State v. Garner, 16604

• Decision Date: 09 November 1990
• Docket Number: No. 16604,16604
• Citation: 799 S.W.2d 950
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Leon GARNER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 950

799 S.W.2d 950

STATE of Missouri, Plaintiff-Respondent, v. Leon GARNER, Defendant-Appellant.

No. 16604.

Missouri Court of Appeals,

Southern District,

Division Two.

Nov. 9, 1990.

Motion for Rehearing or Transfer

Denied Dec. 3, 1990.

Application to Transfer Denied

Jan. 9, 1991.

Robert D. Rachlin, Robert A. Miller, Jr., Downs, Rachlin & Martin, Burlington, Vt., Lew Kollias, Columbia, for defendant-appellant.

William L. Webster, Atty. Gen., John P. Pollard, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

SHRUM, Judge.

A jury found defendant Leon Garner guilty of the class A felony of murder in the first degree, § 565.020, RSMo 1986, and assessed punishment at imprisonment for life without eligibility for probation or parole. The trial court entered judgment on the verdict. An opinion dealing with the appeal of that judgment is found in State v. Garner, 760 S.W.2d 893 (Mo.App.1988). This court vacated the judgment--not the verdict, only the judgment--and remanded the case with direction that the trial court make a fact finding on the issue of whether defendant requested a lawyer prior to confessing. It held that such question of fact would have to be resolved before defendant's first point could be ruled. Garner at 905. Further, this court determined that the fact issues necessary for adjudication of defendant's first point would have to be resolved by a different judge, which meant that the new judge had to hear all evidence on a suppression motion that defendant and the State desired to present on these issues. Garner at 906.

If the new judge, upon making the factual findings necessary to resolve the issue of admissibility, rules that appellant's written and videotape confessions are admissible, the new judge shall sentence appellant in accordance with the verdict and enter judgment accordingly. Appellant can then appeal anew, but such appeal shall be confined to the issues raised by appellant's first point ¹ in the instant appeal, as we have already rejected appellant's second point and all other allegations of error in appellant's motion for new trial have been abandoned.

State v. Garner, supra, at 906-907 (emphasis added).

Upon remand, the Missouri Supreme Court assigned Judge Fred W. Copeland to the case by order dated November 23, 1988. The docket sheet reflects that on February 8, 1989, Judge Copeland set the suppression motion for trial on May 5, 1989. On February 14, 1989, the cause was reset for June 1 and 2, 1989. The evidentiary hearing on defendant's suppression motion was held June 1, 1989. On August 18, 1989, Judge Copeland entered a written judgment entry (five pages in length) which included detailed findings of fact and conclusions of law. Judge Copeland's order read, in part, as follows:

The Court, based on the evidence presented at the hearing on June 1, 1989, finds that confessions, oral, written and videotaped, given by the Defendant on the evening of February 23, 1986, and the early morning hours of February 24, 1986, were voluntarily made by the Defendant and that said confessions were not made as a result of force, threats or coercion. The Court further finds that the Defendant did not request an attorney at any time prior to the making of these confessions.

Therefore, the Court, for the foregoing reasons, finds that the oral, written and videotaped confessions of the Defendant ... are found to be admissible as evidence against the Defendant Leon Garner.

On September 26, 1989, Judge Copeland entered judgment per the original verdict. This appeal followed. This court affirms.

In Point I defendant claims trial court error by Judge Copeland when he refused, on the date of the suppression hearing, to permit defendant's counsel to inquire of him about his knowledge of the case. The factual background of this point is as follows. At a pre-hearing conference on June 1, 1989, defendant's counsel said to Judge Copeland:

MR. RACHLIN: ... I would like to make some inquiries of this Court bearing specifically on the Court's familiarity with this case, relationship with the parties in the case, with a view to establishing whether or not this Court can or ought to sit in matters that are gonna depend upon judgments of credibility of people.

... This Court's gonna be called upon to make some credibility judgments, and for that reason I'd like permission to make some inquiries of the Court along those lines.

THE COURT: Denied, Mr. Geiger.

....

THE COURT: This Court is not going to be examined by counsel.... I was assigned to this case in November of, November the 30th of last year, which is seven months,if not more. You had ample opportunity to disqualify this Court.... I'm not familiar with this case at all other than the fact that I was an Associate Circuit Judge back a year or so ago whenever this case was originally tried. I have no familiarity with this case. But, this Court is not going to be examined as to whether this Court has any preconceived thoughts; I can assure you that I do not. I know no more of this case than I know of any other case that comes before me.... I have no more information concerning this case than any other case that would appear before me. And I promise you that I am certain that I can decide this case based upon the evidence that is presented to the Court here this day.

Is there anything else you would like to present to the Court before we proceed with the hearing?

....

MR. RACHLIN: ... I understand then that the Court is ruling that by not having inquired into these matters before today, that we have waived any right that we would otherwise have to inquire into the impartiality of this Court?

THE COURT: I, I'm not going to be examined before we proceed here today by counsel, is what I am telling you. I will tell you at, at this time, and I see no problem with it, I believe that when this case was tried ... I was Associate Circuit Judge of this county. I believe I walked upstairs to talk to the Bailiff of the Court, who was a deputy, for a brief period of time.

I visited Mr. Geiger. I was in the New Madrid County Library an afternoon that the trial, I believe, was being held. Mr. Geiger ² approached me, initiated conversation about his involvement--I believe he told me he was from New England and that he was down here involved in the case that was being tried; that is the only contact I have had with this case. I see nothing that would, based upon that, or the fact that I served as Associate Circuit Judge while this case was being tried in this county, that would disqualify me or render me as an impartial or a not impartial judge in this matter.

....

MR. RACHLIN: ... I take it that the Court is ruling then that I may not inquire about the particulars of the conversations that Your Honor has had, is that correct, I may not inquire about that?

....

THE COURT: ... Let's approach it this way. If you would like to make a statement as to, as to matters that you think might lead to show that the Court might be prejudiced against your client in any way, rather than examine me, if you would like to make a statement concerning why I should not hear this case, I would be happy to, to allow you to do that.

MR. RACHLIN: All right, Your Honor.

THE COURT: And I may comment on them after you make that statement.

MR. RACHLIN: ... I must respectfully contend ... that it is the right of counsel, where credibility of witnesses is in issue, ... to make reasonable, judicious and courteous inquiry ... to establish whether or not the Court ought to sit or ought to recuse itself.... I believe that we are entitled to make reasonable and respectful and courteous inquiry of the Judge in order to determine whether or not the Judge has any knowledge of the case, and has any opinions about the case, has any relationships with the Prosecutor with the former judge in the case, police officers, I believe we're entitled to make that inquiry. And while I appreciate the Court's statement, and I don't in any way wish to impugn the integrity of the Court and sincerity of the Court, I don't think that that automatically disqualifies us from making reasonable inquiry on our own, I think that is the responsibility of counsel.

THE COURT: Overruled.

MR. RACHLIN: ... I would like to move at this time ... the Court to recuse himself ... on the grounds that there is reasonable grounds to believe that the Court may have knowledge or opinions about the case that counsel has been denied the opportunity to make inquiry as to those matters and that we are therefore put in a position where we must either proceed with a judge who will not be examined on these issues or pursue what other remedies we may have.... So, we would move the Court to recuse himself by reason of the Court's unwillingness to be--to, to receive reasonable inquiry of counsel.

THE COURT: Overruled.

Rule 32.10 requires a judge who "has an interest in ... the criminal proceedings" to disqualify himself even if no such application has been made. State v. Martin, 671 S.W.2d 20, 22 (Mo.App.1984). Rule 32.09(c) provides that nothing in "Rules 32.01 through 32.09, inclusive, shall prohibit a judge from ordering a change of ... judge when fundamental fairness so requires." Accordingly, the fact that the request by defendant at the time of the hearing was not in writing and was not timely did not preclude defendant from making the request that Judge Copeland recuse himself.

Judge Copeland, in denying defendant the right to question him and in refusing to recuse, noted the failure of defendant to file a timely change of judge motion (apparently referred to Rule 32.07). ³ However, he did not rest his decision solely on Rule 32.07. He specifically asked defense counsel "to make a statement concerning why I [Judge Copeland] should not hear this case...." The response by defendant's counsel did not recite any specific causes which mandated disqualification under Rule 32.10 nor under Rule 2, Canon 3(C) ⁴, and...