presence of the jury, calculated to control the jury in its consideration of the weight to be given to testimony, will work a reversal, unless it be clearly shown that such remarks have been explained and excluded from them."

It would have been preferable for a specific, limiting instruction to have been given at the time the remark was made. However counsel only moved for a mistrial and did not ask for such an instruction at the time. In these circumstances the error cannot be a basis for reversal.

III

With respect to the admission into evidence at the second trial of his inculpatory statements made at the time of his arrest in December 1963, Lokos now rests on the contention that the federal court's determination of his incompetence to stand trial in February 1964 precluded admission of the evidence in question. This is so, he contends, because at the second trial the trial court did not hear additional evidence from the state at the hearing on voluntariness, and because the state's expert witnesses at most testified that they did not know whether Lokos acted voluntarily in making these statements.

We recognize that in this case evidence indicating that Lokos was "incompetent to stand trial [is] obviously pertinent to the voluntariness of the confession" at the time of the arrest, Lokos v. Capps, 528 F.2d 576, 578 n. 4 (5th Cir.1976). We are bound by the finding of the Fifth Circuit in 1980 that Lokos was incompetent to consult with his attorney and stand trial in 1964. Therefore, the question is whether at the second trial there was evidence for concluding that Lokos was competent to voluntarily confess after his arrest in December 1963 even though he has been found incompetent to be tried in February 1964. In other words, was there evidence that Lokos's mental state could have declined during that time? The record contains evidence from which the trial court could have reached the conclusion that Lokos's condition declined from a state in which he did in fact voluntarily confess. In particular, expert witnesses testified that one would expect Lokos's condition to deteriorate in prison and that paranoid schizophrenia can go into remission and then reappear. This supports an inference that Lokos's condition worsened from the time that he made the statements in question to the time of the first trial. Moreover, the testimony of Dr. Bacon was in this proceeding highly equivocal when tested on cross-examination. Yet, the Fifth Circuit had relied primarily on Dr. Bacon's earlier and more positive testimony in finding that Lokos was incompetent to stand trial in February 1964, Lokos v. Capps, supra, 625 F.2d at 1264-67. In the hearing on voluntariness at the second trial, Dr. Bacon testified that Lokos's condition was much improved in 1981 despite years in prison without treatment. He testified that the change could have occurred between 1955, when he last saw Lokos, and December 1963, when Lokos made the statements. Our review of Dr. Bacon's testimony at the hearing on voluntariness, which was not available to the federal court in its decision, thus makes it clear that the trial court had a reasonable basis for its conclusion. As noted by the Court of Criminal Appeals, this basis was further supported by the testimony of the state's expert witnesses on rebuttal. From both that testimony and Dr. Bacon's, it is clear that a condition such as Lokos's...