Livingston v. StateLivingston v. State
Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
PER CURIAM.
The appellant, Connie Moore Livingston, appeals his conviction of first-degree murder and the imposition of the death sentence. We have jurisdiction.
The appellant, who is retarded, was charged with a brutal first-degree murder and sexual battery. The appellant‘s mother retained Charles A. Wade to represent her son. Prior to his arraignment, appellant filed a motion, verified by him, for the disqualification of Judge Erwin Fleet. In this motion, which was filed under
Wade filed a supporting affidavit which described several incidents establishing this alleged animosity between himself and Judge Fleet. As alleged, these incidents, which occurred over a period of twenty-five years, were: (1) that in 1958, Fleet, who had been appointed to a circuit judgeship in 1957, was defeated by Wade in an election for that position; (2) that during Wade‘s service as a circuit judge, Fleet appeared before him as a lawyer and angry words exchanged between them, resulting in Fleet‘s threat to petition for Wade‘s disqualification in future cases; (3) that after Fleet was elected to another circuit judgeship and Wade, who was still a circuit judge, became the administrative judge for the county, there were numerous crossings between the judges; (4) that after Wade retired from his circuit judge position and began his private law practice he was held in contempt of court by Judge Fleet in Wade‘s first contested hearing before him; and (5) that Judge Fleet had directed a grand jury to investigate a criminal matter
The appellant‘s motion for disqualification also contained two affidavits from individuals who stated that they were not related to the parties or the attorneys and that to the best of their knowledge it would be virtually impossible for Wade or any of his clients to get a fair and impartial hearing before Judge Fleet. On April 16, 1980, Judge Fleet denied the motion for disqualification, finding that the motion and accompanying affidavits were legally insufficient under the requirements of
First, we address the previous action in which Wade sought to disqualify Judge Fleet in all cases. In December, 1979, Wade filed a suggestion for writ of prohibition in the Supreme Court of Florida, seeking to have Fleet disqualified from hearing any case or matter involving Wade either as an individual or as an attorney. This Court, without opinion, denied the suggestion for the writ on February 14, 1980, approximately two months before the commencement of appellant‘s trial. See Wade v. Fleet, 383 So.2d 1204 (Fla. 1980).
The state contends that this Court‘s denial of the writ without opinion is controlling in this case. We realize that the allegations made by the appellant in his motion for disqualification in this case are basically the same as those made by Wade in his previously denied petition for writ of prohibition. It is important to note, however, that the relief sought by Wade in his prior petition was a general prohibition against Judge Fleet‘s hearing any of Wade‘s cases. That petition was not by a litigant seeking disqualification of the judge in any particular case, as appellant‘s motion does in the instant case.
This Court has clearly held that a lawyer‘s request for a general disqualification of a judge will not be granted. In Ginsberg v. Holt, 86 So.2d 650, 651-52 (Fla. 1956), we said that
[t]here is no provision in the statutes or the decisions for a blanket decree restraining a particular judge from hearing all cases in which a particular attorney may appear in his professional capacity as an officer of the court and we unreservedly decline to introduce such a novel and revolutionary procedure.
(Emphasis added.) Because our denial of the writ of prohibition in Wade v. Fleet was not accompanied by an opinion, we recognize that Judge Fleet, as well as the prosecution, could have construed the denial to mean that the allegations in the affidavit were insufficient to require the disqualification of Judge Fleet in any particular case arising in the future. Our prior decision in Wade v. Fleet, however, is not controlling and appellant‘s motion for disqualification must be considered on the basis of whether, under the circumstances, he has a reasonable fear that he would not receive a fair trial in this case.
This Court has recognized the sensitivity and seriousness involved whenever the issue of judicial prejudice is raised. We have stated that:
Prejudice of a judge is a delicate question to raise but when raised as a bar to the trial of a cause, if predicated on grounds with a modicum of reason, the judge against whom raised, should be prompt to recuse himself. No judge under any circumstances is warranted in sitting in the trial of a cause whose neutrality is shadowed or even questioned.
... .
... It is a matter of no concern what judge presides in a particular cause, but
it is a matter of grave concern that justice be administered with dispatch, without fear or favor or the suspicion of such attributes. The outstanding big factor in every lawsuit is the truth of the controversy. Judges, counsel, and rules of procedure are secondary factors designed by the law as instrumentalities to work out and arrive at the truth of the controversy. The judiciary cannot be too circumspect, neither should it be reluctant to retire from a cause under circumstances that would shake the confidence of litigants in a fair and impartial adjudication of the issues raised.
Dickenson v. Parks, 104 Fla. 577, 582-84, 140 So. 459, 462 (1932). This Court has also expressed the view that:
Every litigant, including the State in criminal cases, is entitled to nothing less than the cold neutrality of an impartial judge. It is the duty of courts to scrupulously guard this right of the litigant and to refrain from attempting to exercise jurisdiction in any matter where his qualification to do so is seriously brought in question. The exercise of any other policy tends to discredit and place the judiciary in a compromising attitude which is bad for the administration of justice.
State ex rel. Mickle v. Rowe, 100 Fla. 1382, 1385, 131 So. 331, 332 (1930).
In Florida, there are four separate expressions concerning the disqualification of trial judges, which are set forth in: (1) The Code of Judicial Conduct Canon 3-C; (2)
The Code of Judicial Conduct sets forth basic principles of how judges should conduct themselves in carrying out their judicial duties. Canon 3-C(1) states that [a] judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned... . This is totally consistent with the case law of this Court, which holds that a party seeking to disqualify a judge need only show “a well grounded fear that he will not receive a fair trial at the hands of the judge. It is not a question of how the judge feels; it is a question of what feeling resides in the affiant‘s mind and the basis for such feeling.” State ex rel. Brown v. Dewell, 131 Fla. 566, 573, 179 So. 695, 697-98 (1938). See also Hayslip v. Douglas, 400 So.2d 553 (Fla. 4th DCA 1981). The question of disqualification focuses on those matters from which a litigant may reasonably question a judge‘s impartiality rather than the judge‘s perception of his ability to act fairly and impartially.
When a party believes he cannot obtain a fair and impartial trial before the assigned trial judge, he must present the issue of disqualification to the court in accordance with the process designed to resolve this sensitive issue. The requirements set forth in
The facts alleged in the motion need only show that “the party making it has a well grounded fear that he will not receive a fair trial at the hands of the judge.” Dewell, 131 Fla. at 573, 179 So. at 697. “If the attested facts supporting the suggestion are reasonably sufficient to create such a fear, it is not for the trial judge to say that it is not there.” Parks, 141 Fla. at 518, 194 So. at 614. Further, “it is a question of what feeling resides in the affiant‘s mind and the basis for such feeling.” Dewell, 131 Fla. at 573, 179 So. at 697-98.
The state argues that the allegations made in appellant‘s motion for disqualification fail to show prejudice towards counsel to the degree that it is likely to prejudice appellant. This Court has expressly held that a judge may be disqualified due to prejudice towards an attorney where the prejudice “is of such degree that it adversely affects the client.” Ginsberg v. Holt, 86 So.2d 650, 651 (Fla. 1956). See also State ex rel. Fuente v. Himes, 160 Fla. 757, 36 So.2d 433 (Fla. 1948); Parks. Prejudice against a party‘s attorney can be as detrimental to the interests of that party as prejudice against the party himself. What is important is the party‘s reasonable belief concerning his or her ability to obtain a fair trial. A determination must be made as to whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial. As noted, the last incident involving Judge Fleet and Mr. Wade occurred just five months prior to the commencement of appellant‘s trial. Given the record in this case identifying the disputes which have arisen between the judge and the lawyer over a substantial period of time, we must conclude that the appellant could have a reasonable fear that he could not receive a fair trial. This is especially true in this prosecution for first-degree murder in which appellant‘s life is at stake and in which the circuit judge‘s sentencing decision is so important.
We have concluded that Livingston‘s verified motion and supporting documents were sufficient under
To aid in the retrial of this case, we address the question of the admissibility of testimony concerning an offense committed by appellant on March 29, 1980, in Pensacola, Florida. Appellant asserts that the testimony
We find it inappropriate to discuss any of the other issues raised in the case. For the reasons expressed we reverse appellant‘s conviction and sentence and remand for a new trial.
It is so ordered.
ADKINS, OVERTON, McDONALD and EHRLICH, JJ., concur.
BOYD, J., dissents with an opinion, in which ALDERMAN, C.J., concurs.
BOYD, Justice, dissenting.
I dissent to the judgment of the Court that a new trial is required because of appellant‘s pre-trial perception of prejudice against his lawyer on the part of the trial judge. I believe that a trial judge‘s denial of a motion for disqualification pursuant to
I agree with the majority‘s statement that
I also agree that by judicial interpretation the references in both the statute and the rule to prejudice in favor of or against a party have been expanded to encompass also prejudice in favor of or against an attorney for a party. State ex rel. Fuente v. Himes, 160 Fla. 757, 36 So.2d 433 (1948); State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613 (1939). When this Court denied Charles Wade‘s petition to prohibit Judge Fleet from sitting on any case in which Wade might appear as an attorney, Wade v. Fleet, 383 So.2d 1204 (Fla. 1980), we were following a long-standing precedent rejecting such a “blanket decree” as a “novel and revolutionary procedure.” Ginsberg v. Holt, 86 So.2d 650, 651-52 (Fla. 1956). Recognition of animosity toward a lawyer as a cause of prejudice against the lawyer‘s client does carry with it the danger, however, that although the lawyer may not be able to get a “blanket decree” of disqualification, he may be able to achieve the same result one case at a time. From the perspective of concern for the sound and efficient administration of justice, it may be far more reasonable, in the case of a lawyer who is going to transfer a well-grounded fear of prejudice to all of his clients, to require him to remove his practice to another circuit than to require the judge to recuse himself every time the lawyer appears in his courtroom.
I do not say that by not seeking prohibition the accused waives the right to be tried before an impartial judge. Such right is substantive and fundamental and abides with the accused throughout the proceedings. But the procedural right afforded by
It is interesting to note that something like the approach I am proposing has been widely utilized by the appellate courts of Florida in dealing with the issue of disqualification of trial judges for prejudice. When a trial judge‘s denial of a motion for disqualification is brought before the appellate court for review by means of a pre-trial petition for writ of prohibition, the courts tend to apply the rule strictly and inquire only into the sufficiency of the motion and supporting affidavits to state a well-grounded fear of partiality. See, e.g., Bundy v. Rudd; Dickenson v. Parks; State ex rel. Allen v. Testa, 414 So.2d 38 (Fla. 3d DCA 1982); Jackson v. Korda, 402 So.2d 1362 (Fla. 4th DCA 1981); State ex rel. Zacke v. Woodson, 399 So.2d 7 (Fla. 5th DCA 1981); State ex rel. Aguiar v. Chappell, 344 So.2d 925 (Fla. 3d DCA 1977). On the other hand, when defendants wait until after their trials to seek review of the orders of denial in conjunction with their appeals, the appellate courts tend to evaluate the claims of prejudice on the merits. See, e.g., Jones v. State, 411 So.2d 165 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 189, 74 L.Ed.2d 153 (1982); Tafero v. State, 403 So.2d 355 (Fla. 1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 694 (1982); Mikenas v. State, 367 So.2d 606 (Fla. 1978); Dempsey v. State, 415 So.2d 1351 (Fla. 1st DCA), review denied, 424 So.2d 761 (Fla. 1982); Van Fripp v. State, 412 So.2d 915 (Fla. 4th DCA 1982); Yesbick v. State, 408 So.2d 1083 (Fla. 4th DCA), review dismissed, 417 So.2d 331 (Fla. 1982).
I therefore conclude that by failing to seek appellate court prohibition of the judge‘s presiding over his trial, appellant has waived the right to have his motion evaluated under the standards set out in
I have carefully reviewed the entire record of appellant‘s trial. I conclude that the alleged mutual dislike of Judge Fleet and attorney Wade had no substantial effect on the conduct of the trial; the alleged prejudice of the judge against the lawyer was not visited upon the client in any significant manner discernible from the record. On the basis of this review of what actually happened I would reject appellant‘s demand for a new trial for violation of
The evidence showed that the victim was bludgeoned to death with a glass soft-drink bottle. Her sexual organs were violently molested. There was competent, substantial evidence for the jury to conclude that appellant was the perpetrator of these acts. The defendant‘s lawyer was allowed fair and ample opportunity to contest the state‘s interpretation of the evidence and to develop his theory of defense.
Appellant was properly found competent to stand trial and the procedure by which this issue was determined was fair and proper. The psychiatrists’ written reports were a proper basis for the judge‘s determination. Fowler v. State, 255 So.2d 513 (Fla. 1971). The psychiatrists found appellant to be mentally slow but competent to understand the proceedings.
There was evidence of an unrelated criminal attack committed by appellant. This evidence was properly admitted under Williams v. State, 110 So.2d 654 (Fla. 1959), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1960).
The appellant‘s confession was found through proper procedures to have been voluntarily given and was therefore properly admitted into evidence. All of appellant‘s other arguments on the admissibility of particular items of evidence and the fairness of the trial procedure are without merit.
My review of the sentencing proceeding reveals that it too was conducted in a constitutionally fair manner. As aggravating circumstances the court found that appellant had previously been convicted of a felony involving the use or threat of violence; that the murder was especially heinous, atrocious, or cruel; and that it was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. These findings were supported by the evidence.
The court found one mitigating circumstance as follows:
FINDING: From the evidence, the defendant, CONNIE LIVINGSTON, was under the influence of emotional disturbance when he committed the murder and sexual battery of which he was convicted. Previous psychological examinations showed evidence of diminished capacity of the defendant, but not to the extreme that it deprived him of the ability to form the intent to commit a premeditated homicide.
The court concluded that the aggravating circumstances outweighed the single mitigating circumstance found. This conclusion was reasonable and proper under the evidence.
I would affirm the convictions of first-degree murder and sexual battery and the sentence of death. I dissent to the order granting a new trial.
ALDERMAN, C.J., concurs.