Cook v. State

• Decision Date: 27 April 1993
• Docket Number: No. 49A02-9208-CR-390,49A02-9208-CR-390
• Citation: 612 N.E.2d 1085
• Parties: Rodney L. COOK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1085

612 N.E.2d 1085

Rodney L. COOK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-9208-CR-390.

Court of Appeals of Indiana Second District.

April 27, 1993.

Howard Howe, Indianapolis, for appellant-defendant.

Pamela Carter, Atty. Gen., Deana M. McIntire, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

FRIEDLANDER, Judge.

CASE SUMMARY

Defendant-appellant Rodney Cook (Cook) appeals from his sentences for attempted murder, rape and confinement, claiming the trial judge was biased against him because she cried during the sentencing hearing.

We affirm.

FACTS

The facts most favorable to the trial court's judgment reveal that on August 19, 1991, the victim returned to her apartment after dining with her mother. While standing at her mailbox, Cook, her neighbor, approached her and asked to borrow some salt. The victim entered her apartment and went into the kitchen for some salt. When she returned to her living room, Cook shot her in the chest.

She began screaming and wrestled with Cook. He struck her six or eight times with the butt of the revolver, and she feigned unconsciousness. Cook pulled her along the floor into another room and left for a few moments; when he returned, he removed some of the victim's clothing, engaged in sexual deviate conduct and then raped her. The victim struggled with Cook and kicked him. Cook then left the apartment.

The victim crawled into her bathtub and attempted to hide. Cook returned with the gun and a pillow. He placed the pillow over her head and shot her through the pillow. The bullet hit the victim's forearm and grazed her forehead. She lunged forward in the tub when shot and held her breath until Cook left.

Cook was arrested and charged with attempted murder, ¹ a class A felony, rape, ² a class A felony, criminal deviate conduct, ³ a class A felony, confinement, ⁴ a class B felony, and aggravated battery, ⁵ a class B felony. Cook pled guilty but mentally ill to attempted murder, rape and confinement pursuant to a plea agreement.

At the sentencing hearing, the victim testified about the attack. After describing Cook's actions, the victim stated that she did not seek vengeance, because there was nothing the court could do to change the past. She said she was not interested in punishing Cook, but she wanted to be sure that Cook was imprisoned long enough before he was released so that he would be rehabilitated and not be a threat to others.

After these comments, the trial judge interrupted:

"I think it's appropriate for me to speak at this time because I know that--all of you know that I am crying and I want you to know the reason for that is because of [the victim's] forgiving nature. It is unusual, I believe, for a person who's been a victim of such a vicious crime to have such a forgiving attitude about her experiences. And I think that that reflects all the best that there is in human nature. And I want Mr. Glazier [Cook's counsel] and Mr. Cook to realize that, even though I'm emotional at this time and that I am crying, that you will have nothing to fear."

Record at 337-38.

After a brief recess, Cook asked the trial judge to recuse herself because he felt he could not receive an impartial adjudication from her. The trial judge denied the motion. After the cross-examination of the witness and arguments by counsel, the trial court accepted Cook's guilty plea. Cook was sentenced to a forty-year term of imprisonment for attempted murder, forty years for rape, the sentences to be served consecutively, and a ten-year sentence for confinement, to be served concurrently to the other sentences, for a total term of imprisonment of eighty years.

The trial judge articulated three aggravating circumstances to support her decision: Cook's use of subterfuge to get into a position to harm the victim; his return after the rape with the specific intent to kill the victim to evade detection and the use of the pillow to muffle the sound of the gunshot to evade detection; and her determination that Cook was in need of corrective treatment that could be found only in a prison setting. The trial judge later amended the abstract of the judgment to show that she found Cook's youth and remorse to be mitigating factors, but that the aggravating factors outweighed those mitigating circumstances.

ISSUES

1. Whether the trial judge erred in failing to recuse herself because of the appearance of partiality?

2. Whether the trial judge demonstrated actual bias against Cook?

3. Whether the trial judge improperly balanced the aggravating and mitigating circumstances when she sentenced Cook?

DECISION

ISSUE ONE --Should the trial judge have recused herself because of the appearance of partiality?

PARTIES' CONTENTIONS --Cook argues that the Code of Judicial Conduct requires the trial judge to disqualify herself because her impartiality could reasonably be questioned. The State responds that the trial judge's actions would not lead a reasonable person to believe she was partial and that she did not err when she denied Cook's motion to recuse herself.

CONCLUSION --The trial judge was not required to recuse herself because of the appearance of partiality.

Cook first raises the possibility that the trial judge may have violated Ind.Rules of Procedure, Code of Judicial Conduct, Canon 3(C)(1), ⁶ which provided:

"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...."

Such a claim, however, is not properly before this court. It is the exclusive province of the Supreme Court to review alleged violations of the Code of Judicial Conduct. Ind. Const. Art. 7 Sec. 4; Ind. Rules of Procedure, Admission and Discipline Rule 23 Sec. 1; see also Matter of Young (1988), Ind., 522 N.E.2d 386. So the trial judge's action in relation to the Code of Judicial Conduct is not a consideration for this court.

With respect to Cook's assertion that the appearance of partiality required the trial judge to recuse herself, the Supreme Court has held that, while a trial judge has the discretion to disqualify himself or herself whenever any semblance of judicial bias or prejudice arises, disqualification is not required unless actual prejudice or bias exists. Smith v. State (1985), Ind., 477 N.E.2d 857. See also Newville v. State (1991), Ind.App., 566 N.E.2d 567, trans. denied. Therefore, even if we agreed with Cook that the trial judge's crying might support an allegation of the appearance of partiality, we nonetheless reject Cook's claim that the mere appearance of partiality requires the recusal of the trial judge.

ISSUE TWO --Was the trial judge actually biased against Cook?

PARTIES' CONTENTIONS --Cook next alleges that the trial judge's crying constituted actual bias against him, so she should have recused herself because of the existence of actual bias or prejudice. The State replies that the tears shed by the trial judge did not demonstrate that she was biased or prejudiced against Cook.

CONCLUSION --The trial judge was not biased.

A judge is presumed unbiased and unprejudiced, and to rebut the presumption, the defendant must establish from the judge's conduct actual bias or prejudice which places the defendant in jeopardy. Such bias or prejudice exists only where there is an undisputed claim or where the judge has expressed an opinion on the merits of the pending controversy. Smith v. State (1989), Ind., 535 N.E.2d 1155; Resnover v. State (1987), Ind., 507 N.E.2d 1382, cert. denied, 484 U.S. 1036, 108 S.Ct. 762, 98 L.Ed.2d 779; Wallace v. State (1985), Ind., 486 N.E.2d 445, cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 723. Adverse rulings or the imposition of the maximum possible sentence do not support a claim of bias. Radcliff v. State (1991), Ind., 579 N.E.2d 71; Resnover, supra.

We first conclude that the mere fact a judge has an emotional reaction does not demonstrate that the judge is biased or prejudiced. In Tafero v. Wainwright (11th Cir.1986), 796 F.2d 1314, on review of the habeas corpus petition of the murderer of a police officer, the court concluded that the fact the trial judge was a former police officer and had an emotional reaction at the victim's funeral did not mandate the judge's recusal or constitute grounds for disqualification. As the court observed in United States v. Valenti (D.N.J.1954), 120 F.Supp. 80:

"A judge of a court is human, and, like every other man, must have his likes and dislikes.... In so far as he is not swayed by these natural emotions to do any man an injustice, the fact that he has them in common with his brother man does not disqualify him from trying a case."

Id. at 90, quoting May v. May (1912), 150 Ky. 522, 524, 150 S.W. 685, 686. See also United States v. Cohen (E.D.Mich.1986), 644 F.Supp. 113.

We have uncovered no cases in which a judge was asked to be disqualified for crying at any time during any trial or proceeding. Several courts have, however, considered crying jurors, and concluded that tears alone do not necessitate reversal. See Murray v. State (1978), Fla.App., 356 So.2d 71 (juror's crying during polling of jury did not constitute reasonable basis for belief that verdict might be subject to legal challenge); Gilreath v. State (1981), 247 Ga. 814, 279 S.E.2d 650, cert. denied (1982), 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 862 (fact that several jurors were crying as death penalty verdict was announced would not establish that death penalty was imposed under influence of passion or prejudice--crying merely reflected that the jurors appreciated the enormity of their decision); State v. Naucke (1992), Mo., 829 S.W.2d 445, cert. denied, --- U.S. ----, 113 S.Ct. 427, 121 L.Ed.2d 348 (trial judge did not abuse discretion in refusing to declare mistrial or replace crying juror); State v. Grice (1988), 109 N.J. 379, 537 A.2d 683 (failure...