Smulls, v. State

• Decision Date: 11 January 2000
• Citation: 10 S.W.3d 497
• Parties: (Mo.banc 2000) . Supreme Court of Missouri Herbert Smulls, Appellant, v. State of Missouri, Respondent. Case Number: SC81205 Handdown Date: 0
• Court: Missouri Supreme Court

10 S.W.3d 497 (Mo.banc 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Supreme Court of Missouri

Herbert Smulls, Appellant, v. State of Missouri, Respondent.

Case Number: SC81205

Handdown Date: 01/11/2000

Appeal From: Circuit Court of St. Louis County, Hon. Emmett O'Brien

Counsel for Appellant: William J. Swift

Counsel for Respondent: Breck K. Burgess

Opinion Summary:

Herbert Smulls appeals from his Rule 29.15 hearing denying post-conviction relief. He challenges, among other issues, the ability of any judge in St. Louis County, including Judge O'Brien who presided over his post-conviction proceeding, to conduct the proceeding fairly and impartially.

REVERSED AND REMANDED.

Court en banc holds:

1) The court did not err in refusing to disqualify all St. Louis County judges. Disqualification and recusal are case-by-case determinations that cannot and should not be resolved with blanket orders, at least not without agreement of all affected judges.

2) A) With regard to Judge O'Brien's familial and professional relationships, individually or collectively, the allegations in Smulls' motions, if true, do not constitute the types of relationships that would raise doubt or create an appearance of impropriety to a reasonable person.

B) With regard to the possible bias based on Judge O'Brien's relationship with a trial judge that Smulls previously appeared before, at the time Judge O'Brien ruled on Smulls' motions to disqualify himself, there were no facts presented to suggest a reason for his recusal. Months later, the trial judge testified at deposition regarding possible communications he may have had with Judge O'Brien. The extent to which Judge O'Brien expressed his views is unknown. A hearing on the record before another judge is required, if either party so requests, to resolve the issue of Judge O'Brien's impartiality. If there is a hearing, and Judge O'Brien should have recused, a new hearing on the merits should be granted

Covington, J.; White, Holstein, Wolff and Benton, JJ., concur; Price, C.J., concurs in result.

Dissenting Opinion Summary:

Limbaugh, J. dissents in separate opinion filed.

This author agrees with the majority holding that Smulls was not entitled to a circuit-wide disqualification but would reject Smulls' claim that Judge O'Brien should be disqualified, or that a hearing to review the need for disqualification is necessary. This author states that: To compel a hearing on a motion to disqualify, the movant must allege facts that, if true, would require the judge's disqualification, and those allegations must be sworn. The deposition testimony shows an uncontroverted denial that any improper communication took place and, at most, that Judge O'Brien criticized a Supreme Court opinion that the Court itself modified. The effect of the majority's new rule is to do away with the threshold showing of disqualifying bias and the presumption that judges act with honesty and integrity and will not undertake to preside in trials in which they cannot be impartial, promoting judge-shopping and hearings to manipulate the system.

Opinion Author: Ann K. Covington, Judge

Opinion Vote: REVERSED AND REMANDED. White, Holstein, Wolff and Benton, JJ., concur; Price, C.J., concurs in result; Limbaugh, J., dissents in separate opinion filed.

Opinion:

Opinion modified by Court's own motion on February 8, 2000. This substitution does not constitute a new opinion.

Herbert Smulls, appellant, appeals from his Rule 29.15 hearing denying post-conviction relief. He challenges, among other issues, the ability of any judge in St. Louis County, including the judge who presided over his Rule 29.15 proceeding, to conduct the proceeding fairly and impartially. The judgment is reversed and the cause remanded.

In State v. Smulls, 935 S.W.2d 9 (Mo. banc 1996), this Court reviewed appellant's motion to disqualify the trial judge, Judge Corrigan, from presiding over appellant's Rule 29.15 hearing. This Court held that the judge erred in overruling appellant's motions to disqualify and remanded the cause for a hearing before another judge.

After remand, Judge O'Toole,¹ the presiding judge, assigned appellant's case to Judge Campbell. The state filed a motion for change of judge under Rule 55.01. Judge Campbell sustained the motion. The presiding judge then assigned the case to Judge Sweeney. Judge Sweeney recused himself on his own motion. Appellant asked for the case to be returned to Judge Campbell. (Judge Campbell later testified in his deposition that he consulted with Judge O'Toole and decided that he should not preside over appellant's post-conviction motion.) The case was assigned to Judge Cohen, who also recused himself from hearing the case. Ultimately the case was assigned to Judge O'Brien.

Over the course of the proceedings, appellant filed several related motions and supplements, including motions to disqualify all past and present St. Louis County judges, a motion to voir dire Judge O'Brien, and a motion to disqualify Judge O'Brien. Judge O'Brien overruled the various motions.

In his second point relied on, appellant makes four claims: (1) the motion court should have disqualified all St. Louis County judges; (2) the motion court should have disqualified itself; (3) the motion court should have answered voir dire questions directed to it regarding disqualification; and (4) the motion court should have allowed the presiding judge of the Twenty-First Judicial Circuit to hear the motions for disqualification.

It is presumed that a judge acts with honesty and integrity and will not undertake to preside in a trial in which the judge cannot be impartial. State v. Kinder, 942 S.W.2d 313, 321 (Mo. banc 1996). This presumption is overcome and disqualification is required if a reasonable person would find an appearance of impropriety and doubt the impartiality of the court.² Id.; see also State v. Nunley, 923 S.W.2d 911, 918 (Mo. banc 1996). In Haynes v. State, 937 S.W.2d 199, 203 (Mo. banc 1996), this Court defined "reasonable person" in the context of a test for a disqualifying bias: "A reasonable person . . . is not one who is ignorant of what has gone on in the courtroom before the judge. Rather, the reasonable person knows all that has been said and done in the presence of the judge."

There must be a factual context that gives meaning to the kind of bias that requires disqualification of a judge. Haynes, 937 S.W.2d at 203. Specifically, a disqualifying bias or prejudice is one that has an extrajudicial source and results in an opinion on the merits on some basis other than what the judge learned from the judge's participation in a case. State v. Hunter, 840 S.W.2d 850, 866 (Mo. banc 1992). In cases requiring recusal, the common thread is "either a fact from which prejudgment of some evidentiary issue in the case by the judge may be inferred or facts indicating the judge considered some evidence properly in the case for an illegitimate purpose." Haynes, 937 S.W.2d at 204. Appellant's first issue involves his motions requesting disqualification of all of the judges of the Circuit Court of St. Louis County. This Court's decision in State v. Nunley controls. In Nunley, the acting presiding judge of the Sixteenth Judicial Circuit entered an order that recused all judges of that circuit from hearing the case. 923 S.W.2d at 917. This Court held that the decision to disqualify judges should be made on a case-by-case basis and that "absent agreement by all judges of a circuit, it is improper for a presiding judge to disqualify all judges in a circuit." Id. at 918. Similarly, in State v. Taylor, 929 S.W.2d 209, 220 (Mo. banc 1996), where the defendant claimed that the resentencing judge would "appear to be giving the original judge a vote of confidence" if the resentencing judge again imposed the death penalty, this Court held that the potential for a claim that one judge ruled merely to support another judge's prior decision is insufficient to warrant disqualification, recognizing that "[i]n many instances, judges reconsider rulings by other judges." Id.

Appellant cites United States v. Jordan, 49 F.3d 152 (5th Cir. 1995), in support of his contention. Jordan addressed the disqualification of federal judges under 28 U.S.C. section 455(a). In that case, Judge Harmon presided over Jordan's trial for wire fraud and money laundering, in which there was a receiver for Jordan's company. Id. at 156. Before she became a judge, Harmon personally represented the receiver in a related assault case in which Jordan's daughter was the complainant. Id. The Fifth Circuit found that Judge Harmon abused her discretion by not recusing herself from Jordan's trial. Id. at 158. The court affirmed the conviction but vacated the sentence, taking into account its perceived harshness. Id. at 160. As part of its remand order, the Fifth Circuit took the "additional precaution of asking that a judge from another district be appointed to resentence Appellant," explaining that asking another judge in the same circuit may "exacerbate the appearance of impropriety" because it may appear to require one judge to review the rulings of another. Id. at n.18.

This Court perceives no valid reason to depart from the rationale of State v. Taylor and State v. Nunley. The rationale is sound. Disqualification and recusal are case-by-case determinations that cannot and should not be resolved with blanket orders, at least not without the agreement of all affected judges. Nunley, 923 S.W.2d at 917-18. "Given the definition of a disqualifying bias and prejudice, a particular judge is in the best position to determine if recusal is necessary." Id. at 917.

Appellant also points to portions of a criminal trial docket in State v. Phillip Dopuch, No. 97 CR-000526 (St. Louis County Cir. Ct., complaint filed Jan. 24, 1997), to support his claim that all St. Louis County circuit judges should be...