Fort v. State

• Decision Date: 21 July 2022
• Docket Number: Case No. F-2020-659
• Citation: 516 P.3d 690
• Parties: Aaron Lamar FORT, Appellant v. The STATE of Oklahoma, Appellee
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

516 P.3d 690

Aaron Lamar FORT, Appellant
v.
The STATE of Oklahoma, Appellee

Case No. F-2020-659

Court of Criminal Appeals of Oklahoma.

FILED: July 21, 2022

APPEARANCES AT TRIAL

KIM MILLER, BAILEY DAUGHERTY, ASST. PUBLIC DEFENDERS, 320 ROBERT S. KERR, STE. 400, OKLAHOMA CITY, OK 73102, COUNSEL FOR DEFENDANT

RACHEL THOMPSON, C.T., ASST. DISTRICT ATTORNEYS, 320 ROBERT S. KERR, STE. 505, OKLAHOMA CITY, OK 73102, COUNSEL FOR STATE

APPEARANCES ON APPEAL

HALLIE ELIZABETH BOVOS, ASST. PUBLIC DEFENDER, 320 ROBERT S. KERR AVE., STE. 400, OKLAHOMA CITY, OK 73102, COUNSEL FOR APPELLANT

JOHN M. O'CONNOR, ATTORNEY GENERAL, OF OKLAHOMA, SHERI M. JOHNSON, ASSISTANT ATTORNEY, GENERAL, 313 N.E. 21ST STREET, OKLAHOMA CITY, OK 73105, COUNSEL FOR APPELLEE

APPEARANCES ON REMAND

HALLIE ELIZABETH BOVO, AMANDA HOLDEN, ASST. PUBLIC DEFENDERS, 320 ROBERT S. KERR AVE., STE. 400, OKLAHOMA CITY, OK 73102, COUNSEL FOR APPELLANT

BRIAN HERMANSON, ROB DAVIS, ASST. DISTRICT ATTORNEYS, 201 S. MAIN STREET, NEWKIRK, OK 74647, COUNSEL FOR STATE

OPINION

ROWLAND, PRESIDING JUDGE:

516 P.3d 692

¶1 Aaron Lamar Fort was tried by jury in the District Court of Oklahoma County, Case No. CF-2019-1278, and convicted of Trafficking in Illegal Drugs in violation of 63 O.S.Supp.2018, § 2-415. The jury assessed punishment at twenty-three years imprisonment and the trial court sentenced Fort accordingly.

¶2 Fort appeals his Judgment and Sentence raising the following issues:

(1) whether the trial court committed structural error when the trial judge sexually assaulted and/or had an illicit affair with the prosecuting attorney on this case which resulted in judicial bias;

(2) whether the State failed to prove the chain of custody of the drugs which should have resulted in suppression of the evidence;

(3) whether the trial court committed reversible error by failing to instruct the jury on the lesser related offense of misdemeanor possession in violation of his right to a fair trial under the state and federal constitutions; and

(4) whether trial errors, when considered cumulatively, warrant a new trial.

¶3 We find relief in the form of a new trial is required on Fort's claim of judicial bias in Proposition One, so his other claims are moot. The State concedes that relief is required.¹

1. Claim of Judicial Bias

A. Background

¶4 Fort notes in his first proposition that after the conclusion of his trial, facts were brought to light that the trial judge, then-District Judge Timothy Henderson, was, at the time of trial, engaged in a sexual relationship with Assistant District Attorney C.T.² , one of two prosecutors on his case. Fort argues that this sexual relationship violated his federal due process right to an impartial and disinterested tribunal resulting in structural error. Accordingly, he filed a Notice of Extra-Record Evidence Supporting Proposition I of the Brief of Appellant and, Alternatively, Rule 3.11 Motion to Supplement Direct Appeal Record or for an Evidentiary Hearing.

¶5 On October 27, 2021, this Court remanded the case to the District Court of Oklahoma County for an evidentiary hearing on the claims contained within Fort's first proposition pursuant to Rule 3.11(A), Rules of the Court of Criminal Appeals , Okla. Stat. Ch. 18, App. (2022).³ At the evidentiary hearing held on January 24, 2022, the parties stipulated to the evidence to be considered by the district court.

516 P.3d 693

B. Findings of Fact and Conclusions of Law on Remand

¶6 In Findings of Fact and Conclusions of Law filed in this Court on February 28, 2022, the district court found, in relevant part, that Fort was charged with trafficking in illegal drugs and the case was assigned to Judge Henderson. The district court found that while they were involved in a sexual relationship, prosecutor C.T. appeared before Henderson for the State at a pretrial conference, a Jackson v. Denno hearing, the jury trial, and sentencing proceeding. The district court further found that neither Henderson nor prosecutor C.T. disclosed the sexual relationship to Fort or his attorneys before or during Fort's trial. The court found that because Fort's attorneys had no knowledge of the relationship prior to or during the jury trial, they were unable to request recusal or otherwise raise the issue of bias below. The district court found that defense counsel would have requested that Henderson recuse had they known of the sexual relationship between Henderson and prosecutor C.T.

¶7 In its conclusions of law, the district court accurately stated that this Court has held that, " ‘[t]he Oklahoma Constitution guarantees a defendant a right to a fair, impartial trial not tainted by the personal bias or prejudice of the trial court.’ " Welch v. State , 2000 OK CR 8, ¶ 37, 2 P.3d 356, 372 (quoting Fitzgerald v. State, 1998 OK CR 68, ¶ 10, 972 P.2d 1157, 1163 ). See also Okla. Const. art. 2, § 6. The federal due process clause requires the same. In re Murchison , 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955) ("A fair trial in a fair tribunal is a basic requirement of due process."). See also Marshall v. Jerrico, Inc. , 446 U.S. 238, 242, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980) ("The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases."); U.S. Const. amend. V, XIV.

¶8 The district court added, in its conclusions of law, that, "[i]n order to maintain and foster proper respect and confidence of the people in the courts, the courts must be presided over by unprejudiced, unbiased, impartial, and disinterested judges and all doubt and suspicion to the contrary must be jealously guarded against." Castleberry v. Jones , 68 Okla. Crim. 414, 424, 99 P.2d 174, 179 (1940). It further noted that, "even if there is no showing of actual bias ... due process is denied by circumstances that create the likelihood or the appearance of bias." Peters v. Kiff , 407 U.S. 493, 502, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972). See also Williams v. Pennsylvania , 579 U.S. 1, 8, 136 S.Ct. 1899, 195 L.Ed.2d 132 (2016) (a showing of actual subjective bias is not required to establish a due process violation). Rather, as the district court noted, "there are objective standards that require recusal when ‘the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.’ " Caperton v. A.T. Massey Coal Co., Inc. , 556 U.S. 868, 872, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009) (quoting Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975) ). The district court found that the facts of the present case present the unconstitutional potential for bias admonished against in Caperton .

¶9 Based upon the forgoing findings of fact and conclusions of law, the district court concluded that Fort was denied his constitutional right to due process. The court stated that, "[a] new trial is the only adequate remedy to redress [Fort's] denial of due process of law. Also, a new trial is necessary in order to preserve the integrity and reputation of our criminal justice system."

2. Legal Analysis

¶10 "Every person accused of crime is entitled to nothing less than the cold neutrality of an impartial judge, and where the circumstances are of such a nature as to cause doubts as to the impartiality of a judge, the error, if any, should be made in favor of the disqualification rather than against it...." State ex rel. Vahlberg v. Crismore , 90 Okla. Crim. 244, 247, 213 P.2d 293, 295 (1949). The Code of Judicial Conduct requires judges to...