State v. Clemons
| Decision Date | 20 November 1989 |
| Docket Number | No. 22874-9-I,22874-9-I |
| Citation | 782 P.2d 219,56 Wn.App. 57 |
| Parties | STATE of Washington, Respondent, v. Kenneth W. CLEMONS, Appellant. |
| Court | Washington Court of Appeals |
Julie A. Kesler, Washington Appellate Defender, Seattle, for Kenneth Wayne Clemons.
Peter Goldman, Deputy Pros. Atty., Seattle, for state of Wash.
Kenneth Wayne Clemons appeals from his conviction of manslaughter in the first degree, contending that the court erred in denying his motion and affidavit for change of judge and in refusing to grant a mistrial for a violation of an order in limine. We affirm.
Clemons was charged with murder in the second degree in the killing of John Lopez. The jury acquitted him of murder in the second degree, but was deadlocked on the lesser included offense of manslaughter in the first degree. The trial judge declared a mistrial and reset the case on the omnibus calendar. When the case was sent out again for retrial it was assigned to the same trial judge, apparently at random. The defendant then filed a motion and affidavit for change of judge, which was denied on the basis of the judge having made discretionary rulings in the preceding trial.
The court granted a motion in limine excluding testimony about any prior bad acts by Clemons. During trial, Officer Katzer testified he heard a radio transmission about a homicide that mentioned the name Ken Clemons. He then testified, "We, my partner and I, well, we knew Ken Clemons from prior contacts, and we radioed the information about more descriptions, like a date of birth, and possible addresses that he might be heading to in High Point." There was no objection, but during the next recess Clemons moved for a mistrial on the basis of the violation of the order in limine. The motion was denied. Clemons was convicted of manslaughter in the first degree.
RCW 4.12.040 and 4.12.050 establish the procedure for a party to disqualify a judge. The statutory history and a number of cases applying the statutes are reviewed in Marine Power v. Department of Transportation. 1 Neither the express language nor any of the cases cited by either counsel control the resolution of the issue before us, which is: When a mistrial has been declared and the case comes on for retrial before the same trial judge, can a party file an affidavit of prejudice? The significant statutory language is:
Provided, That such motion and affidavit is filed and called to the attention of the judge before he shall have made any ruling whatsoever in the case, ... and before the judge presiding has made any order or ruling involving discretion....
RCW 4.12.050. (Emphasis supplied.) Clemons promptly filed his motion as soon as he knew that the case was assigned to the same judge for retrial. Accordingly, the question is whether the phrase "in the case" includes rulings made during the trial in which the mistrial was ordered. Is there one "case" with two trials or is each trial a separate case?
It is significant that RCW 4.12.050 uses the word "case" rather than "trial". As normally used, "case" is broader and more inclusive than "trial". It involves pre-trial, trial, post-trial and appellate proceedings. 2 In applying RCW 4.12.050, the appellate decisions use the phrase "a new proceeding" to indicate that it is not "in the case". 3 Although we prefer to analyze in the statutory language, we see no substantive difference: a finding that the matter is "a new proceeding" means that it is not "in the case".
The following have been held to constitute "new proceedings": modification of the child custody provisions of a dissolution decree, 4 and deprivation proceedings following a prior hearing establishing delinquency. 5 The following have been held not to be "new proceedings": appointment of a new administrator following a will contest 6; fixing attorney fees following a will contest 7; and disbursement of funds paid into court in an unlawful detainer action and then garnished. 8 None resolve the issue before us.
In finding that a custody modification is a "new proceeding", the court emphasized that it 9 Here we do not have new issues arising out of new facts occurring since the trial. We recognize, of course, that the issue as to second degree murder has been removed by the jury's partial verdict. We do not deem this significant. It is commonplace for various causes of action or various crimes to be eliminated before a case goes to the jury, yet no one would argue that it does not remain the same "case". It is equally immaterial whether the mistrial was declared early in the trial or, as in this case, at the conclusion as the result of a hung jury.
Examining the purpose of statutory scheme gives clear guidance as to resolution of the issue before us. Every law suit must have a loser. This will be easier to bear if, before proceedings begin, the loser had the right to remove a judge who he thought might not be fair to him. The justification for the rule (first by court decision, 10 subsequently by statutory amendment 11) that the affidavit must be filed before discretionary rulings are made is equally clear:
We cannot conclude that it was intended ... that a party could submit to the jurisdiction of the court by waiving his rights to object until by some ruling of the court in a case he becomes fearful that the judge is not favorable to his view of the case. In other words, he is not allowed to speculate upon what rulings the court will make on propositions that are involved in the case and, if the rulings do not happen to be in his favor, to then for the first time raise the jurisdictional question.
Marine Power v. Department of Transportation, 102 Wash.2d at 462, 687 P.2d 202, quoting State ex rel. Lefebvre v. Clifford, supra.
Clemons did not choose to file an affidavit when the case was first assigned to the trial judge, presumably because he was satisfied that he would receive a fair trial. The only change of circumstance is that the judge has made discretionary rulings which Clemons presumably now feels to be unfavorable. This is exactly the "judge shopping" that the timeliness requirement is designed to prevent.
A retrial following a mistrial does not constitute double jeopardy. 12 While the policy considerations are somewhat different, this rule supports treating a retrial as "in the case" and not as a "new proceeding." This result is also consistent with the view that a retrial follows a trial which for one reason or another was not completed, with the purpose of completing the unfinished business.
This interpretation implements the statutory purpose by allowing a party to eliminate a judge in advance to enhance the sense of fairness, but prohibits the elimination of a judge once he has made...
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State v. Berg
...977 (1998). A violation of an order in limine can warrant a mistrial, even though it does not necessarily do so. State v. Clemons, 56 Wash.App. 57, 62, 782 P.2d 219 (1989). Further, a police officer's opinion testimony on a criminal defendant's state of mind is “clearly inappropriate.” 17St......
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State v. Berg
...977 (1998). A violation of an order in limine can warrant a mistrial, even though it does not necessarily do so. State v. demons, 56 Wn. App. 57, 62, 782 P.2d 219 (1989). Further, a police officer's opinion testimony on a criminal defendant's state of mind is "clearly inappropriate."17 Stat......
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State v. Parkison, No. 34493-9-II (Wash. App. 10/9/2007)
... ... RAP 10.10(c). Accordingly, we address only the CrR 3.5 issue ... A trial following a mistrial in the same case is merely a continuation of the first trial and the ongoing prosecution. State v. Buchanan, 78 Wn. App. 648, 652, 898 P.2d 862 (1995) (citing State v. Clemons, 56 Wn. App. 57, 61, 782 P.2d 219 (1989) (refusing to treat a retrial following a mistrial as a new action or proceeding), review denied, 114 Wn.2d 1005 (1990)). It is within a trial court's discretion to decline to reopen a hearing, and we reverse the court's decision only upon a showing of an ... ...
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State v. Parkison, 34493-9-II
...of the first trial and the ongoing prosecution. State v. Buchanan, 78 Wn. App. 648, 652, 898 P.2d 862 (1995) (citing State v. Clemons, 56 Wn. App. 57, 61, 782 P.2d 219 (1989) (refusing to treat a retrial following a mistrial as a new action or proceeding), review denied, 114 Wn.2d 1005 (199......