People v. Lanari

• Citation: 926 P.2d 116
• Decision Date: 07 March 1996
• Docket Number: No. 93CA2081,93CA2081
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert B. LANARI, Defendant-Appellant. . V
• Court: Court of Appeals of Colorado

Page 116

926 P.2d 116

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert B. LANARI, Defendant-Appellant.

No. 93CA2081.

Colorado Court of Appeals Div. V.

March 7, 1996.

As Modified on Denial of Rehearing

May 2, 1996. ^*

Certiorari Denied Oct. 21, 1996.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Clement P. Engle, Senior Assistant Attorney General, Denver, for Plaintiff-Appellee.

David Vela, Colorado State Public Defender, Kathleen A. Lord, Deputy State Public Defender, Denver, for Defendant-Appellant.

Opinion by Judge TAUBMAN.

In this appeal relative to a judgment of conviction of first degree murder and attempted first degree murder, defendant, Robert B. Lanari, challenges an order of the trial court denying his motion for substitution of judge and urges error in the exclusion of the testimony of an expert witness pursuant to CRE 702. He also challenges his sentence. We affirm.

Defendant and his wife separated in March 1986 and she subsequently established an intimate relationship with defendant's close friend and neighbor. On the morning of June 10, 1986, the wife revealed this relationship to defendant and they agreed to meet at the friend's house later that evening to talk. Shortly after arriving at the friend's house, defendant shot and killed the friend and seriously wounded his wife.

At trial, defendant asserted, inter alia, a heat of passion manslaughter defense and endorsed a psychiatric witness to testify in support of this claim. However, the trial court granted the People's pretrial motion to prohibit the psychiatrist from testifying. The jury was instructed on the elements of heat of passion manslaughter, but found defendant guilty of first degree murder and attempted first degree murder.

On appeal, a division of this court affirmed, holding, inter alia, that the trial court did not abuse its discretion in excluding the psychiatrist's testimony. See People v. Lanari, 811 P.2d 399 (Colo.App.1989). On certiorari review, the supreme court remanded the case for further proceedings on that issue because it found the record inadequate to permit informed appellate review of the trial court's exercise of its discretion under CRE 702. See Lanari v. People, 827 P.2d 495 (Colo.1992).

Specifically, the supreme court determined that the trial court had not clearly explained the basis for its ruling, had made erroneous observations concerning heat of passion manslaughter and its relationship to the defenses of insanity and impaired mental condition, and that defendant's offer of proof failed to identify the precise basis for the psychiatrist's opinions. It therefore concluded that further proceedings were necessary to establish a sufficient basis for the trial court's exercise of discretion under CRE 702.

Upon remand to the trial court, defendant filed a motion for substitution of the judge in which he alleged that the trial judge was not fair and impartial on this issue and that the judge's rulings in the matter suggested that he was biased against defendant. The People responded that the motion did not state legally sufficient grounds for disqualification and was not timely filed.

To avoid any appearance of impropriety, the trial judge transferred the motion for substitution to the chief district court judge for a ruling on possible disqualification. After a hearing on the matter, the chief judge determined that the motion did not state sufficient legal grounds for disqualification and was untimely filed. Accordingly, the case was returned to the original trial judge to determine the admissibility of the expert testimony.

In June 1993, defendant submitted a seven-page written offer of proof as to the psychiatrist's proposed testimony. After a hearing based on the offer of proof and the supreme court's remand order, the trial court issued a detailed written order again concluding that the testimony should be excluded. The court found that the offer of proof did not sufficiently discuss facts which would support the psychiatrist's conclusions, that the scope of his opinions was so broad as to be irrelevant, and that the content of his proposed testimony was too vague to be of assistance to the jury. This appeal followed.

I. Motion for Substitution of Judge

First, defendant contends that the trial court erred in denying his motion for substitution of the judge pursuant to § 16-6-201(d), C.R.S. (1986 Repl.Vol. 8A) and Crim.P. 21. We do not agree.

A.

The People assert that defendant's motion was not timely filed. However, even if we assume that defendant filed his motion for substitution of the judge in a timely manner, we nevertheless find the motion legally insufficient to establish bias or prejudice.

To be legally sufficient, a motion for disqualification of a judge and supporting affidavits must state facts from which it may reasonably be inferred that the judge has a bias or prejudice that in all probability will prevent him or her from dealing fairly with the defendant. People v. District Court, 898 P.2d 1058 (Colo.1995).

Here, defendant asserts that the trial court's prior ruling on the admissibility of the psychiatrist, which was based on the judge's erroneous views on heat of passion manslaughter, created a strong appearance of bias. However, a judge's rulings on issues presented in prior proceedings, even if erroneous, are insufficient by themselves to demonstrate disqualifying bias or prejudice. Walker v. People, 126 Colo. 135, 248 P.2d 287 (1952); People v. Boehmer, 767 P.2d 787 (Colo.App.1988).

Thus, even if it were deemed to be timely filed, defendant's motion and affidavits failed to establish prejudice by the judge against the defendant, and hence, the motion was properly denied.

B.

We also reject defendant's contention that by transferring the motion for substitution to another judge, the trial judge effectively recused himself from further consideration of any issue in the case.

Because defendant did not raise this issue before the trial court, we consider his claim under the plain error standard of review. People v. Atkins, 885 P.2d 243 (Colo.App.1994); Crim.P. 52(b). Under this standard, the record must show that the alleged error so undermined the basic fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. Wilson v. People, 743 P.2d 415 (Colo.1987).

Section 16-6-201, C.R.S. (1986 Repl.Vol. 8A) and Crim.P. 21 provide the procedure for the disqualification of a judge if he or she is "in any way interested or prejudiced with respect to the case, the parties, or counsel." Section 16-6-201(3), C.R.S. (1986 Repl.Vol. 8A) further provides that if the verified motion for change of judge and supporting affidavits state facts showing grounds for disqualification, the judge must enter an order disqualifying himself or herself. After such disqualification, the judge may require a full hearing on the issues raised by the affidavits and shall request that another judge conduct the hearing. See People in Interest of A.L.C., 660 P.2d 917 (Colo.App.1982).

Similarly, Crim.P. 21(b) provides that when the motion and affidavits sufficiently state facts showing grounds for disqualification, the judge must enter an order disqualifying himself or herself and then "notify ... the chief judge of the district, who shall assign another judge...."

Here, the original trial court judge did not purport to disqualify himself and did not find that defendant had sufficiently stated facts requiring disqualification. Even though he could have decided the motion for substitution of judge himself, he, nevertheless, acting out of an abundance of caution, requested that the chief judge rule on this motion.

In our view, the referral of the motion for substitution of judge to the chief judge was not an abuse of discretion, and such procedure did not result in the intentional or unintentional disqualification of the trial court judge. Indeed, nothing in either § 16-6-201 or Crim.P. 21(b) precludes the use of such a procedure in order to determine the sufficiency of the allegations of a motion for substitution of judge.

Furthermore, once the chief judge determined that the motion for substitution of judge should be denied, it was appropriate for him to remand the case to the original trial court judge. See People in Interest of A.L.C., supra (if after hearing a motion to disqualify a judge, and concluding that the findings do not support disqualification, the challenged judge may resume consideration of the case).

Defendant also asserts that Beckord v. District Court, 698 P.2d 1323 (Colo.1985) supports his proposition. However, Beckord is distinguishable from the instant case. In that case, the judge presiding over a multi-district litigation reassigned part of the consolidated action, which he concluded would be improper for him to hear, to another judge. The supreme court determined that the judge could not recuse himself from only one part of the multi-district litigation and that, therefore, his transfer of one issue effectively disqualified him from hearing any issue in the case.

Here, unlike the situation in Beckord, the trial judge made no conclusions that it would be improper for him to consider the issue on remand.

The actions of the trial judge did not prejudice defendant, did not undermine the fairness of the trial, and were not error, much less plain error. Wilson v. People, supra. Thus, the original trial court judge was not precluded from presiding over the issues on remand. See People in Interest of A.L.C., 660 P.2d 917 (Colo.App.1982) (if findings at hearing before second judge do not support disqualification, the challenged judge may resume consideration of the case).

II. Admissibility of Expert Testimony

Next, defendant contends that, on remand, the trial court erred in once again excluding the psychiatrist's expert testimony pursuant to CRE...