STATE OF MISSOURI, Plaintiff-Respondent v. DANNY K. THOMAS

STATE OF MISSOURI, )
)
Plaintiff-Respondent, )
)
vs. ) No. SD32542
)
DANNY K. THOMAS, ) Filed: February 14, 2014
)
Defendant-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF MCDONALD COUNTY
Honorable John R. LePage, Associate Circuit Judge
AFFIRMED
This is a direct appeal from criminal convictions for second-degree murder
and armed criminal action. Danny K. Thomas ("Defendant") argues the trial
judge plainly erred in denying Defendant's motion seeking a change of judge for
cause. Defendant's argument is without merit, and his convictions and sentences
are affirmed.
Standard of Review
Defendant did not obtain a ruling on his motion for change of judge, and
he did not include this claim in his motion for new trial. Consequently, the claim
is not preserved for review. See State v. Bryant, 362 S.W.3d 46, 50 (Mo. App.
S.D. 2012). Under Rule 30.20,1 "plain errors affecting substantial rights may be
considered in the discretion of the court when the court finds that manifest
injustice or miscarriage of justice has resulted therefrom." Rule 30.20. Plain
error review involves a two-step analysis. State v. Smith, 293 S.W.3d 149, 151
(Mo. App. S.D. 2009). First the appellate court determines whether the trial
court committed "evident, obvious, and clear error affecting the defendant's
substantial rights[.]" Id. Only where such error appears will the appellate court
move on to the second step, during which the appellate court considers whether
"such plain error actually result[ed] in manifest injustice or a miscarriage of
justice[.]" Id.
Factual and Procedural Background
Defendant shot and killed his sister's fiancé. Defendant was charged with
first-degree murder and armed criminal action. He was arraigned and pled not
guilty on September 12, 2011. Defendant made a first motion for change of judge
pursuant to Rule 32.07(b) on September 20, 2011, which was sustained on
October 17, 2011. 2 Defendant filed a subsequent motion for change of judge on
December 5, 2011. In that motion, Defendant made the following allegations:
3. Defendant respectfully submits that the following issue could
cause ". . . an onlooker [to] . . . reasonably question whether
. . . " Judge LePage is impartial: a) a social relationship with
the longtime paramour of the deceased, Velda [sic] Rideout,
who is a witness in this case.
4. In addition, defendant states Judge LePage presided over a
civil suit filed against him and entered a judgment in favor of
the plaintiff.
1All rule references are to Missouri Court Rules (2013).
2Rule 32.07(b) states that "[i]n felony and misdemeanor cases the application must be filled out
not later than ten days after the initial plea is entered[,]" which was properly done on the first
motion for change of judge.
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5. Defendant states Judge LePage heard allegations against him
and ruled against him in regard to an application for
restraining order.
A hearing on the motion was scheduled to take place on January 27, 2012. The
docket entry for that date indicates the hearing was cancelled but does not give a
reason. The docket sheets do not thereafter reflect a ruling on the motion.
Defendant was tried by a jury. The jury found Defendant guilty of second-
degree murder and armed criminal action and recommended sentences of
thirteen years and three years respectively. Defendant filed a motion for new
trial but did not include a claim regarding his motion for change of judge. The
judge overruled Defendant's motion for new trial and sentenced Defendant in
accordance with the jury's verdict. Defendant appeals.
Discussion
Defendant argues the trial court plainly erred when it failed to grant
Defendant's motion for change of judge "because the motion raised allegations
which would cause the judge's impartiality reasonably to be questioned" as "the
motion alleged that (a) the judge was in a social relationship with the longtime
paramour of the deceased, who was a witness; (b) the judge presided over a civil
suit against appellant and ruled against him; and (3) [sic] the judge heard
allegations against appellant and ruled against him in regard to an application for
restraining order." This argument is without merit.
As Defendant's first motion for change of judge was properly sustained
under Rule 32.07, his second motion for change of judge is governed by Rule
32.09. Under Rule 32.09(c) nothing prohibits a judge from ordering a change of
judge "when fundamental fairness so requires[.]" Rule 32.09(c). "The rule is not
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limited to actual prejudice and also requires recusal when 'a reasonable person
would have factual grounds to find an appearance of impropriety and doubt the
impartiality of the court.'" Anderson v. State, 402 S.W.3d 86, 91 (Mo. banc
2013) (quoting State v. Smulls, 935 S.W.2d 9, 17 (Mo. banc 1996)). However,
"[a] 'disqualifying bias or prejudice must be one emanating from an extrajudicial
source and result in an opinion on the merits on some basis other than what the
judge learns from participation in the case."' Burgess v. State, 342 S.W.3d
325, 328 (Mo. banc 2011) (quoting Haynes v. State, 937 S.W.2d 199, 202 (Mo.
banc 1996)). Furthermore, "[t]here is a presumption that a judge acts with
honesty and integrity and will not preside over a trial in which he or she cannot
be impartial.'" Id. (quoting Worthington v. State, 166 S.W.3d 566, 579 (Mo.
banc 2005)).
None of the allegations in Defendant's motion for change of judge, even if
true, would create an appearance of impropriety. As for Defendant's suggestion
that the judge should have granted the motion because the judge had a social
relationship with a witness, the general rule is that "[a]n acquaintanceship
between a judge and a victim is not a basis for requiring the judge to disqualify."
State v. Fortner, 84 S.W.3d 507, 513 (Mo. App. S.D. 2002) (quoting State v.
Ayers, 911 S.W.2d 648, 651 (Mo. App. S.D. 1995)). There was no indication that
the judge's relationship in this case was anything more than a mere
acquaintanceship.
Defendant's remaining two allegations involve the judge's adverse rulings
against Defendant in other, unrelated court actions. However, "[s]ituations
where a judge has made adverse rulings against an individual or where there has
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been previous contact between a judge and a criminal defendant are not an
unusual event in the crowded schedules of trial judges and does not necessarily
establish bias." State v. Reeter, 848 S.W.2d 560, 564 (Mo. App. W.D. 1993).
Thus, "Missouri courts have consistently held that a judge's prior contacts with
the defendant or with the underlying proceeding[s] themselves or with the fact
that the court made adverse rulings against the defendant in a prior proceeding
do not necessitate disqualification." Id. at 565. Defendant's allegations did not
warrant relief.
As there is no evident, obvious, and clear error, this Court need not
consider whether there was manifest injustice or a miscarriage of justice. The
trial court did not plainly err in failing to grant Defendant's motion for change of
judge. Defendant's sole point is denied.
Decision
The trial court's judgment is affirmed.
MARY W. SHEFFIELD, J. - OPINION AUTHOR
GARY W. LYNCH J. - CONCURS
DON E. BURRELL, J. - CONCURS
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