State v. Walton
| Decision Date | 29 May 1985 |
| Docket Number | No. KA,KA |
| Citation | 469 So.2d 1204 |
| Parties | STATE of Louisiana v. Shawn G. WALTON. 3521. 469 So.2d 1204 |
| Court | Court of Appeal of Louisiana — District of US |
Ralph L. Barnett, Gretna, for plaintiff-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Patricia E. Black, Asst. Dist. Atty., New Orleans, for defendant-appellee.
Before SCHOTT, KLEES and ARMSTRONG, JJ.
This case has come before us on defendant's motion to appeal the trial court's denial of his motion to recuse the trial judge. Before reaching the merits of the appeal, however, we question whether our appellate jurisdiction extends to the trial court's denial of a motion by a defendant to recuse the trial judge.
LSA-C.Cr.P. Art. 684 provides that the defendant may not appeal prior to sentencing from a ruling recusing or refusing to recuse the trial judge. This mandates a dismissal of the appeal without further comment. However, the complete record is before us and defendant's appellate brief has been filed. Furthermore, Art. 684 specifically grants the state the right to apply for supervisory writs in the event the trial judge is recused over the state's objection or the state's motion to recuse the trial judge is denied. Comment (a) to this Article explains this is so because of the possibility of long delays with incarceration of a defendant who can not make bail between the time an appeal is granted and the time the recusation issue is decided by the appellate court. Because the same reasoning supports the right of a defendant to apply for supervisory writs from an adverse ruling on his motion to recuse we have resolved to treat his appeal and appellate brief as an application for supervisory writs.
Defendant was charged with possession of marijuana in violation of RS 40:966 along with co-defendant Darryl Butler. The latter pled guilty pursuant to RS 40:983 and in testifying at that hearing Butler stated that the marijuana in the console of the automobile where he and Walton (the present defendant) were apprehended belonged to him (Butler) and Walton had nothing to do with it. Butler said Walton never smoked it, and, in fact, neither one of them has smoked it in the car. The trial judge asked Butler, "How come the police said they had a strong smell of marijuana coming from inside the vehicle?" To which Butler replied he had no idea.
After the testimony the trial judge (Judge Wimberly) remarked that Butler "has a lot of courage, because I don't believe him, I tell you that much." After some colloquy with defense counsel the judge stated,
On the basis of these statements counsel moved to recuse the trial judge because Butler would be a witness in Walton's behalf and the judge had already determined he was not credible. The motion was heard by another judge of the court and denied.
In the recusation hearing before the second judge (Judge Oser), Judge Wimberly acknowledged that he made the foregoing statements at the earlier hearing and the following colloquy occurred:
EXAMINATION BY MR. BARNETT:
Q. Prior to the trial of Shawn Walton then, if it is set in your Court as a misdemeanor, which is a trial only by the Judge, you have predisposed yourself into committing on the record that you don't believe the co-defendant who will be our witness, both for the Motion to Suppress as well as on the trial of the matter. Is that not a fair statement?
A. No, it's not a fair statement. What I said at the time was that I did not believe the co-defendant Butler's testimony at that time. I may believe it at the trial. If there is a trial of Shawn Walton I may believe it, but at that time I did not believe that particular testimony, no.
Q. What you're saying then, if the testimony remains exactly the same you may believe that testimony a second time?
A. I don't know. I have no way of knowing until I observe the witness and his demeanor and what he says and how he says it. He may say something entirely different. I don't know this at this time and you don't know it either.
Q. I know, Your Honor, I heard him state this from the witness stand, and you stated, "I do not believe him." It's a simple statement.
A. Mr. Barnett, if the...
To continue reading
Request your trial
-
State v. Barker
...trial judge must set forth factual allegations in support of the motion to rebut the presumption of impartiality. State v. Walton , 469 So.2d 1204, 1205 (La. App. 4 Cir.1985). Improper remarks or the appearance of impropriety during the proceedings are not cause for recusal unless supported......
-
State v. Thompson
...interest must be of a substantial nature based on more than mere conclusory allegations. State v. Edwards, at 673; State v. Walton, 469 So.2d 1204 (La.App. 4 Cir.1985). If a party files a written motion for recusation and there is a valid ground for recusation set forth in the motion, the j......
-
State v. Mims
...of bias or prejudice, the claim must be of a substantial nature, based upon more than conclusory allegations. Id; State v. Walton, 469 So.2d 1204, 1206 (La.App. 4 Cir. 1985). The trial court conducted a hearing on the motion for recusal, during which Jake Lemmon, the court's minute clerk, t......
-
State v. D'Ambrosio
...Judge Corrigan formed an opinion, that would be no guarantee that he would believe Espinoza at the later trial. See State v. Walton (La.App.1985), 469 So.2d 1204, 1205-1206. Accordingly, we overrule defendant's first proposition of Defendant's second, third and twelfth propositions of law a......