Smith v. District Court for Fourth Judicial Dist., State of Colo., Division 6

• Decision Date: 08 June 1981
• Docket Number: No. 80SA395,80SA395
• Citation: 629 P.2d 1055
• Parties: Rexford Michael SMITH, Petitioner, v. The DISTRICT COURT FOR the FOURTH JUDICIAL DISTRICT, STATE OF COLORADO, DIVISION 6, the Honorable Hunter D. Hardeman, District Judge, Respondent.
• Court: Colorado Supreme Court

Page 1055

629 P.2d 1055

25 A.L.R.4th 914

Rexford Michael SMITH, Petitioner, v. The DISTRICT COURT FOR the FOURTH JUDICIAL DISTRICT, STATE OF COLORADO, DIVISION 6, the Honorable Hunter D Hardeman, District Judge, Respondent.

No. 80SA395.

Supreme Court of Colorado, En Banc.

June 8, 1981.

Rehearing Denied July 6, 1981.

J. Gregory Walta, Colorado State Public Defender, Kenneth Dresner, Barbara S. Blackman, Deputy State Public Defenders, Denver, for petitioner.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Jeffrey A. Weinman, Asst. Atty. Gen., Denver, for respondent.

ROVIRA, Justice.

This case is an original proceeding brought pursuant to C.A.R. 21. We issued a rule to determine whether the trial court abused its discretion or exceeded its jurisdiction when it denied the motion of the petitioner, Rexford Michael Smith, that the respondent judge disqualify himself from conducting a sentencing hearing because of alleged prejudice against the petitioner. Having concluded that the motion to disqualify is legally insufficient, we now discharge the rule.

The petitioner's verified motion to disqualify the judge was premised on section 16-6-201(1)(d), C.R.S.1973 (1978 Repl.Vol. 8). ¹ The motion was supported by the affidavits of two credible persons who were not related by blood, adoption, or marriage to the petitioner. See section 16-6-201(3) and (5), C.R.S.1973 (1978 Repl.Vol. 8).

The facts alleged in this case are as follows: The petitioner had pled guilty to robbery, section 18-4-301, C.R.S.1973 (1978 Repl.Vol. 8). Upon leaving the courtroom on April 25, 1980, after his counsel had obtained a continuance of his sentencing hearing, the petitioner was overheard by a deputy sheriff saying, in a hostile tone, "That senile old motherfucker, he ought to be shot. I'll kill him." The deputy believed that petitioner was referring to the judge and informed the judge about the petitioner's statement. Later the same day, the deputy sheriff again overheard the petitioner say, "I'll shoot the motherfucker. His day is coming maybe sooner than he thinks." The deputy included this incident in a report he prepared on the petitioner's behavior. Meanwhile, the judge contacted petitioner's counsel, told him in chambers what his client had said, and commented, "I think he would do it."

It is impossible to determine from the affidavits accompanying the motion whether the judge was informed about the petitioner's second statement prior to talking to defense counsel. The record does indicate that the deputy sheriff's incident report was included in a supplementation of the probation department's presentence investigation report. ²

The trial court, in ruling on the legal sufficiency of the petitioner's motion, found that the petitioner's alleged threats and his capacity to carry them out would make no difference in its ultimate disposition of the case. It denied the motion and proceeded to sentencing.

The trial court's ruling was necessarily premised upon the legal sufficiency of the motion and affidavits. Such a determination is subject to the independent review of an appellate court. People v. District Court, supra, n. 1; People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915). The test of the legal sufficiency of a motion to disqualify a judge is whether the motion and affidavits state facts "from which it may reasonably be inferred that the respondent judge has a bias or prejudice that will in all probability prevent him or her from dealing fairly with the petitioner." Carr v. Barnes, 196 Colo. 70, 72, 580 P.2d 803, 804 (1978); People v. District Court, n. 1; Walker v. People, 126 Colo. 135, 248 P.2d 287 (1952); People ex rel. Burke v. District Court, supra. Unless a reasonable person could infer that the judge would in all probability be prejudiced against the petitioner, the judge's duty is to sit on the case. Walker v. People, supra.

"Prejudice" is not easily defined. Since it is a mental condition or status a certain "bent of mind" (People v. Botham, Colo., 629 P.2d 589 (589 (1981)). it cannot be demonstrated, ordinarily, by direct proof. People ex rel. Burke v. District Court, supra. Prejudice in the present procedural context has been described by our court as "a leaning toward one side of a question involved, from other considerations than those belonging to it, or a bias in relation thereto which would in all probability interfere with fairness in judgment." Walker v. People, supra, 126 Colo. at 146, 248 P.2d at 294, quoting People ex rel. Burke v. District Court, supra.

Prejudice must be distinguished from the sort of personal opinions that as a matter of course arise during a judge's hearing of a cause. The general rule of law is that what a judge learns in his judicial capacity is a proper basis for judicial observations, and that the use of such information is not the kind of matter that results in disqualification. United States v. Patrick, 542 F.2d 381 (7th Cir. 1976); United States v. Bernstein, 533 F.2d 775 (2d Cir. 1976); Davis v. Bd. of School Commissioners, 517 F.2d 1044 (5th Cir. 1975); United States v. Sclafani, 487 F.2d 245 (2d Cir. 1973), cert. denied, 414 U.S. 1023, 94 S.Ct. 445, 38 L.Ed.2d 313 (1973).

It must be presumed in this case that the judge was told about the petitioner's threats against him and also that he formed an opinion that the petitioner was capable of carrying such threats out. ³ The facts set forth in affidavits supporting a motion to disqualify a judge are not subject to a trial court's inquiry, but are presumed to be true. Carr v. Barnes, supra; Walker v. People, supra; People ex rel. Burke v. District Court, supra. Petitioner argues that such a frame of mind in all probability would affect a judge's ability to evaluate the factors that must be weighed in making a sentencing decision, in particular, his ability to decide whether the petitioner should be incarcerated or granted probation. We do not find this inference reasonable.

The petitioner's initial threat was not seen or heard by the judge, though it was made in the courtroom while court was in session. There is nothing inherently improper about such behavior being communicated to the trial judge. Indeed, the petitioner's behavior during judicial proceedings and while in custody may well become relevant facts for the court to consider as part of the factors it weighs in sentencing. ⁴ The facts here provide no reasonable basis for concluding that the judge's presumed opinion about the petitioner's potential dangerousness was motivated solely by the deputy sheriff's reports. The petitioner's motion to disqualify and its accompanying affidavits do not support the inference that the judge leaned toward severity in sentencing from considerations that were irrelevant to his judicial decision making. The facts alleged do not demonstrate a bias that in all probability would interfere with the fairness of the judge's sentencing decision.

Neither section 16-6-201, C.R.S.1973 (1978 Repl.Vol. 8), nor Crim.P. 21(b) require disqualification of a judge on the basis of a party's subjective conclusion that the judge is not impartial because of acts or statements made by the party.

Because the motion and affidavits here are legally insufficient to show prejudice, we affirm the trial court's ruling dismissing the petitioner's motion.

Accordingly, the rule to show cause is discharged.

ERICKSON and DUBOFSKY, JJ., specially concur in the result only.

LOHR, J., dissents.

ERICKSON, Justice, specially concurring in the result only:

The sole issue for review is whether the defendant's motion for disqualification of judge and the supporting affidavits, which we must accept as true, establish that the judge was prejudiced against the defendant. Botham v. People, Colo., 629 P.2d 589 Carr v. Barnes, 196 Colo. 70, 580 P.2d 803 (1978); People v. District Court, 192 Colo. 503, 560 P.2d 828 (1977). The motion to recuse the judge is legally insufficient because it is supported by affidavits which do not establish bias, prejudice, or a bent of mind. The prejudice issue is being considered totally out of context when viewed in the light of the facts of this case. Therefore, I concur in the result reached by the majority. The rule to show cause should be discharged.

A statement of the factual background upon which the motion was made provides a sound basis for discharging the rule to show cause. The defendant, while intoxicated, robbed a Taco John restaurant by threatening the employees with a pistol. He was initially charged with aggravated robbery. Section 18-4-302, C.R.S.1973 (1978 Repl.Vol. 8). As the result of a plea agreement, the defendant was permitted to plead guilty to simple robbery. Section 18-4-301, C.R.S.1973 (1978 Repl.Vol. 8). When the defendant's plea was entered, the judge ordered a presentence investigation report, and set a date for sentencing. Section 16-11-102, C.R.S.1973 (1978 Repl.Vol. 8) (1980 Supp.). Crim.P. 32(a).

On the date set for sentencing, defense counsel, contrary to the defendant's wishes, moved for a continuance. The judge had reviewed the presentence investigation report and was prepared to impose sentence at that time. ¹ However, he granted the motion for a continuance so defense counsel could obtain a psychiatric report. The defendant was an alcoholic with a history of violent and assaultive conduct when he was drinking. The presentence investigation report contained the recommendation that probation be denied on several grounds, which included a prediction that there was an extremely high probability that the defendant would repeat his assaultive conduct. Moreover, the report contained facts relating to a prior arrest where the defendant stated to the arresting officer that he would get a gun and kill a cop when he was bonded out. When the arresting officer asked the defendant if he was referring to a specific officer, the defendant replied...