State v. Fleming

• Decision Date: 08 April 1980
• Docket Number: No. 35601,35601
• Citation: 245 Ga. 700,267 S.E.2d 207
• Parties: The STATE v. FLEMING.
• Court: Georgia Supreme Court

Page 207

267 S.E.2d 207

245 Ga. 700

The STATE v. FLEMING.

No. 35601.

Supreme Court of Georgia.

Argued Jan. 14, 1980.

Decided April 8, 1980.

Vickers Neugent, Dist. Atty., Robert Sparks, Asst. Dist. Atty., for appellant.

Millard C. Farmer, Jr., Newnan, M. Dale English, Adel, for appellee.

JORDAN, Presiding Justice.

This case presents a question apparently never squarely addressed by Georgia courts before, i. e., whether a trial judge, faced with a motion to recuse, may preside over his own evidentiary, recusal hearing. ¹

Judge H. W. Lott denied a motion to disqualify himself filed on behalf of the State of Georgia by the district attorney handling the state's case against Larry Donnell Fleming. The district attorney's affidavit contained in his recusal motion alleged, among other things, that the trial judge was personally biased and prejudiced against the district attorney. In his ruling denying the motion, Judge Lott referred to the testimony taken, thus indicating that the recusal hearing over which he presided was an evidentiary one in which Judge Lott also became the trier of facts.

1. We agree with the state that Judge Lott should not have presided at his own recusal hearing. ²

Other states that have dealt with this problem have reached a variety of results. See, e. g., Amidon v. State, 604 P.2d 575 (Alaska 1979); Cline v. Sawyer, 600 P.2d 725 (Wyo. 1979); State v. Pondexter, 225 Kan. 425, 590 P.2d 1074 (1979); State v. Aubert, 393 A.2d 567 (N.H. 1978); State v. Smith, 242 N.W.2d 320 (Iowa 1976). We note also that Texas has the following statute covering this specific point: "A district judge shall request the Presiding Judge to assign a judge of the Administrative District to hear any motions to recuse such district judge from a case pending in his court." Vernon's Ann. Civ. St. Art. 200a, § 6. This statute has been interpreted to mean that a district judge has a mandatory duty to request the Presiding Judge to assign another district judge to hear a motion to recuse in a case pending before that judge. McLeod v. Harris, 582 S.W.2d 772, 775 (Tex. 1979).

The following statute governs the procedure used in federal courts: "Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding." 28 USCA § 144. This language has been interpreted to mean that "(O)n . . . motion (for disqualification) it is the duty of the judge to pass only on the legal sufficiency of the facts alleged to ascertain whether they support a charge of bias or prejudice. (Cits.) Neither the truth of the allegations nor the good faith of the pleader may be questioned, regardless of the judge's personal knowledge to the contrary. (Cits.) The test is whether, assuming the truth of the facts alleged, a reasonable person would conclude that a personal as distinguished from a judicial bias exists. (Cits.)" Mims v. Shapp, 541 F.2d 415 (3rd Cir. 1976). (Emphasis supplied.)

Furthermore, it has been noted that "(s)ection 144 requires that where an affidavit of personal bias or prejudice is filed, the judge must cease to act in the case and proceed to determine the legal sufficiency of the affidavit. He is not, however, allowed to pass upon the truth of its statements. (Cits.)" Bell v. Chandler, 569 F.2d 556 (10th Cir. 1978).

The Fourth Circuit Court of Appeals has held that even absent a legally sufficient affidavit, it is still within the trial judge's discretion to refuse to hear the case on the grounds of personal prejudice or bias. Smith v. State of North Carolina, 528 F.2d 807 (4th Cir. 1975). See 28 USCA § 144 and annotations thereunder.

We hold the federal rule on motions to recuse to be the most acceptable, that is, when a trial judge in a case pending in that court is presented with a motion to recuse accompanied by an affidavit, the judge's duty will be limited to passing upon the legal sufficiency of the affidavit, and if, assuming all the facts alleged in the affidavit to be true, recusal would be warranted, then another judge must be assigned to hear the motion to recuse. We note also the well-settled rule that it is as much the duty of a judge not to grant the motion to recuse when the motion is legally insufficient as it is to recuse when the motion is meritorious; nor does the simple filing of an affidavit automatically disqualify a judge. United States v. Bray, 546 F.2d 851, 857 (10th Cir. 1976) and cits.

In the instant case, assuming all the facts as presented in the state's affidavit to be true, the state's motion to recuse is legally sufficient, and Judge Lott should have secured the services of another judge to hear and determine the motion. Moreover, since hearing a motion to recuse another trial judge is analogous to trying a case in place of another judge who is already disqualified, we remand this case to the Superior Court of Berrien County with the direction that Judge Lott or the District Administrative Judge proceed to assign this motion to recuse to another judge. See Ferry v. State, 245 Ga. 698, 267 S.E.2d 1 (1980). At such hearing, all interested parties shall be entitled to representation by either appointed or retained counsel.

2. The state also argues that the trial court committed error during a pretrial motion when it dismissed, over objection, the defendant's retained counsel and reinstated appointed counsel who had been inactive in the case for three years to resume representation of the defendant.

Pretermitting the question of whether this action by the trial court adverse to the defendant is appealable by the state, we would suggest that this may be done only upon adequate findings in the record fully supporting such action. See United States v. Laura, 607 F.2d 52, 55-56 (3rd Cir. 1979) where it was held that "(t)he reason underlying (cited United States Supreme Court) decisions makes it clear that the sixth amendment generally protects a defendant's decision to select a particular attorney to aid him in his efforts to cope with what would otherwise be an incomprehensible and overpowering governmental authority. While the right to select a particular person as counsel is not an absolute right, the arbitrary dismissal of a defendant's attorney of choice violates a defendant's right to counsel." (Emphasis supplied.)

Because the Laura court did not have adequate findings by the trial court on which to decide whether the dismissal was arbitrary or not in that case, it remanded for those findings to be made. We find this reasoning persuasive.

In the instant case, the dismissal of retained counsel was enumerated as one of the actions taken by Judge Lott which indicated that amount of personal bias and prejudice for which he should have recused himself. In his order on the motion to recuse, Judge Lott stated in regard to the allegation of his dismissal of retained counsel that the "testimony given at the hearing failed to support the (allegation) made in the affidavit." Since we have no transcript of the hearing during which defendant's counsel was dismissed, we are in the same position as the Laura court. Instead of remanding the case or directing that the transcript be sent up, we will abstain from ruling on this enumerated error at this time in order to give the new judge, should...