Brand v. Com., 95-CA-002188-MR

• Citation: 939 S.W.2d 358
• Decision Date: 21 February 1997
• Docket Number: No. 95-CA-002188-MR,95-CA-002188-MR
• Parties: John S. BRAND, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Court of Appeals of Kentucky

Page 358

939 S.W.2d 358

John S. BRAND, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 95-CA-002188-MR.

Court of Appeals of Kentucky.

Feb. 21, 1997.

Jerry Anderson, Lexington, for Appellant.

A.B. Chandler, III, Attorney General, Dina Abby Jones, J. Kirk Ogrosky, Assistant Attorneys General, Frankfort, for Appellee.

Before EMBERTON, MILLER and SCHRODER, JJ.

OPINION

EMBERTON, Judge.

The appellant, John S. Brand, pleaded guilty to the charges of burglary in the third degree and two counts of harassing communications and was sentenced to four years in the penitentiary. He alleges that the trial court erred in overruling his motion for recusal based on the trial court's knowledge of the victim impact statements--which were stricken from the record--and in admitting the testimony of the victims during the sentencing phase.

Appellant had burglarized the home of his former wife, Jennifer Burton, and that of her boyfriend, Todd Wade. He also had made harassing phone calls to Wade and Burton. Pursuant to a plea agreement, one count of burglary was dismissed and appellant was sentenced to four years.

Prior to sentencing, the Commonwealth submitted to the court victim impact statements by Wade and Burton detailing their losses and the emotional impact of appellant's actions on their lives. The appellant objected to admission of the statements into the record and moved the trial judge to recuse herself alleging that her knowledge of the contents of the statements was prejudicial. The trial court sustained appellant's motion to strike the statements but denied the motion for recusal. However, at the sentencing hearing the trial court permitted Wade and Burton to testify regarding the emotional and financial impact of appellant's crimes.

We hold that the trial judge did not err in refusing to recuse herself. The burden of proof required to demonstrate that recusal of a trial judge is mandated is an onerous one. It must be shown that the trial judge is prejudiced to a degree that she cannot be impartial. Johnson v. Ducobu, Ky., 258 S.W.2d 509 (1953); Woods v. Commonwealth, Ky., 793 S.W.2d 809 (1990). Appellant's motion for recusal in this case is specious. First, the trial court excluded the evidence to which appellant objects. We believe such holding indicative not only of her impartiality, but that she did not consider the statements at the time of sentencing. ¹ Additionally although the appellant claims that he was a candidate for a probated sentence, the sentence imposed was in accord with the Commonwealth's recommendation pursuant to the plea agreement.

Appellant argues that burglary in the third degree is a victimless crime, and therefore, Burton and Wade should not have been permitted to testify. Appellant's rather tenuous position rests on Ky.Rev.Stat. (KRS) 421.500 and its definition of "victim." The...