State v. Barnes
| Decision Date | 03 November 1998 |
| Docket Number | No. WD,WD |
| Citation | 980 S.W.2d 314 |
| Parties | STATE of Missouri, Respondent, v. Jason BARNES, Appellant. 55329. |
| Court | Missouri Court of Appeals |
Christina L. Kime, Piedmont, for appellant.
Geoffrey W. Preckshot, Asst. Pros. Atty., Fulton, for respondent.
Before SMART, P.J., and ELLIS and HOWARD, JJ.
On November 14, 1997, Jason Barnes was convicted of the Class A misdemeanors of assault in the third degree, § 565.070, RSMo 1994 1, and false imprisonment, § 565.130. Barnes was sentenced to concurrent terms of six months in the Callaway County jail. Barnes raises four points on appeal. First, he contends that the trial judge erred in failing to disqualify himself from hearing the case because of personal bias against the defendant's sexual conduct. He next contends that the trial court erred in convicting him of assault in the third degree because the victim suffered no physical injury as required by § 565.070. Barnes next maintains that the trial court erred in convicting him of the charges of assault in the third degree and false imprisonment because the victim's conflicting testimony was uncorroborated and insufficient to support the convictions. Finally, Barnes asserts that the trial court erred in convicting him of false imprisonment because the indictment did not include the date of the offense or the county in which the offense occurred and the failure to include such information prejudiced him.
Affirmed.
At trial, Barnes and the victim gave conflicting stories regarding the events which took place on July 17, 1997. On that day, the victim, Tammy Lee Moore, went to the home she had been sharing with Barnes for several months. Moore testified she arrived at approximately 3:00 in the afternoon to pick up some clothing because she was planning to leave Barnes. After Moore arrived, Barnes noticed a "hickey" on her neck and when asked about it, Moore told him it was from Barnes' step-brother, Timothy Hulsey. Moore then informed Barnes that she had been sexually intimate with Hulsey.
Moore testified that while she was in the closet gathering her clothing, Barnes picked her up and threw her on the couple's waterbed. He then got on top of her and demanded to know why she was leaving him. She managed to free herself enough to get from the bedroom to the bathroom where Barnes hit Moore's head against the shower stall. From the bathroom, the altercation moved to the living room where Barnes picked the victim up by placing a wrap-around skirt around her neck. Moore testified that she was unable to breathe and was becoming faint when she managed to kick Barnes in the groin, causing Barnes to release her.
Moore testified that she attempted to leave many times and that Barnes "held [her] down" each time. Barnes finally agreed to let her go. Moore gathered some clothes and left. Once outside, she contacted the police.
Barnes testified that following the disclosure of Moore's relationship with his step-brother, he told Moore to pack her things and "go stay with him." He said he then began packing her things for her. He testified that at that point, Moore became hysterical and wanted to know where she was going to live. She began kicking and hitting him, at one point kicking him in the groin. Barnes restrained Moore, picked her up and carried her from the home. He then carried her belongings from the residence, placing them in the front yard.
After a bench trial, Barnes was found guilty of the misdemeanors of assault in the third degree under § 565.070 and false imprisonment under § 565.130. Barnes raises four points on appeal.
Barnes first contends that the trial judge erred in failing to disqualify himself because of his alleged personal bias against Barnes' conduct in living with the victim and having sexual relations outside of marriage. Immediately prior to convicting and sentencing Barnes, the trial judge made the following remarks:
I would like to state for the record that I find the conduct of both parties to this case, both the Defendant and the prosecuting witness, absolutely horrible, disgusting. I can't say anything bad enough about it. I'm very sorry that the law makers of this state saw fit to take out of our statutes the old laws against lewd and lascivious co-habitation. I think they should still be there.
The trial court then went on to find Barnes guilty of both assault in the third degree and false imprisonment and sentenced Barnes to one-year prison terms on each count.
At the final disposition hearing on December 12, 1997, the judge commented that he "[was] not too impressed by the moral character of either [Barnes or Moore]." Barnes' counsel pointed out to the judge that it was "not uncommon" for young people to live together in this day and age, to which the judge replied, After hearing arguments from both sides, the judge then reduced Barnes' sentence to six months in the Callaway County jail on each count, to run concurrently.
Barnes asserts that the trial judge's remarks evidenced an attitude or disposition hostile to him and that such remarks precluded a fair hearing. Thus, Barnes believes that the trial judge should have disqualified himself from hearing the case and his failure to do so resulted in reversible error.
Barnes relies on State ex rel. Wesolich v. Goeke, 794 S.W.2d 692 (Mo.App.1990), a dissolution matter, to support his contention that his rights were violated. In that case, in pretrial conference, with both counsel present, the judge and the attorneys discussed possible dispositions of the case. In those discussions, the judge indicated to the attorneys that he might employ the resolution used in his own dissolution matter. Wesolich, 794 S.W.2d at 694. Specifically, the judge proposed, that, as in the judge's case, Husband would retain custody of the children and remain in the family home until emancipation of the youngest child. At that time, Husband would pay to Wife her share of the value of the house in equal installments over a five-year period. Id. Wife presented a motion for a change of judge stating that the comments of the judge regarding his own dissolution evidenced prejudice and bias against her. 2 After argument by both attorneys, the judge denied the motion. Id.
The court found that the judge's comments regarding his own personal dissolution "not only pertained to matters which [were] highly personal in nature but also involved issues which [were] commonly perceived as emotionally laden." Id at 698. Additionally, the court found that "[a] reasonable person could have perceived the judge's statements not only as tantamount to comments on disputed matters in the present action but also as indicative of an alignment with one of the parties to the action." Id. Based on these findings, the court held that the judge should be prohibited from any further action on the case. Id. at 699.
The right to disqualify a judge is "one of the keystones of our legal administrative edifice." State ex rel. Campbell v. Kohn, 606 S.W.2d 399, 401 (Mo.App.1980). Missouri's Code of Judicial Conduct calls for a judge to recuse himself in a proceeding where the judge's impartiality could reasonably be called into question, including instances where the judge "has a personal bias or prejudice concerning the proceeding." Rule 2, Code of Judicial Conduct, Canon 3(D)(1)(a). While it is presumed that a judge will not undertake to preside over a trial in which he could not be impartial, State v. Lopez, 898 S.W.2d 563, 567 (Mo.App.1995), if from the record a reasonable person could find a semblance of impropriety, Canon 3(D) requires recusal. State. v. Nunley, 923 S.W.2d 911, 918 (Mo. banc 1996).
The human mind is not a blank slate. Wesolich, 794 S.W.2d at 697. Judges are not required to rid themselves of moral values which may differ from those of the individual litigants. Views which are widely held in one generation may differ from those of a later generation, but judges are under no obligation to discard allegiance to norms which in their view have provided useful order and stability in society. The mere possession of views regarding the law or the conduct of the parties does not amount to prejudice. Id. "Prejudice" refers to a judge's attitude or disposition toward a party--either a "spirit of ill-will against one of the litigants," or a spirit of favoritism towards one of them which would tend to affect the court's resolution of the issues. Id. A judge should recuse himself only when the facts of the case show such a degree of prejudice as to suggest a fixed prejudgment and the preclusion of a fair weighing of the evidence. Id. at 698. Remarks made at the conclusion of a case, even those referring to the defendant in harsh, critical terms, do not evince bias when they are expressions of social outrage or concern. Haynes v. State, 937 S.W.2d 199, 201 (Mo. banc 1996).
Barnes' case is entirely distinguishable from Wesolich. In this case, there was nothing in the judge's comments which a reasonable person would have perceived as indicating that the judge had prejudged and closed his mind as to a disputed matter. The cohabitation and lifestyles of Barnes and Moore were not disputed. Nor would a reasonable person perceive the judge's comments as "indicative of alignment with one of the parties to the action." Id. at 698. The remarks reflected a personal opinion regarding social norms and a distaste for the conduct of the defendant and the victim. While the remarks were gratuitous in the sense that they were not a necessary part of the analysis, there is no indication from the record that the judge's personal opinion precluded a fair weighing of the evidence. This court does not agree that the trial judge had any duty to recuse himself from the case. Point I is denied.
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