Commonwealth Of Va. v. Prieto, No. FE-2005-1764

• Citation: No. FE-2005-1764
• Case Date: March 08, 2010
• Court: Circuit Court of Virginia

Commonwealth of Virginia
v.
Alfredo Prieto, Criminal

No. FE-2005-1764

NINETEENTH JUDICIAL CIRCUIT OF VIRGINIA
COUNTY OF FAIRFAX
CITY OF FAIRFAX

Filed: March 8, 2010

JUDGES

DENNIS J. SMITH, CHIEF JUDGE
MICHAEL P. McWEENY
MARCUS D. WILLIAMS
STANLEY P. KLEIN
JANE MARUM ROUSH
LESLIE M.ALDEN
JONATHAN C. THACHER
R. TERRENCE NEY
GAYLORD L FINCH, JR.
RANDY I. BELLOWS
CHARLES J. MAXFIELD
BRUCE D. WHITE
ROBERT J. SMITH
DAVID S. SCHELL
JAN L BRODIE

RETIRED JUDGES

BURCH MILLSAP
BARNARD F. JENNINGS
THOMAS J. MIDDLETON
THOMAS A FORTKORT
RICHARD J. JAMBORSKY
JACK B. STEVENS
J. HOWE BROWN
F. BRUCE BACH
M. LANGHORNE KEITH
ARTHUR B. VIEREGG
KATHLEEN H. MACKAY
ROBERT W. WOOLDRIDGE, JR.

LETTER OPINION

Raymond F. Morrogh, Esq.
Casey M. Lingan, Esq.
Robert D. McClain, Esq.
Office of the Commonwealth's Attorney

Counsel for the Commonwealth

Peter D. Greenspun, Esq.
Jonathan Shapiro, Esq.
Greenspun, Shapiro, Davis and Leary, P.C.

Counsel for Defendant Alfredo Prieto

Dear Counsel:

The matter comes before the Court on the defendant's motion to recuse this Court from the resentencing proceeding in the above-entitled matter. The Court has received and considered the motion of the defendant and the opposition thereto filed by the Commonwealth. On February 25, 2010, the Court heard oral argument on the defendant's motion. At the

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conclusion of oral argument, the Court advised the parties that the matter would be taken under advisement and the Court would issue a letter opinion. The matter, therefore, is ripe for decision.

For the reasons stated below, the defendant's motion to recuse the Court is denied. This Opinion is organized as follows:

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A. Procedural History........ 4

B. Discussion......... 5

1. Case Law Governing Recusal Decisions........ 6

a. The Right to a Fair Trial before a Fair Tribunal... 6

b. The Burden of Proof...... 6

c. The Decision is Made by the Trial Judge...... 7

d. The Standard for Recusal.......... 7

e. The Recusal Decision is Based on the "Entire Course of Judicial Proceedings"........ 9

2. The Entire Record............... 9

a. Pre-trial and Trial Proceedings.... 9

b. Post-trial Proceedings............ 11

c. Sentencing Proceedings......... 12

d. Appellate Proceedings.......... 18

3. The Defendant's Arguments in Support of Recusal...... 19

a. The Court used Strong Words in Describing the Defendant's Crimes and their Consequences......... 21

b. The Court Explained its Sentencing Decision............ 22

c. The Court was not Persuaded by the Mitigation Evidence............ 24

d. The Court Spoke with Emotion........... 26

e. The Court Read from a Prepared Statement............ 26

f. The Defendant has "Concerns"............ 27

g. The Case Law Cited by the Defense............. 27

i. Liteky v. United States, 510 U.S. 540 (1990)....... 27

ii. United States v. Robin, 553 F.2d 8 (2d Cir. 1977)........ 30

iii. United States v. Guglielmi, 929 F.2d 1001 (4th Cir. 1991)............. 32

iv. In re State v. Moore, 988 So. 2d 597 (Ala. Crim. App. 2007)............ 32

v. Commonwealth v. Jackson, 267 Va. 226 (2004)............. 33

Stamper v. Commonwealth, 228 Va. 707 (1985)............. 33

Wilson v. Commonwealth, 272 Va. 19 (2006)............ 33

4. The Court's Decision.............. 34

C. Conclusion............... 35

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A. Procedural History

On November 21, 2005, the defendant was indicted and charged with two counts of capital murder, two counts of use of a firearm in the commission of a felony, rape and grand larceny.

On May 29, 2007, trial began before the Honorable Dennis J. Smith. Judge Smith divided the trial into three phases, to wit, a guilt phase, a mental retardation phase, and a sentencing phase. On June 18, 2007, the defendant was found guilty on all counts. On July 3, 2007, due to juror misconduct, the case was mistried. On July 12, 2007, due to Judge Smith's assumption of the position of Chief Judge and its associated administrative responsibilities, the case was reassigned to this Court.

On January 7, 2008, the retrial began. This Court divided the trial into two phases, to wit, a guilt phase and a combined mental retardation/sentencing phase. On February 6, 2008, the defendant was again found guilty on all counts. On March 3, 2008, the jury returned its verdict on mental retardation/sentencing. First, the jury found that the defendant had failed to prove that he was mentally retarded. Second, the jury sentenced the defendant to death on each of the capital murders. Third, as to the remaining convictions, the jury sentenced the defendant to life in prison on the rape conviction, to three years on each of the firearms convictions, and to twenty years on the grand larceny conviction.

On May 23, 2008, the Court held the sentencing hearing. This followed the receipt of a pre-sentence report and the defendant's sentencing memorandum. After hearing argument and giving the defendant the opportunity to make a statement (which he declined), the Court ruled that good cause had not been shown to set aside the sentence of death and, therefore, sentenced the defendant to death on each of the capital murder counts. In addition, the Court sentenced the defendant to three years on each of the firearms counts, to twenty years on the grand larceny count, and to life in prison on the rape count, all sentences to run consecutively.

On September 18, 2009, the Supreme Court of Virginia affirmed each of the defendant's convictions. However, because the Supreme Court found error in the sentencing phase, it reversed the two sentences of death and remanded the case to the circuit court for a new sentencing proceeding on the capital murder convictions.

On December 29, 2009, the Court held a hearing to set a date for the resentencing proceeding. The resentencing proceeding was set for September 7, 2010. In addition, the Court set a briefing and hearing schedule for the instant recusal motion.

On January 29, 2010, the defendant filed his Motion for Recusal of Judge Randy I. Bellows. The defendant sought recusal of the Court on two grounds: "(1) Judge Bellows presided over all stages of the defendant's second trial, which resulted in a capital murder conviction and death sentence; and (2) Judge Bellows' involvement in-and statements made during-that trial and sentencing create a reasonable appearance of bias against the defendant."

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(Def.'s Motion for Recusal 1).¹ In support of its motion, the defendant cited twelve lines of the sentencing transcript² and argued that these statements by the Court-which are variously described as "prepared," "forceful[ ]," "heart-felt," "highly emotional," and "emotionally-laden"-create "a reasonable appearance of partiality for any future proceeding." As a result of the nature of these statements, the defendant argues, "the public can have no confidence that when faced with these issues again, the decision will be made on a clean slate, unaffected by what went before."³

On February 16, 2010, the Commonwealth filed its response to the defendant's recusal motion. The Commonwealth opposed recusal of the Court and argued that the case law of Virginia is clear that there is no per se rule requiring a judge to recuse himself from the retrial of a capital murder case. (Commonwealth's Resp. to Motion for Recusal 1). Further, the Commonwealth argued that none of the statements made by the Court during sentencing "show[ ] a bias or prejudice against the Defendant that would deny the Defendant a fair trial or cause the public to lack confidence in his decision." (Commonwealth's Resp. to Motion for Recusal 2).

B. Discussion

First, the Court will lay out the general principles of law governing the resolution of a recusal motion. Second, the Court will review the "whole record" of these proceedings, as required by the recusal case law described below. Third, the Court will discuss in greater detail the arguments of defense counsel and the cases upon which they principally rely. Finally, the Court will give its decision on the matter.

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1. Case Law Governing Recusal Decisions

a. The Right to a Fair Trial before a Fair Tribunal

Impartiality lies at the core of a fair trial. A judge "must possess neither actual nor apparent bias against a party." United States v. Cherry, 330 F.3d 658, 665 (4th Cir. 2003). A trial judge must be a "neutral," Ward v. Village of Monroeville, 409 U.S. 57, 61-62 (1972) and "a fair trial in a fair tribunal is a basic requirement of due process." In...