Adams v. State, CR

• Decision Date: 07 July 1980
• Docket Number: No. CR,CR
• Citation: 601 S.W.2d 881,269 Ark. 548
• Parties: Carl Fax ADAMS, Appellant, v. STATE of Arkansas, Appellee. 79-189.
• Court: Arkansas Supreme Court

Page 881

601 S.W.2d 881

269 Ark. 548

Carl Fax ADAMS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 79-189.

Supreme Court of Arkansas.

July 7, 1980.

[269 Ark. 549] Mickey Buchanan, Ashdown, for appellant.

Steve Clark, Atty. Gen. by Ray Hartenstein, Asst. Atty. Gen., Little Rock, for appellee.

OPINION

CORE, BEN, Special Justice.

This appeal requires this Court to decide several questions relating to the interpretation and application of the Code of Judicial Conduct. That Code was promulgated by the House of Delegates of the American Bar Association on August 16, 1972, and was declared by this Court to constitute proper standards for conduct of the judiciary for the State of Arkansas. This was done by per curiam order (Justice Byrd dissenting), 255 Ark. 1075, 493 S.W.2d 422 (Appendix) (1974). We have since considered the Code in two decisions, Edmonson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978) (reversed on other grounds) and Braswell v. Gehl, 263 Ark. 706, 567 S.W.2d 113 (1978) (reversed on other grounds).

The circumstance which makes the Code pertinent in this case is that the Appellant, Carl Fax Adams, was charged by prosecuting attorney information with two serious felonies, arraigned on the same and pleaded guilty, in a proceeding wherein the prosecuting attorney was the nephew of the presiding judge. The nephew-uncle relationship is one which falls within Canon 3 C and the Circuit Judge did not disqualify and neither did he follow the procedure prescribed by Canon 3 D. No request was ever made at any stage of the proceeding by the Appellant that the Judge disqualify or comply with Canon 3 D and no objection was made at any stage to his failure to do so.

We hold that Canon 3 C is applicable in criminal cases as well as civil cases, that it is applicable at the arraignment stage of a criminal proceeding, that it applies even though the prosecuting attorney and circuit judge each is a duly elected public official, that no request to disqualify and no objection for failure to disqualify is necessary to be made either by a trial attorney or by a party representing himself, that the trial judge must take the initiative to disqualify or, in the alternative, to comply with the procedure set out in Canon 3 D, that this Court can, on its own initiative, examine the record to notice compliance or noncompliance, and that failure to comply is reversible error. Accordingly, we reverse and remand this case with instructions that the Appellant be arraigned again on the charges, such proceedings and subsequent proceedings to be consistent with this opinion.

Canon 3 C provides in pertinent part as follows:

C. DISQUALIFICATION.

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

(d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(ii) is acting as a lawyer in the proceeding;

In our opinion in Edmonson v. Farris, supra, which was rendered May 22, 1978, we announced the following caveat:

"In cases arising in the trial court after this date, we construe our rule to require the judge to note his disqualification without any request by a trial lawyer."

If a party is not represented by a lawyer, then our statement would necessarily be applicable to the party and no such request would be required of him.

In Edmonson v. Farris, supra, we noted the alternative to disqualification provided in Canon 3 D, which reads:

A judge disqualified by the terms of Canon 3C(1)(d) may, instead of withdrawing from the proceeding, disclose on the record the basis of his disqualification. If, based on such disclosure, the parties and lawyers, independently of the judge's participation, all agree in writing that the judge's relationship is immaterial or that his financial interest is insubstantial, the judge is no longer disqualified, and may participate in the proceeding. The agreement, signed by all parties and lawyers, shall be incorporated in the record of the proceeding.

As previously noted, appellant never at any time requested the trial judge to comply with Canon 3 C or 3 D and never at any time objected to his failure to do so. Appellant was not represented by an attorney at the arraignment, but was represented by an attorney at the hearing on his motion for postconviction relief. Neither the appellant nor his attorney made any request for compliance with Canon 3 C or 3 D at that hearing where, again, even though the Circuit Judge was different, the relationship of nephew-uncle still existed. Neither was any objection made by the appellant or his attorney to failure to comply with Canon 3 C or 3 D at the hearing on the motion for postconviction relief. Appellant is represented by a different attorney on this appeal but still no objection has been made on the appeal to the failure of the trial judge at the arraignment to comply with Canon 3 C or 3 D, although an objection is made for the first time on this appeal to the failure of the circuit judge who presided at the hearing on the motion for postconviction relief under Rule 37, Arkansas Rules of Criminal Procedure, to comply with Canon 3 C.

We regard these failures to request compliance and object to non-compliance as being immaterial because the sense of Canon 3 C is that the judge should take the initiative under Canon 3 C, and also under Canon 3 D if the judge elects to take advantage of the Canon 3 D procedure.

The commentary following Canon 3 D makes a point of the fact that the procedure therein set out is designed to "minimize the chance that a party or lawyer will feel coerced into an agreement" that "the judge's relationship is immaterial". If requiring a request to disqualify is coercive then likewise requiring an objection would be coercive. Thus, if a request to disqualify is not required then neither should an objection for failure to disqualify be required. If no objection is required then it follows necessarily that the point of failure to comply is preserved for appeal even without an objection. It then further follows that when an appeal is lodged in this court under any appropriate rules providing therefor and this court finds from the record that there were circumstances requiring compliance with either Canon 3 C or Canon 3 D and that there was a failure to do so, then this court must notice the same sua sponte.

The fact that the prosecuting attorney and circuit judge each is elected by the voters of the judicial district does not alter the fact that the prosecuting attorney appears as attorney for the state and that the state is an adversary party to the defendant in criminal cases. Thus we can find no reason to distinguish cases where the attorney client relationship comes into being by popular election from those where it arises by private employment.

All that we have said concerning the taking of the initiative by the trial judge on Canon 3 C applies with equal force as to Canon 3 D. If a judge disqualifies under Canon 3 C then, of course, Canon 3 D never comes into play. However, if a circumstance arises to which Canon 3 C is applicable, then the judge must disqualify on his own initiative or must...