Summary
holding no bias existed in sentencing, even though the defendant threatened to kill the judge
Summary of this case from Lodermeier v. ClassOpinion
No. 80SA395
Decided June 8, 1981. Rehearing denied July 6, 1981.
Original Proceeding
J. Gregory Walta, State Public Defender, Kenneth Dresner, Deputy, Barbara S. Blackman, Deputy, for petitioner.
J. D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy, Mary J. Mullarkey, Solicitor General, Jeffrey A. Weinman, Assistant Attorney General, for respondent.
En Banc.
This case is an original proceeding brought pursuant to C.A.R. 21. We issued a rule to determine whether the trial court abused its discretion or exceeded its jurisdiction when it denied the motion of the petitioner, Rexford Michael Smith, that the respondent judge disqualify himself from conducting a sentencing hearing because of alleged prejudice against the petitioner. Having concluded that the motion to disqualify is legally insufficient, we now discharge the rule.
The petitioner's verified motion to disqualify the judge was premised on section 16-6-201(1)(d), C.R.S. 1973 (1978 Repl. Vol. 8). The motion was supported by the affidavits of two credible persons who were not related by blood, adoption, or marriage to the petitioner. See section 16-6-201(3) and (5), C.R.S. 1973 (1978 Repl. Vol. 8).
Section 16-6-201(1)(d) provides that a judge is disqualified to hear a case if "[h]e is any way interested or prejudiced with respect to the case, the parties, or counsel." This ground for disqualification is identical to that set out in Crim. P. 21(b)(1)(IV). See People v. District Court, 192 Colo. 503, 560 P.2d 828 (1977).
The facts alleged in this case are as follows: The petitioner had pled guilty to robbery, section 18-4-301, C.R.S. 1973 (1978 Repl. Vol. 8). Upon leaving the courtroom on April 25, 1980, after his counsel had obtained a continuance of his sentencing hearing, the petitioner was overheard by a deputy sheriff saying, in a hostile tone, "That senile old motherfucker, he ought to be shot. I'll kill him." The deputy believed that petitioner was referring to the judge and informed the judge about the petitioner's statement. Later the same day, the deputy sheriff again overheard the petitioner say, "I'll shoot the motherfucker. His day is coming — maybe sooner than he thinks." The deputy included this incident in a report he prepared on the petitioner's behavior. Meanwhile, the judge contacted petitioner's counsel, told him in chambers what his client had said, and commented, "I think he would do it."
It is impossible to determine from the affidavits accompanying the motion whether the judge was informed about the petitioner's second statement prior to talking to defense counsel. The record does indicate that the deputy sheriff's incident report was included in a supplementation of the probation department's presentence investigation report.
The probation department recommended that the petitioner be remanded to the Department of Corrections. The department's report is not itself part of the record, and this C.A.R. 21 proceeding is not a review of the trial court's sentencing decision.
The trial court, in ruling on the legal sufficiency of the petitioner's motion, found that the petitioner's alleged threats and his capacity to carry them out would make no difference in its ultimate disposition of the case. It denied the motion and proceeded to sentencing.
The trial court's ruling was necessarily premised upon the legal sufficiency of the motion and affidavits. Such a determination is subject to the independent review of an appellate court. People v. District Court, supra, n. 1; People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915). The test of the legal sufficiency of a motion to disqualify a judge is whether the motion and affidavits state facts "from which it may reasonably be inferred that the respondent judge has a bias or prejudice that will in all probability prevent him or her from dealing fairly with the petitioner." Carr v. Barnes, 196 Colo. 70, 72, 580 P.2d 803, 804 (1978); People v. District Court, n. 1; Walker v. People, 126 Colo. 135, 248 P.2d 287 (1952); People ex rel. Burke v. District Court, supra. Unless a reasonable person could infer that the judge would in all probability be prejudiced against the petitioner, the judge's duty is to sit on the case. Walker v. People, supra.
"Prejudice" is not easily defined. Since it is a mental condition or status — a certain "bent of mind" [ People v. Botham, 629 P.2d 589, (Colo. 1981)] — it cannot be demonstrated, ordinarily, by direct proof. People ex rel. Burke v. District Court, supra. Prejudice in the present procedural context has been described by our court as "a leaning toward one side of a question involved, from other considerations than those belonging to it, or a bias in relation thereto which would in all probability interfere with fairness in judgment." Walker v. People, supra, at 146, 248 P.2d at 294, quoting People ex rel. Burke v. District Court, supra.
Prejudice must be distinguished from the sort of personal opinions that as a matter of course arise during a judge's hearing of a cause. The general rule of law is that what a judge learns in his judicial capacity is a proper basis for judicial observations, and that the use of such information is not the kind of matter that results in disqualification. United States v. Patrick, 542 F.2d 381 (7th Cir. 1976); United States v. Bernstein, 533 F.2d 775 (2d Cir. 1976); Davis v. Bd. of School Commissioners, 517 F.2d 1044 (5th Cir. 1975); United States v. Sclafani, 487 F.2d 245 (2d Cir. 1973), cert. denied, 414 U.S. 1023, 94 S.Ct. 445, 38 L.Ed.2d 313 (1973).
It must be presumed in this case that the judge was told about the petitioner's threats against him and also that he formed an opinion that the petitioner was capable of carrying such threats out. The facts set forth in affidavits supporting a motion to disqualify a judge are not subject to a trial court's inquiry, but are presumed to be true. Carr v. Barnes, supra; Walker v. People, supra; People ex rel. Burke v. District Court, supra. Petitioner argues that such a frame of mind in all probability would affect a judge's ability to evaluate the factors that must be weighed in making a sentencing decision, in particular, his ability to decide whether the petitioner should be incarcerated or granted probation. We do not find this inference reasonable.
At the hearing on his motion, the petitioner claimed that he had not made the statements attributed to him; but what the judge was told that the petitioner said, not the truth of his actual statements, is at issue here. Allegedly, the judge had formed an opinion about the petitioner's dangerousness prior to the sentencing hearing; and the petitioner argues that this opinion was caused by what the judge was told about petitioner's threats.
The petitioner's initial threat was not seen or heard by the judge, though it was made in the courtroom while court was in session. There is nothing inherently improper about such behavior being communicated to the trial judge. Indeed, the petitioner's behavior during judicial proceedings and while in custody may well become relevant facts for the court to consider as part of the factors it weighs in sentencing. The facts here provide no reasonable basis for concluding that the judge's presumed opinion about the petitioner's potential dangerousness was motivated solely by the deputy sheriff's reports. The petitioner's motion to disqualify and its accompanying affidavits do not support the inference that the judge leaned toward severity in sentencing from considerations that were irrelevant to his judicial decision making. The facts alleged do not demonstrate a bias that in all probability would interfere with the fairness of the judge's sentencing decision.
The deputy sheriff's incident report about the petitioner's alleged threats was incorporated in the probation department's presentencing report. The petitioner here was sentenced to a term of two and one-half years. This term is within the presumptive range of possible penalties for the commission of a class 4 felony, such as robbery. See section 18-1-105(1)(a), C.R.S. 1973 (1978 Repl. Vol. 8) (1980 Supp.).
Neither section 16-6-201, C.R.S. 1973 (1978 Repl. Vol. 8), nor Crim. P. 21(b) require disqualification of a judge on the basis of a party's subjective conclusion that the judge is not impartial because of acts or statements made by the party.
Because the motion and affidavits here are legally insufficient to show prejudice, we affirm the trial court's ruling dismissing the petitioner's motion.
Accordingly, the rule to show cause is discharged.
JUSTICE ERICKSON and JUSTICE DUBOFSKY specially concur in the result only.
JUSTICE LOHR dissents.