Banana v. State, 91-KP-00237

• Court: United States State Supreme Court of Mississippi
• Citation: 635 So.2d 851
• Docket Number: No. 91-KP-00237,91-KP-00237
• Parties: James Gregory BANANA v. STATE of Mississippi.
• Decision Date: 31 March 1994

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635 So.2d 851 James Gregory BANANA
v.
STATE of Mississippi. No. 91-KP-00237. Supreme Court of Mississippi. March 31, 1994.

Page 852

James Gregory Banana, pro se.

Michael C. Moore, Atty. Gen., Deirdre McCrory, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PRATHER, P.J., and BANKS and McRAE, JJ.

McRAE, Justice, for the Court:

On October 12, 1989, James Gregory Banana appeared before the Honorable John M. Montgomery in the Circuit Court of Clay County and entered a plea of guilty to two crimes of forgery. Banana was sentenced to serve two (2) concurrent terms of fifteen (15) years each in custody of the Mississippi Department of Corrections. Feeling aggrieved, Banana appeals to this Court, assigning as error:

I. Appellant was denied due process of law as required by Article III, Section 14 of the Mississippi Constitution since the trial judge was the district attorney at the time he was indicted.

II. The trial court did not follow Rule 3.03(B) of the Mississippi Uniform Criminal Rules of Circuit Court Practice and, therefore, appellant's guilty plea was not knowingly, intelligently and voluntarily entered.

Finding that Banana was not denied due process of law, since he expressly waived his objection to the trial judge hearing his case, and that Banana's guilty plea was knowingly, intelligently and voluntarily entered in conformity with Rule 3.03(3)(B) of the Mississippi Uniform Criminal Rules of Circuit Court Practice, we affirm the lower court's denial of appellant's post-conviction relief.

DISCUSSION OF LAW

I.

DID THE TRIAL COURT JUDGE ERR IN NOT RECUSING HIMSELF FROM THE CASE?

John M. Montgomery, the district attorney when Banana was indicted for the crimes of forgery in the case sub judice, later became the circuit court judge who accepted his guilty pleas. Judge Montgomery later recused himself and appointed the Honorable Kenneth Coleman to consider Banana's post-conviction motions. Banana argues that he was denied due process of law since Judge Montgomery failed to recuse himself from Banana's arraignment. The State asserts that Banana expressly waived this issue during his plea hearing. The transcript of Banana's arraignment and guilty plea reflects Judge Montgomery and Banana's discussion relative to Judge Montgomery's being the district attorney at the time the indictments were returned, as follows:

Judge Do you understand that I was the District Attorney at the time
                 Montgomery: that these cases were presented to the Grand Jury, in fact,
                 one of my assistants presented these cases?
                Banana: Yes, sir.
                Judge Do you understand that you have the right to object to me being
                 Montgomery: the Judge in your case because I was the District Attorney?
                Banana: Yes, sir.
                Judge You understand that? Knowing that, you can waive any objection
                 Montgomery: that you might have for me sitting in judgment of your case,
                 and you can do that if you want to. Do you waive the objection
                 to me judging your case, knowing that I was the District
                 Attorney?
                Banana: Uh--well, who'll be the--the next judge?
                Judge We will get another Judge here. Do you want to confer with [your
                 Montgomery: attorney] on that?
                Banana: Yes, your Honor. (conference between Mr. [Thad] Buck and Mr.
                 Banana) We're ready your Honor.
                Judge Do you waive, uh--any objection to me sitting in judgment of
                 Montgomery: your case?
                Banana: Yes, sir.
                ----------
                

Canon 3C of the Code of Judicial Conduct states:

(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, or personal knowledge of disputed evidentiary facts concerning the proceeding: [or]

(b) he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer

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has been a material witness concerning it[.]

This Court in Collins v. Dixie Transport, Inc., 543 So.2d 160 (Miss.1989), held that when examining the conduct of a judge, the canon enjoys the same status as that of law. Collins, 543 So.2d at 166.

In Frierson v. State, 606 So.2d 604 (Miss.1992), a similar situation existed where the trial judge had also been the district attorney at the time of the defendant's indictment. Frierson, 606 So.2d at 606. We held that the trial judge should have recused himself on his own motion according to Canon 3C of the Code of Judicial Conduct. Id. Frierson, however, is different from the case sub judice in that the trial judge refused to recuse himself after Frierson filed a motion for recusal. In the case at hand, Banana did not request a recusal but, in fact, waived any objections he had to Judge Montgomery sitting in judgment of his case. Judge Montgomery initiated the discussion.

Mississippi has an objective test in determining when a judge should recuse himself. Jenkins v. State, 570 So.2d 1191, 1192 (Miss.1990). "A judge is required to disqualify himself if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality." Rutland v. Pridgen, 493 So.2d 952, 954 (Miss.1986).

The presumption is 'that a judge, sworn to administer impartial justice, is qualified and unbiased. To overcome the presumption, the evidence must produce a 'reasonable doubt' (about the validity of the presumption)[.]" Turner v. State, 573 So.2d 657, 678 (Miss.1990). When a judge is not disqualified under the constitutional or statutory provisions, 'the propriety of his or her...