Lokos v. State, 2 Div. 310

• Decision Date: 29 June 1982
• Docket Number: 2 Div. 310
• Citation: 434 So.2d 818
• Parties: Dezso John LOKOS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 818

434 So.2d 818

Dezso John LOKOS v. STATE.

2 Div. 310.

Court of Criminal Appeals of Alabama.

June 29, 1982.

Rehearing Denied July 27, 1982.

William T. Traeger, III and William T. Coplin, Jr., Demopolis, for appellant.

Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for appellee.

BARRON, Judge.

First degree murder; sentence, life imprisonment.

The sufficiency of the evidence is not raised on appeal. As appellant points out in his brief, the facts which gave rise to this eighteen and one-half year old case are ably set forth in the companion case of Eaton v. State, 278 Ala. 224, 177 So.2d 444 (1965), and need not be restated here. We point out that the case is before this court on remand after appeal following directions that a writ of habeas corpus issue, subject to the State's right to retry appellant within a reasonable time. Lokos v. Capps, 625 F.2d 1258 (5th Cir.1980).

I

Appellant insists the trial judge erred in denying his written motion requesting that the trial judge withdraw from trying the case due to interest, bias, or prejudice on his part. Appellant's assertion of alleged bias is supported solely by a letter written by the trial judge on July 2, 1979, prior to the reversal of appellant's case by the federal court. The substance of the letter, addressed to the director of the Board of Pardons and Paroles, appears in the record as follows:

"Dear Mr. Williams:

"I strongly object to Dezso Lokos being granted parole when he is considered in September of 1979. Mr. Lokos was one of the participants in one of the most gruesome murders ever committed in this State.

"Yours very truly,"

At the pretrial hearing on appellant's motion, appellant's counsel presented no additional evidence and relied entirely on the contents of the letter. In explanation of his motivation in writing the letter, the trial judge made this statement:

"THE COURT: All right; for the record, I did, in fact, write a letter to the Board of Pardons and Parole, July 2, 1979, and the letter that is attached to the Motion I did write and sign. I did not participate in the trial of the case the first time. I did not know on July 2, 1979, that there was pending an appeal. I thought that the individual was convicted and had been serving time in the penitentiary. I did not know there was any appeal for any consideration by any court whatsoever; and that at the time I wrote the letter objecting to his parole it was my opinion that he was not entitled to parole because he had been convicted of murder. To my knowledge it was the first time he had been considered by the Board of Pardons and Parole. I don't have any bias or prejudice against this defendant anymore than I do against any other defendant that comes into court. And I don't think that just because I wrote a letter objecting to his parole disqualifies myself.

"I am aware there is strong feeling in the community of Sumter County about Mr. Lokos being granted parole and that was the reason I wrote this letter, because numerous citizens had made statements to me in the past that they would object to him receiving parole because of the gruesome murder. I am aware that a delegation of citizens from this county have been to the Board of Pardons and Parole in the past. I did not participate in any manner whatsoever--proceedings that I was aware; therefore, I wrote the letter.

"Based on all of the considerations, I do not feel that I am disqualified in this case because of the letter I wrote. The letter was written because of the conversations and the statements that had been made to me by the citizens of Sumter County."

A motion to recuse must be addressed to the judge challenged. The ruling of that judge on the motion will not be reviewed on appeal in the absence of clear evidence of prejudice or bias. Slinker v. State, 344 So.2d 1264 (Ala.Cr.App.1977). The prejudice or bias against the appellant required to disqualify the judge must be of a personal nature, as opposed to a judicial bias. Seibold v. State, 382 So.2d 1141 (Ala.Cr.App.1979), cert. denied, 382 So.2d 1146 (Ala.1980); Pannell v. State, 356 So.2d 219 (Ala.Cr.App.1977), cert. denied, 356 So.2d 222 (Ala.1978); Johnson v. State, 335 So.2d 663, (Ala.Cr.App.), cert. denied, 335 So.2d 678 (Ala.1976), cert. denied, 429 U.S. 1026, 97 S.Ct. 649, 50 L.Ed.2d 629 (1976); Slinker, supra, Canon 3 A(5), Alabama Canons of Judicial Ethics.

The words bias and prejudice, as used in this context, refer to the mental attitude or disposition of the judge toward the defendant himself, and not to the judge's views regarding the crime with which the defendant is charged. In Re White, 53 Ala.App. 377, 300 So.2d 420, cert. denied, 293 Ala. 778, 300 So.2d 439 (1974). The judge's remarks, quoted supra, reveal his post conviction letter was motivated by both his judicial attitude and the community's attitude toward the deplorable nature of the crime of murder. We cannot say the letter was written with any personal bias toward appellant as the focus of the judge's recommendation. Also, this recommendation was based upon a presumably legal conviction obtained in a court of law, and not upon a premature prejudgment of guilt based upon information gained outside of the protection of the courts. White, supra. No alignment of the trial court with the prosecution against this appellant in the present trial is demonstrated by this letter. Any possible doubt of the judge's impartial attitude created by the letter was removed by his explanation of his motivation in writing the letter. The evidence presented by appellant simply fails to establish the clear showing of prejudice required to mandate the reversal of the trial judge.

II

Appellant cites an allegedly improper comment made by the trial judge as error requiring reversal. The comment complained of appears in the colloquy below:

"MR. COPLIN: Your Honor, we're not asking this person to explain--we know he's getting paid by the State, but we just want him to please answer our questions: That's all we want him to do.

"THE COURT: The State's paying me too. Let's go ahead. Please, just respond to his questions.

"MR. COPLIN: We make a motion for a mistrial.

"THE COURT: Overruled."

Appellant alleges the court's comment implied a partiality on the part of the judge, appeared to vouch for the credibility of the witness, and impinged upon the credibility of appellant's attorney.

Unless allegedly prejudicial remarks by the trial court are objected to, the remarks are not subject to review except when they are grossly improper. There must be either an objection, a motion to exclude, or a motion for the jury to disregard the statement before error will be preserved. Carpenter v. State, 400 So.2d 417 (Ala.Cr.App.), cert. denied, 400 So.2d 427 (Ala.1981). While a particular remark by the trial judge may be open to question, in order for it to amount to the grossly improper error requiring reversal, it must have influenced the result of the case. McCovery v. State, 365 So.2d 358 (Ala.Cr.App.1978). The judge's comment, when taken in context with the remarks of appellant's counsel, does not rise to this level. It is clear from the record that appellant made no specific objection to the remark, nor did he request its exclusion. While appellant did move for a mistrial, no ground for the requested mistrial was stated, nor was the trial court directed to any error on its part. A mistrial may only be granted on manifest necessity or if required by the ends of justice. McCovery, supra. Such is not the case here. There is no error in the state of the record as here presented.

III

Appellant contends the trial court erred in allowing into evidence inculpatory statements made by appellant, both at the time of his arrest and on the witness stand in two prior trials.

This case was originally tried prior to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and hence under Jenkins v. Delaware, 395 U.S. 213, 89 S.Ct. 1677, 23 L.Ed.2d 253 (1969); the Miranda standards per se are not applicable to extrajudicial confessions upon retrial. Rather, the admissibility of the statements is to be determined by the totality of the circumstances surrounding the confession. Grant v. Wainwright, 496 F.2d 1043 (5th Cir.1974). This test, grounded upon the policies of the privilege against self-incrimination, looks to all surrounding circumstances to determine whether impermissible coercive forces applied by law enforcement officials cause the defendant's free will and rational intellect to be overborne, hence rendering his confession involuntary. Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966); Grant, supra; Beecher v. Alabama, 408 U.S. 234, 92 S.Ct. 2282, 33 L.Ed.2d 317 (1971). It is a substantive test of voluntariness which must take into specific account any failure to advise the accused of his privilege against self-incrimination or to allow him access to outside assistance. Jenkins, supra. As well, the appellant's mental state, or sanity, at the time of the confession is an important factor to be considered. Lokos v. Capps, 528 F.2d 576 (5th Cir.1976). Appellant contends the trial court did not hold a sufficient hearing to determine appellant's mental stability and sanity at the time he made the extrajudicial confessions. He asserts there was no evidence presented to the court of any professional psychiatric diagnosis of appellant's sanity and state of mind at the time of his arrest upon which the trial court could have reached an informed decision. While appellant does not waive any contention of other forces affecting the voluntariness of the confession, the thrust of his argument is directed towards appellant's alleged mental incapacity to give a voluntary confession at the time of his arrest.

Our review of the transcript reveals that appellant's contention that the trial court failed to hold a proper and sufficient voluntariness hearing, taking into...