State v. Kennedy

429 S.E.2d 449 (1993) 110 N.C. App. 302

STATE of North Carolina
v.
Heather Miller KENNEDY.

No. 928SC257.

Court of Appeals of North Carolina.

May 18, 1993.

Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen. Isaac T. Avery, III, Raleigh, for the State.

Barnes, Braswell, Haithcock & Warren, P.A. by Glenn A. Barfield, Goldsboro, for defendant-appellant.

GREENE, Judge.

Defendant Heather Miller Kennedy appeals from a judgment entered 12 December 1991, based on a jury verdict convicting her of driving while impaired and from the trial court's denial of defendant's motion to recuse the trial judge.^[1]

Defendant was arrested 20 October 1990, and charged with driving while impaired. She was convicted in district court on 26 June 1991, and gave notice of appeal to the superior court. Prior to trial in the superior court, on 4 December 1991, defendant's attorney filed a motion that the trial judge recuse himself on the ground that he could not be impartial because

the Honorable Judge's wife was involved in an accident wherein she was seriously injured, and the person driving the [other] vehicle was at fault in the accident [and] was impaired.

The motion to recuse was accompanied by an affidavit from a local attorney containing the following:

That it is my belief ... that the [trial judge] has been especially requested to preside over this session of court [at which most defendants are charged with driving while impaired] ... because of his feelings toward Driving While Impaired offenders. I have been informed that the [trial judge's] wife was seriously injured in an automobile accident caused by an impaired driver. I believe that this has an adverse impact upon any person... convicted of Driving While Impaired while the [trial judge] is presiding....

Defendant entered a plea of not guilty in superior court on 11 December 1991. The trial judge heard argument on the motion to recuse, and defendant's attorney made a motion to have another superior court judge hear the motion to recuse, stating "that the Affidavit that has been presented along with the Motion [to recuse] ... present[s] such facts as a reasonable man would find would require Your Honor to refer the case to another Judge." The trial judge denied the motion to have another superior court judge hear the motion to recuse and denied the motion to recuse. The jury returned a verdict of guilty of driving while impaired.

The dispositive issue is whether the trial judge's alleged opinions regarding the crime of driving while impaired constitute proper grounds to require the judge to recuse himself.

Defendant asserts that she is allegedly a member of a class, those accused of driving while impaired, against which the trial judge is biased, and that this bias stems from the fact that the trial judge's wife was seriously injured by an impaired driver. In the alternative, defendant argues that even if these facts are not sufficient to show actual bias, they are enough to raise doubts in the mind of a reasonable person as to whether the judge could rule impartially, and, therefore, give rise to the appearance of partiality. We do not agree.

Both N.C.G.S. § 15A-1223 and Canon 3 of the Code of Judicial Conduct control the disqualification of a judge presiding over a criminal trial when partiality is claimed. State v. Fie, 320 N.C. 626, 627, 359 S.E.2d 774, 775 (1987).

North Carolina Gen.Stat. § 15A-1223 provides in pertinent part:

(b) A judge, on motion of the State or the defendant, must disqualify himself from presiding over a criminal trial or other criminal proceeding if he is:

(1) Prejudiced against the moving party or in favor of the adverse party;...

N.C.G.S. § 15A-1223(b)(1) (1988).

The Code of Judicial Conduct provides in pertinent part:

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:

(a) He has a personal bias or prejudice concerning a party ...

Code of Judicial Conduct, Canon 3(C)(1)(a) (1993).

The burden is on the party moving for recusal to "`demonstrate objectively that grounds for disqualification actually exist.'" In re Nakell, 104 N.C.App. 638, 647, 411 S.E.2d 159, 164 (1991), disc. rev. denied, 330 N.C. 851, 413 S.E.2d 556 (1992) (citation omitted). The moving party may carry this burden with a showing "`of substantial evidence that there exists such a personal bias, prejudice or interest on the part of the judge that he would be unable to rule impartially,'" id., or a showing that the circumstances are such that a reasonable person would question whether the judge could rule impartially. See Fie, 320 N.C. at 628, 359 S.E.2d at 775-76.

The "bias, prejudice or interest" which requires a trial judge to be recused from a trial has reference to the personal disposition or mental attitude of the trial judge, either favorable or unfavorable, toward a party to the action before him. See 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 21.4(b) (1984); Leslee Daugherty, State v. Fie: Determining the Proper Standard for Recusal of Judges in North Carolina, 65 N.C.L.Rev. 1138, 1142 (1987); see generally 46 Am. Jur.2d Judges §§ 167, 168, 169 (1969). "Bias or prejudice does not refer to any views a judge may entertain toward the subject matter involved in the case." 46 Am.Jur.2d at § 168. Accordingly, a trial judge's personal views on the particular crime for which a defendant is charged do not, without more, show that he is prejudiced or biased or give rise to a reasonable belief that the trial court could not rule impartially. Nor does the fact that a judge, for whatever personal reasons, views a particular type of crime as more serious or more deserving of punishment than other crimes give a reasonable person grounds to question whether the trial court can rule impartially. See United States v. Guglielmi, 615 F. Supp. 1506, 1511 (W.D.N.C.1985) (fact that trial judge had previously stated strong views critical of pornographers not grounds for recusal in trial of alleged pornographer); United States v. Allen, 633 F.2d 1282, 1294 (9th Cir.1980) (fact that trial judge personally viewed drug smugglers as "cancer" on society not ground for recusal in trial of drug smuggling defendant).

The defendant's motion and its supporting affidavit do not allege that the trial judge has any strong feelings about defendant herself. Rather, they suggest that the trial judge, for personal reasons, has strong feelings about the crime of driving while impaired. Such feelings, assuming arguendo that they do exist, are directed to the subject matter of the case and not to defendant herself. As such, they are not indicative of any bias against defendant, nor are they sufficient to give a reasonable person grounds to believe that the judge could not act impartially in the matter. Therefore, there was no error in the trial judge's failure to recuse himself. Having established that there were no facts presented to cause a reasonable person to doubt the trial judge's impartiality, there is also no error in the trial judge's failure to refer the motion to recuse to another judge. See State v. Crabtree, 66 N.C.App. 662, 665-66, 312 S.E.2d 219, 221 (1984) (where facts not shown to cause reasonable person to doubt impartiality, not error to fail to hold hearing on motion to recuse or to fail to refer motion to recuse to another judge).

Affirmed.

WELLS and WYNN, JJ., concur.

NOTES

[1] Defendant abandons all issues on appeal concerning the judgment and argues only the propriety of the trial court's denial of the motion to recuse.