Lopez v. State, 15A05–1302–CR–51.
| Decision Date | 12 September 2013 |
| Docket Number | No. 15A05–1302–CR–51.,15A05–1302–CR–51. |
| Parties | Adolfo LOPEZ, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from the Dearborn Circuit Court; The Honorable James D. Humphrey, Judge; Cause No. 15C01–1209–FC–89.
Leanna Weissmann, Lawrenceburg, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Adolfo Lopez brings an interlocutory appeal from the trial court's denial of his motion for recusal/change of judge. Lopez filed his motion claiming that Judge James D. Humphrey is biased against him and in favor of Dearborn County Prosecutor Aaron Negangard. Finding neither actual bias or prejudice nor the appearance of bias or prejudice, we affirm the trial court's denial of Lopez's motion.
On September 24, 2012, the State charged Lopez and 108 other individuals with numerous nonviolent crimes involving a chain of Acapulco Mexican restaurants co-owned by Lopez. Specifically, Lopez was charged with six class C felonies and four class D felonies. The charges involved allegations of failure to properly report restaurant sales, failure to pay state sales taxes, falsification of tax forms, and the use of false social security numbers. The trial court set bond at $3,000,000 surety plus $250,000 cash. On October 31, 2012, Lopez filed a motion to reduce bond alleging that his bond was unconstitutionally excessive and contrary to Indiana Code Section 35–33–8–4(b). Following a hearing, the trial court denied the motion to reduce bond. Lopez filed a notice of appeal to this Court regarding the bond ruling on December 7, 2012. On appeal from the denial of the motion to reduce bond, this Court concluded that the trial court abused its discretion in denying the motion for bond reduction. Accordingly, we reversed the trial court's order by published opinion in Lopez v. State, 985 N.E.2d 358 (Ind.Ct.App.2013). 1
Just after the trial court denied the motion to reduce bond and prior to appealing that ruling to this Court, on December 3, 2012, Lopez also filed a motion for recusal/change of judge arguing that the trial judge presiding over his case, Judge Humphrey, should recuse himself and appoint a special judge due to both actual bias and the appearance of bias. Specifically, Lopez asserted that Judge Humphrey is and/or appears biased in favor of Prosecutor Negangard because, in 2011, Negangard successfully prosecuted an unrelated criminal case in which Judge Humphrey and his wife were the victims.2 Lopez noted that, on the same date Judge Humphrey denied Lopez's motion to reduce bond, Judge Humphrey attended appellate oral argument in that criminal case. Appellant's App. at 25.3 Lopez also asserted that Negangard inappropriately used arrest and bond procedures in the current case to force Lopez's codefendants to waive their Fifth Amendment rights and give statements to Negangard in exchange for release from jail and that Judge Humphrey “ceded control” to Negangard and acquiesced or participated in such inappropriate procedure. Id. at 16. The trial court denied the motion for recusal/change of judge by written order on December 20, 2012. Upon Lopez's request, the trial court certified its ruling for interlocutory appeal, and this Court accepted jurisdiction on March 11, 2013. This appeal ensued. Additional facts will be provided as necessary.
Lopez's request for recusal/change of judge was based upon, among other things, Indiana Rule of Criminal Procedure 12.4Criminal Rule 12(B) provides that a defendant may request a change of judge for bias or prejudice by timely 5 filing an affidavit that the judge has a personal bias or prejudice against the defendant and that such request for change of judge “shall be granted if the historical facts recited in the affidavit support a rational inference of bias or prejudice.” “Adjudicating a request for change of judge based on Rule 12(B) requires an objective, not subjective legal determination by the judge, who is ‘to examine the affidavit, treat the facts recited in the affidavit as true, and determine whether these facts support a rational inference of bias or prejudice.’ “ Voss v. State, 856 N.E.2d 1211, 1216 (Ind.2006) (quoting Sturgeon v. State, 719 N.E.2d 1173, 1181 (Ind.1999)). The law presumes a judge is unbiased and unprejudiced. Garland v. State, 788 N.E.2d 425, 433 (Ind.2003). A change of judge is neither automatic nor discretionary, but rather requires the trial judge to make a legal determination, not a self-analysis, of actual bias or prejudice. Voss, 856 N.E.2d at 1217. The appropriate standard of review of a trial judge's decision to deny a motion for change of judge under Rule 12(B) is whether the judge's decision is clearly erroneous. Sturgeon, 719 N.E.2d at 1182. Reversal requires a showing that leaves us with a definite and firm conviction that a mistake has been made. Id.
In his affidavit, Lopez averred that Judge Humphrey's setting of a high bond in his case coupled with Judge Humphrey's role as a crime victim in the unrelated Brewington case, also prosecuted by Negangard, supports a rational inference of bias or prejudice. Lopez concedes that, given the complicated nature of his case, Judge Humphrey's setting of a high bond alone does not support a rational inference of bias. Appellant's Br. 13. Instead, he argues that Judge Humphrey's involvement as a victim in the Brewington case and his attendance at an appellate oral argument in Brewington on the same day he denied Lopez's motion to reduce bond supply sufficient additional facts that, when viewed along with the initial setting of the high bond, show actual bias or prejudice. We disagree.
Judge Humphrey's involvement as a victim in the Brewington case, more than a year before charges were filed against Lopez, does not support a rational inference of bias or prejudice. Lopez argues that Judge Humphrey and Negangard surely formed some sort of special relationship because Negangard served as Judge Humphrey's advocate in the Brewington case. A prosecutor serves the general public interest as well as advocating for all crime victims, and there is no indication that Judge Humphrey and Negangard engaged in any more than the required prosecutor/victim interactions or formed an out-of-the-ordinary relationship merely because Negangard prosecuted that case. Moreover, the fact that Judge Humphrey attended appellate oral argument in the Brewington case on the same day in which he denied Lopez's motion to reduce bond reveals no rational inference of bias or prejudice in this case. Judge Humphrey did not attend oral argument to support Negangard or the State, but rather because he “felt it critically important to show that neither he, nor others involved in the legal system will be intimidated from carrying out their duties in the administration of justice and enforcement of laws.” Appellant's App. at 25. Contrary to Lopez's arguments, the above-mentioned facts do not support a rational inference of bias or prejudice.
In a very convoluted and abstract argument, Lopez also makes much of Negangard's charging and subsequent dismissal of charges against 106 additional defendants. As is the State, we are unsure as to how this reflects on Judge Humphrey's impartiality, as it was Negangard, and not Judge Humphrey, who both filed the charges against the numerous defendants and moved for dismissal of many of those charges. Judge Humphrey's initial act of issuing arrest warrants based upon probable cause can hardly be viewed as a sign of bias or prejudice against Lopez. We disagree with Lopez that Judge Humphrey's “acquiesce[nce]” as Negangard charged and later dismissed charges against the multiple lesser-involved defendants indicates that Judge Humphrey somehow “ceded control” of the judicial process. Id. at 16. Lopez cites us to no authority, and we are unaware of any, to indicate that Judge Humphrey had the discretion to do otherwise. Indeed, a trial judge has no discretion regarding dismissal of charges when the State moves to dismiss. SeeInd.Code § 35–34–1–13 (). These were prosecutorial decisions regarding which cases to pursue, and Judge Humphrey neither facilitated nor impeded the process. We are simply not persuaded. Lopez has presented no facts to support a rational inference of bias or prejudice, and therefore we conclude that the trial court's denial of Lopez's motion for change of judge pursuant to Criminal Rule 12(B) was not clearly erroneous.
Notwithstanding the absence of facts supporting a rational inference of actual bias or prejudice, Lopez points to the Indiana Code of Judicial Conduct and asserts that Judge Humphrey had the obligation to recuse himself based upon the appearance of bias or prejudice. In addition to the Rules of Criminal Procedure, our supreme court has considered whether the Indiana Code of Judicial Conduct provides independent bases “requiring disqualification even if the analysis required for determination under Criminal Rule 12(B) would not require a change of judge.” See Voss, 856 N.E.2d at 1221.Judicial Conduct Canon 2 requires a judge to perform judicial duties “impartially, competently, and diligently.” Hollinsworth v. State, 928 N.E.2d 201, 202 (Ind.2010). A judge shall perform the duties of judicial office “without bias or prejudice.” Ind. Judicial Conduct Rule 2.3(A). “A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned” including circumstances when “the judge has a personal bias or prejudice concerning a party.” Ind. Judicial Conduct Rule 2.11(A).
The obligation to disqualify exists notwithstanding a judge's...
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