Jackson v. Com., Record No. 2930-01-1.

• Decision Date: 22 April 2003
• Docket Number: Record No. 2930-01-1.
• Citation: 579 S.E.2d 375,40 Va. App. 343
• Court: Virginia Court of Appeals
• Parties: Kenneth L. JACKSON, s/k/a Kenneth Lamont Jackson v. COMMONWEALTH of Virginia.

579 S.E.2d 375

40 Va. App. 343

Kenneth L. JACKSON, s/k/a Kenneth Lamont Jackson v. COMMONWEALTH of Virginia.

Record No. 2930-01-1.

Court of Appeals of Virginia, Richmond.

April 22, 2003.

Daniel Miller (Dan Miller & Associates, P.C., on briefs), for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Before: FITZPATRICK, C.J., and BENTON, ELDER, ANNUNZIATA, BUMGARDNER, FRANK, HUMPHREYS, CLEMENTS, AGEE,¹ FELTON and KELSEY, JJ.

UPON A HEARING EN BANC

HUMPHREYS, Judge.

This matter comes before the Court on a hearing en banc, pursuant to the Court's own motion under Code § 17.1-402(D), and corresponding order of January 8, 2003, ordering that this case proceed directly to an en banc hearing. Upon hearing this matter en banc, we unanimously reverse the judgment of the trial court and remand.

I. Background

Following proceedings in the juvenile court, a grand jury indicted Kenneth Jackson, a juvenile, for possession of cocaine with intent to distribute on school property and possession of cocaine with intent to distribute. On October 10, 1997 Jackson tendered a guilty plea in the circuit court to those charges. A judge accepted the plea and entered a conviction order. In December of 1997, the circuit court judge who convicted Jackson issued a capias at the Commonwealth's request, ordering Jackson to appear and show cause why his bail should not be terminated. The record does not indicate the disposition of that matter. In February 1998, the circuit court judge sentenced Jackson on his guilty plea to twenty years in prison, suspended eighteen years of the sentence, and ordered probation upon Jackson's release. Both the conviction order and the sentencing order indicate that the "Commonwealth was represented in the case by Charles D. Griffith, Jr. [the Commonwealth's Attorney for the City of Norfolk], or his designee." Several documents in the record suggest that Elizabeth S. Dopp, an Assistant Commonwealth's Attorney, actually represented the Commonwealth at various stages of the case.

In April and June 2001, the circuit judge who convicted and sentenced Jackson issued orders directing Jackson to show cause why his probation should not be revoked. Charles D. Griffith, Jr., who had been appointed as a circuit court judge after Jackson's original sentencing, was assigned to Jackson's probation revocation hearing. Jackson objected to Judge Griffith presiding over the case. He argued that, because Judge Griffith was the Commonwealth's Attorney under whom the original convictions were obtained, the Judicial Canons required Griffith to recuse himself. Judge Griffith indicated he had obtained an advisory opinion from the Judicial Inquiry and Review Commission and needed to consider only whether he was the Commonwealth's Attorney when the probation violation occurred, not whether he was the Commonwealth's Attorney at the time of the underlying conviction. On that basis, Judge Griffith denied Jackson's motion for recusal.

At the conclusion of the evidence, Judge Griffith found that Jackson had violated conditions of his probation and ordered that the entire previously suspended sentence be executed. Jackson appeals, arguing that Judge Griffith erred in refusing to grant Jackson's motion for recusal.

II. Analysis

We begin by recognizing, as Lord Hewart succinctly noted, that "Justice should not only be done, but should manifestly and undoubtedly be seen to be done." Rex v. Sussex Justices, King's Bench Reports, 1924, vol. 1. Accordingly, when a motion for recusal is raised, we have held that

"[a] trial judge must exercise reasonable discretion to determine whether he possesses such a bias or prejudice as would deny a party a fair trial...." Stamper v. Commonwealth, 228 Va. 707, 714, 324 S.E.2d 682, 686 (1985) (citing Deahl v. Winchester Dep't. Social Services, 224 Va. 664, 672-73, 299 S.E.2d 863, 867 (1983)). In exercising such discretion, a judge must not only consider his or her true state of impartiality, but also the public's perception of his or her fairness, so that public confidence in the integrity of the judicial system is maintained. Id. However, "[m]erely because a trial judge is familiar with a party and his legal difficulties through prior judicial hearings ... does not automatically or inferentially raise the issue of bias." Deahl, 224 Va. at 672-73, 299 S.E.2d at 867 (citing Barry v. Sigler, 373 F.2d 835, 836 (8th Cir.1967)). Furthermore, "[t]he courts are practically unanimous in the view that neither the forming or expressing of [an opinion upon a matter or issue which may come before him in a latter proceeding] disqualifies a judge in a subsequent matter." Slayton v. Commonwealth, 185 Va. 371, 376, 38 S.E.2d 485, 488 (1946); see also Justus v. Commonwealth, 222 Va. 667, 674, 283 S.E.2d 905, 908 (1981),

cert. denied, 455 U.S. 983, 102 S.Ct. 1491, 71 L.Ed.2d 693 (1982).

Buchanan v. Buchanan, 14 Va.App. 53, 55-56, 415 S.E.2d 237, 238 (1992). Thus, we have declined to adopt a per se rule declaring that trial judges who, as Commonwealth's Attorneys, previously have prosecuted an accused may not preside over the accused's trial on unrelated criminal charges at a later time. Davis v. Commonwealth, 21 Va.App. 587, 592, 466 S.E.2d 741, 743 (1996). However, our jurisprudence has not adequately addressed the important consideration of maintaining the integrity of the judicial system, as it relates to the specific matter at issue here—a trial judge presiding over the trial of a matter in which he or she has previously acted as, or on behalf of, a party.

However, the Supreme Court of Virginia has addressed similar issues with respect to other elements of the judicial system. Its holdings in this regard guide our decision here.

Specifically, in City of Va. Beach v. Giant Sq. Shopping, 255 Va. 467, 498 S.E.2d 917 (1998), the Supreme Court of Virginia determined that a trial court abused its discretion in refusing to strike for cause a commissioner in an eminent domain action, where it was established that at the time of trial, the commissioner was a client of the landowner's counsel and that the commissioner had used the landowner as an appraiser in a prior condemnation proceeding to which the commissioner was a party.² 255 Va. at 471, 498 S.E.2d at 919. The court noted that the commissioner at issue "ha[d] moved from counsel table in the prior case to the commissioners' box in the present case to sit in judgment [over] his former hired appraiser," and held it was "extremely unlikely the public would have confidence in the integrity of the process when a commissioner [had] the identity of interests demonstrated by this prospective commissioner." Id. Our Supreme Court has expressed similar concerns with respect to the seating of an otherwise disinterested juror who was too closely related to a witness. Barrett v. Commonwealth, 262 Va. 823, 826-27, 553 S.E.2d 731, 733 (2001). We hold that the same rationale and attendant analyses with respect to "identit[ies] of interest[]" relating to prospective jurors or commissioners and parties, must, by their very nature, apply with equal force to those relating to judges and parties.

Here, the record establishes that Judge Griffith was the Commonwealth's Attorney for the City of Norfolk at the time of the underlying offense committed by Jackson,...