Baptiste v. State

• Decision Date: 18 November 1997
• Docket Number: No. A97A2570,A97A2570
• Parties: , 97 FCDR 4365 BAPTISTE v. The STATE.
• Court: Georgia Court of Appeals

Page 530

494 S.E.2d 530

229 Ga.App. 691, 97 FCDR 4365

BAPTISTE v. The STATE.

No. A97A2570.

Court of Appeals of Georgia.

Nov. 18, 1997.

Reconsideration Denied Dec. 5, 1997.

Certiorari Denied April 10, 1998.

Dwight L. Thomas, Atlanta, for appellant.

J. Tom Morgan, District Attorney, Gregory J. Lohmeier, Melissa L. Himes, Assistant District Attorneys, for appellee.

ELDRIDGE, Judge.

Defendant-appellant Darryl Baptiste married Debora Davis in the early 1980s and fathered two children. They were separated for several years while he was living with another woman, and he spent months out of state. In her own name only, Davis leased an apartment at 76-A Trevitta Drive, DeKalb County, where she lived with her two children. Thereafter, the defendant heard that Davis was seeing a Daniel Tesfaye, and he became upset. Defendant decided to "rescue" his children from being subject to the influence of the lover.

On August 21, 1993, defendant approached Tesfaye outside of Davis' apartment, while Tesfaye worked on the car that the defendant purchased for Davis; he pointed a gun at Tesfaye. The defendant forced Tesfaye to enter the apartment, threatening to shoot and kill him if he ran. Defendant placed the gun against the victim's back and forced Tesfaye to summon Davis from upstairs.

When Davis and Tesfaye were together, the defendant placed plastic flex cuffs on them and duct taped their mouths. After the defendant had the victims secured, he used a Taser gun to shock them several times each. Davis was struck several times with the defendant's fist.

The defendant went through Davis' papers, looking for the children's passports and birth certificates. The defendant then took Davis' address book and car keys. He told them that he was going to take the children, and he drove off in her car with them. The victims were found by the police with flex cuffs on and duct tape over their mouths. The car was recovered at the airport. On March 16, 1994, the defendant was arrested in Charlotte, North Carolina. The children were later found elsewhere in Charlotte and returned to their mother. The defendant was returned to Atlanta, DeKalb County, and he bonded-out on March 29, 1994. On May 24, 1994, defendant was indicted, but the defendant jumped bond.

Defendant fled to Vancouver. ¹ After capture, he was extradited to Georgia on an outstanding probation warrant. ²

Defendant was reindicted in DeKalb County on October 18, 1996, for eight counts: four aggravated assaults; two burglaries; and two false imprisonments.

On November 4, 1996, defendant, represented by Akil Secret, entered a plea of guilty. He had been represented by three different defense counsel, including his present appellate counsel. The assistant district attorney gave the above outline of the State's case.

Defense counsel denied the use of a gun, Taser, tape, or cuffs and stated that the defendant wanted only to rescue his children. It was admitted that he looked for birth certificates and took the car and the children. He admitted getting into a fight with Tesfaye.

The plea was non-negotiated, and the State asked for 20 years to serve, because of his lengthy record and numerous attempts at flight. Defense counsel argued vigorously against such sentence and stated that he had advised the defendant to go to trial on this case, but his client stated to him that he had spent a year waiting for trial and wanted to enter a plea at that time.

The trial court indicated that it would impose a sentence of 15 years, if the defendant wanted to enter a plea. Defendant then addressed the trial court, "I was thinking in terms of hoping that the Court may give a better recommendation if you would see the heart of the picture of this case. Unfortunately, there hasn't been time."

The following colloquy occurred: "[Court:] Is there going to be a plea, sir? [Defendant:] Yeah, I guess so. [Court:] You are going to enter a plea? [Defendant:] Yes, ma'am."

On the record, defendant was then advised of his constitutional rights in order to determine if the plea was entered freely, knowingly, and voluntarily. Defendant pled guilty to Counts 2, 3, 7, and 8, charging him with two counts of aggravated assault and two counts of false imprisonment. Held:

1. Defendant alleges that he was denied fundamental due process of law when the trial judge did not sua sponte recuse herself from taking the guilty plea and from sentencing defendant because of her bias and prejudice toward defendant, which resulted in a retaliatory sentence. The trial court did not err in not sua sponte recusing herself, nor were defendant's due process rights violated.

The Code of Judicial Conduct, Canon 3E Disqualification (1), reads, "Judges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party...." The official commentary states: "Under this rule, judges are subject to disqualification whenever their impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply.... Judges should disclose on the record information that the court believes the parties or their lawyers might consider relevant to the question of disqualification, even if they believe there is no legal basis for disqualification." However, the conduct or remarks must raise a legitimate inquiry; otherwise recusal will be denied, because "the remarks [or conduct] of the trial judge did not raise a reasonable question of the judge's impartiality, within the meaning of Canon 3[E](1) of the Code of Judicial Conduct. Von Hoff v. Carmichael, 204 Ga.App. 760, 762(3), 420 S.E.2d 643 [ (1992) ]." (Punctuation omitted.) Pardo v. State, 215 Ga.App. 317, 320(9), 450 S.E.2d 440 (1994); see also Chambliss v. Roberson, 164 Ga.App. 579, 580(1), 298 S.E.2d 550 (1982).

"[I]mpartiality might reasonably be questioned" means a reasonable perception, of lack of impartiality by the judge, held by a fair minded and impartial person based upon objective fact or reasonable inference; it is not based upon the perception of either interested parties or their lawyer-advocates, seeking to judge shop and to gain a trial advantage, because both of their credibility is suspect from self-interest. King v. State, 246 Ga. 386, 390(7), 271 S.E.2d 630 (1980). Recusal on this ground requires a rational basis for such questioning, not an arbitrary basis, even though no "actual impropriety on the part of the trial court judge" has been shown. Id.; accord Birt v. State, 256 Ga. 483, 486, 350 S.E.2d 241 (1986).

The trial judge, assuming the truth of any facts alleged, must determine the legal sufficiency of the grounds for such perception, whether "a reasonable person might conclude that the judge harbors a bias, stemming from an extra-judicial source, which is of such a nature and intensity that it would impede the exercise of impartial judgment. [Cit.]" Wellons v. State, 266 Ga. 77, 88(18), 463 S.E.2d 868 (1995). If the trial judge determines that the motion was timely, that the basis for the perception is a legal basis, and that the motion raises a legitimate fact question of impartiality, then another judge must pass upon the factual issues.

"Any analysis of the necessity for recusal is necessarily fact-bound, requiring an examination of the nature and extent of any business, personal, social or political associations, and an exercise of judgment concerning just how close and how extensive (and how recent) these associations are or have been [to mandate recusal]." Sears v. State, 262 Ga. 805, 806, 426 S.E.2d 553 (1993).

These above standards were in part adopted from the federal statutes dealing with recusal but were made more flexible by Georgia appellate interpretation. Pope v. State, 257 Ga. 32, 34(2), 354 S.E.2d 429 (1987). While the federal system called for automatic recusals in all cases where the affidavit set forth a legal basis for recusal, our Courts have rejected this procedure in favor of procedures adopted from other jurisdictions. State v. Fleming, 245 Ga. 700, 701-703(1), 267 S.E.2d 207 (1980); Isaacs v. State, 257 Ga. 126, 355 S.E.2d 644 (1987).

If the trial judge knows that, for whatever reason, he or she cannot act fairly and impartially to both sides under the facts and circumstances of a case, then such judge is duty bound to recuse himself or herself from that case. ³ A judge should not consider the public unpopularity of the cause or the parties; the convenience to the judge; or personal considerations in making a determination regarding a case. If the alleged grounds for sua sponte recusal are not timely and based upon a legal reason for recusal, then self-recusal is improper. The judge can and should recuse himself or herself "on grounds of personal prejudice and bias." State v. Fleming, supra at 702, 267 S.E.2d 207; accord Birt v. State, supra at 485, 350 S.E.2d 241. In a self-recusal, the trial court judge should go through the same steps of analysis as if the motion had been made in writing.

Keeping the above in mind, it is clear that the defendant herein seeks to use his own misconduct, in engaging in annoying and harassing telephone calls to the judge's chambers and the judge's appropriate response thereto, as grounds to compel the judge to recuse herself. Such conduct, if sanctioned by recusal, could lead to blatant misconduct on the part of parties or counsel to intentionally delay trials and to "judge shop" to gain an unconscionable advantage. The trial court, in explaining to the defendant why his jail telephone privileges had been restricted, stated at the sentencing hearing: "That is because you were basically harassing my office by calling us repeatedly from the jail phone. Even when we would tell you that you had an attorney and to please not call us back anymore, you would simply hang up and call back again, and this went...