Davis v. Com., 1257-94-1

• Decision Date: 06 February 1996
• Docket Number: No. 1257-94-1,1257-94-1
• Court: Virginia Court of Appeals
• Parties: Kama Dearborn DAVIS v. COMMONWEALTH of Virginia. Record

Page 741

466 S.E.2d 741

21 Va.App. 587

Kama Dearborn DAVIS v. COMMONWEALTH of Virginia.

Record No. 1257-94-1.

Court of Appeals of Virginia,

Norfolk.

Feb. 6, 1996.

Dianne G. Ringer, Assistant Public Defender, for appellant.

Richard H. Rizk, Assistant Attorney General (James S. Gilmore, III, Attorney General; Katherine P. Baldwin, Assistant Attorney General, on brief), for appellee.

Present: BAKER, WILLIS and BRAY, JJ.

BAKER, Judge.

Kama Dearborn Davis (appellant) appeals from a judgment of the Circuit Court of the City of Portsmouth (trial court) that approved a jury verdict convicting him of aggravated sexual battery and forcible sodomy. Appellant contends that the judgment must be reversed because the trial judge erroneously refused to recuse himself from presiding over the trial, and because he denied motions made during the course of the trial by appellant's trial counsel to withdraw as counsel for appellant. Finding no error, we affirm.

In this appeal, as sufficiency of the evidence to support the convictions is not at issue, we consider only the evidence relevant to recusal and counsel's professional responsibility. The record discloses that in the summer of 1985, the victim was five years old. She lived with her mother and her seven-year-old brother. Appellant, a friend of the victim's mother, lived with them for a period of time and baby-sat the children during their mother's absence. The victim testified that one evening that summer when her mother was not at home she and her brother watched television with appellant in the living room. After watching a movie, appellant sent the victim's brother to bed early. Appellant then changed into one of the mother's bathrobes, lay on the living room couch, and told the victim to come over and "suck" his penis. When she refused, he took hold of the back of her head with his hand and forced her mouth onto his penis. While this was occurring, the brother appeared. He stated that he needed to go to the bathroom, which was across the living room, and he testified that he saw his sister on her knees close to appellant and that appellant's penis was exposed. He then went back to bed and fell asleep.

The victim further testified that appellant forced her to place her mouth on his penis again. He ejaculated into her mouth, after which she went into the bathroom, washed out her mouth, and then went to bed. Appellant followed her to her bed, pulled up her gown and pulled down her panties and began manually "messing" with her genitals.

I. The Recusal

Prior to trial, appellant made two separate motions requesting the trial judge to recuse himself on the ground that as a former Commonwealth Attorney he had previously prosecuted appellant on criminal charges. The court denied the motion both times. On the second occasion, the trial judge stated, "I don't know this gentleman, and I don't remember him .... if I prosecuted him, it would have been before I took the Bench [in] February, 1991." It is clear that the trial judge had no preconceived bias against appellant. Appellant had requested that he be tried by a jury and his guilt or innocence was to be decided by that jury. The jury would not be aware of appellant's prior convictions, if any, unless appellant testified on his own behalf. No ruling by the trial court demonstrates any bias prejudicial to appellant.

Canon 3(C) of the Canons of Judicial Conduct, which guides our decision in this matter, provides:

C. Disqualification.

(a) A judge shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(1) To this end, he should abstain from performing or taking part in any judicial act in which his personal interests are involved. He should not act in a controversy where a near relative is a party. He should not suffer his conduct to justify the impression that any person can improperly influence him or unduly enjoy his favor, or that he is affected by his kinship, rank, position or influence of any party or other person.

(2) A judge should inform himself about his personal and fiduciary financial interests and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.

The requirement of this Canon is clear; a judge must diligently avoid not only impropriety but a reasonable appearance of impropriety as well. Exactly when a judge's impartiality might reasonably be called into question is a determination to be made by that judge in the exercise of his or her sound discretion. Justus v. Commonwealth, 222 Va. 667, 673, 283 S.E.2d 905, 908 (1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1491, 71 L.Ed.2d 693 (1982). Judges are presumed to be aware of the provisions of Canon 3, and their decisions will not be disturbed absent an abuse of that discretion.

Subsections (1) and (2) of the Canon provide that judges should abstain from presiding when either they, or a near relative, have an "interest," financial or otherwise, in the proceeding. These subsections specify particular situations when a judge's impartiality might reasonably be called into question. While these subsections do not provide an exhaustive list, they certainly provide insight into the type of situations which give rise to a reasonable appearance of impropriety. What is certain is that Canon 3(C) does not require a judge to recuse himself or herself and disrupt the orderly flow of the docket at the whim or unsupported suggestion of a party.

Appellant argues that Broady v. Commonwealth, 16 Va.App. 281, 429 S.E.2d 468 (1993) requires this Court to reverse his convictions because the trial judge refused to recuse himself. We disagree. The facts in Broady are...