State v. Fie, 389A86

• Court: United States State Supreme Court of North Carolina
• Citation: 359 S.E.2d 774,320 N.C. 626
• Docket Number: No. 389A86,389A86
• Parties: STATE of North Carolina v. Floyd Rufus FIE and Steve Harverson.
• Decision Date: 03 September 1987

Page 774

359 S.E.2d 774

320 N.C. 626

STATE of North Carolina v. Floyd Rufus FIE and Steve Harverson.

No. 389A86.

Supreme Court of North Carolina.

Sept. 3, 1987.

Lacy H. Thornburg, Atty. Gen. by Joan H. Byers, Sp. Deputy Atty. Gen., Raleigh, for the State.

John E. Shackelford, Asheville, for defendant Floyd Rufus Fie.

Malcolm Ray Hunter, Jr., Appellate Defender by Geoffrey C. Mangum, Asst. Appellate Defender, Raleigh, for defendant Steven Harverson.

WEBB, Justice.

This case brings to the Court the question of the standard to be applied when a defendant makes a motion that a judge be recused. Judge Martin in his concurring opinion in the Court of Appeals said that in his view "the burden is upon the party moving for disqualification to demonstrate objectively that grounds for disqualification actually exist. Such a showing must consist of substantial evidence that there exists such a personal bias, prejudice or interest on the part of the judge that he would be unable to rule impartially." Judge Martin relied, on State v. Duvall, 50 N.C.App. 684, 275 S.E.2d 842, rev'd on other grounds, 304 N.C. 557, 284 S.E.2d 495 (1981) and Love v. Pressley, 34 N.C.App. 503, 239 S.E.2d 574 (1977), disc. rev. denied, 294 N.C. 441, 241 S.E.2d 843 (1978). These cases support Judge Martin's position. Nevertheless, we also agree with Judge Wells that a party has a right to be tried before a judge whose impartiality cannot reasonably be questioned. Code of Judicial Conduct, Canon 3(C)1 (1973).

N.C.G.S. § 15A-1223 provides in pertinent part:

* * *

(b) A judge, on motion of the State or the defendant, must disqualify himself from presiding over a criminal trial or other criminal proceeding if he is:

(1) Prejudiced against the moving party or in favor of the adverse party; or

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(4) For any other reason unable to perform the duties required of him in an impartial manner.

It appears that under this section Judge Burroughs should not have been disqualified. This does not settle the matter. A judge may be disqualified for reasons other than those stated in the statute. We said in Ponder v. Davis, 233 N.C. 699, 706, 65 S.E.2d 356, 360 (1951):

It is not enough for a judge to be just in his judgment; he should strive to make the parties and the community feel that he is just; he owes this to himself, to the law and to the position he holds. ... "The purity and integrity of the judicial process ought to be protected against any taint of suspicion to the end that the public and litigants may have the highest confidence in the integrity and fairness of the courts." (Quoting, Haslam v. Morrison, 113 Utah 14, 190 P.2d 520.)

N.C.G.S. § 5A-15 which governs plenary proceedings for criminal contempt provides that if "the criminal contempt is based upon acts before a judge which so involve him that his objectivity may reasonably be questioned, the order...