State v. Haskins, 96-0345

• Decision Date: 24 September 1997
• Docket Number: No. 96-0345,96-0345
• Citation: 573 N.W.2d 39
• Parties: STATE of Iowa, Appellee, v. Douglas W. HASKINS, Appellant.
• Court: Iowa Court of Appeals

Page 39

573 N.W.2d 39

STATE of Iowa, Appellee, v. Douglas W. HASKINS, Appellant.

No. 96-0345.

Court of Appeals of Iowa.

Sept. 24, 1997.

Kent A. Simmons, Davenport, for appellant.

Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, William E. Davis, County Attorney, and Realiff H. Ottesen, Assistant County Attorney, for appellee.

Heard by HABHAB, C.J., and CADY and STREIT, JJ., but decided by SACKETT, P.J., and CADY, HUITINK, STREIT, VOGEL, and MAHAN, JJ.

VOGEL, Judge.

Douglas Haskins appeals from judgment and sentences entered, following a jury trial, for attempted murder, domestic abuse assault, and reckless use of a firearm. At trial, the State alleged Douglas shot his wife during an argument. Douglas admitted he shot his wife, but claimed the shooting was accidental. On appeal, Douglas argues: (1) the trial court should have granted his motion for recusal of the trial judge; (2) the trial court should have excluded evidence he assaulted his wife a year before the shooting; and (3) his trial counsel was ineffective for failing to object to the imposition of consecutive sentences as a violation of double jeopardy.

Douglas and his wife Lydia were married in April 1993. They have been having an ongoing argument over their finances. On August 8, 1995, Douglas returned home early from work because he was not feeling well. When Lydia returned home and asked Douglas why he was not at work, an argument ensued. Douglas told Lydia he filed for divorce, when in fact he had not. He began to leave and Lydia followed him outside, hitting his truck with her hand. Douglas stopped, kicked out a tail light on Lydia's car, and then drove off.

Lydia gathered her purse and car keys and then left in an attempt to locate Douglas. While Lydia was gone, Douglas returned home, parked his truck in the garage, and disconnected the garage door opener to prevent entry by Lydia. He entered the house and locked the front and back doors, including the outer screen doors on both entrances. When Lydia tried to enter the house, Douglas told her to leave and said he was not going to let her in. Lydia cut the screen on the back door, entered the house, and went to the bedroom.

In the bedroom, she discovered Douglas was pulling her clothes out of the closet and putting them on the bed. He told her he owned the house and she had to leave. Lydia resisted. Douglas then reached up and retrieved a loaded revolver from a shelf in the closet. In his videotaped statement, which was played for the jury, he said he did so as a scare tactic to encourage her to leave. Lydia said she would not leave and the argument continued as they moved into the living room. At some point between the bedroom and living room, Douglas removed the gun from its holster.

Once in the living room, Douglas pushed Lydia down on the couch. At one point, he held the gun to her head and said, "Get out of the house, bitch." Lydia testified they continued to struggle and her arm hit the gun. She heard the gun discharge and saw her arm was bleeding. Lydia ran out of the house screaming. Douglas ran after her and carried her back into the house, where she phoned 911. Lydia then went back outside to wait for help.

Sergeant Jeffrey Yates arrived and placed Douglas in custody. Douglas told Yates he was struggling with Lydia when the gun "went off." Lydia was transported to the hospital where physicians diagnosed a defensive wound to her arm where the bullet passed through and a wound to the chest where the bullet entered and collapsed her lung.

The State charged Douglas with attempted murder, in violation of Iowa Code section 707.11; willful injury, Iowa Code section 708.4; and domestic abuse assault, Iowa Code section 708.2A(2)(c). The State later amended the trial information to add a count of reckless use of a firearm, in violation of section 724.30(1). Pursuant to a plea agreement reached by the State and Douglas, he would plead guilty to the charges of domestic abuse assault and reckless use of a firearm. The court rejected the plea agreement stating:

The Court is aware of the fact that the Reckless Use of a Firearm would be probably a class "C" felony, non-forcible, and--the Court has reviewed the minutes of testimony in this matter, and I will state, on the record, that I am not going to accept the plea agreement which has been prepared today, because I don't feel that it's appropriate, given the circumstances contained in the minutes of testimony and the injury which was sustained, and the way in which it was sustained under the minutes of testimony.

Following the denial of the plea agreement, a headline in the Quad City Times read, "Judge Stands Tough On Shooter: She refuses to plea bargain with Bettendorf man who admits to injuring wife." The article reported, "a Scott County judge who is active in efforts to thwart domestic abuse threw out a plea bargain Wednesday for a Bettendorf man who shot his pregnant wife." The article noted the judge sat on a committee that targeted the prevention of domestic abuse and promoted better handling of domestic abuse cases within the court system. The article also noted the judge practiced primarily in family law as an attorney before her appointment to the bench.

When Douglas's trial counsel learned the same judge was assigned to the trial, he moved for a change of judge. He argued the judge's rejection of the plea agreement and the publicity that followed would cause a reasonable person to question the judge's impartiality. The court denied the motion, reasoning rejection of a plea agreement is not significant because it is a routine practice. The judge explained her activities in the area of domestic abuse were not intended to advance the cause of victims, but were designed to achieve meaningful case processing. She emphasized her involvement with a domestic abuse coalition was pursuant to her appointment by the Chief Judge of the Seventh Judicial District, as mandated by order of the Chief Justice of the Iowa Supreme Court. Finally, the court reasoned because the jury would act as fact finder, the court would follow the rules of evidence and criminal procedure to allow the jury to perform its duty to find the facts and apply the law.

The case proceeded to trial. Douglas conceded in his opening statement he shot Lydia, but took the position it was accidental. The State examined Lydia, who explained the circumstances surrounding the shooting. On cross-examination, she attempted to testify Douglas's shooting was an accident, but the court sustained the State's objection to this line of questioning. The State presented evidence the muzzle of the gun was between eight and fourteen inches from Lydia's arm when it fired, and eleven and one-half pounds of pressure on the trigger were required to fire the gun.

Over Douglas's objection, the State presented testimony of Ronald Fox, a friend of Douglas's next door neighbor. Fox testified approximately one year before the shooting he was working in his friend's garage when he heard a noise. He walked toward Douglas's garage to investigate and saw Douglas with his hand holding Lydia's hair and banging her head against a car. Fox testified he saw Douglas do this about three times. Fox then yelled at Douglas, which stopped the altercation.

The jury convicted Douglas on all four counts. Apparently the parties at sentencing agreed, with the consent of the court, that Douglas would not be sentenced on the charge of willful injury because, as they stated, it was a lesser-included offense of attempted murder and was subsumed by the greater offense. ¹ The court sentenced Douglas to an indeterminate term of imprisonment not to exceed twenty-five years on the conviction for attempted murder, an indeterminate term not to exceed two years on the conviction for domestic abuse assault, and an indeterminate term not to exceed ten years on the conviction for reckless discharge of a firearm. The court ordered the sentences to run consecutively.

I. Motion for Recusal of Trial Judge

Douglas contends Judge Alpers should have recused herself from presiding over the trial and sentencing. He argues the rejection of the plea agreement, the allowance of testimony of prior bad acts, and the imposition of consecutive sentences show reasonable persons might question her impartiality.

The burden of showing grounds for recusal is on the party seeking recusal. Campbell v. Quad City Times, 547 N.W.2d 608, 611 (Iowa App.1996). This burden is substantial and we will not overturn the trial judge's decision absent an abuse of discretion. State v. Farni, 325 N.W.2d 107, 110 (Iowa 1982). To show an abuse of discretion, a party must show the court exercised its discretion " 'on grounds or for reasons clearly untenable or to an extent clearly unreasonable.' " In re Estate of Olson, 479 N.W.2d 610, 613 (Iowa App.1991) (quoting State v. Blackwell, 238 N.W.2d 131, 138 (Iowa 1976)).

A judicial officer is disqualified from acting in a proceeding if the officer "has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." Iowa Code § 602.1606(1) (1995). If a judge's impartiality might reasonably be questioned because of such bias or extrajudicial knowledge, the judge should recuse himself or herself. State v. Rhode, 503 N.W.2d 27, 36 (Iowa App.1993) (citing Iowa Code of Judicial Conduct Canon 3(D)(1)(a) (1992)). The test is whether a reasonable person would question the judge's impartiality. McKinley v. Iowa Dist. Court, 542 N.W.2d 822, 827 (Iowa 1996); see also State v. Mann, 512 N.W.2d 528, 532 (Iowa 1994) (phrasing test as whether reasonable persons with knowledge of all facts would conclude the judge's impartiality might reasonably be questioned).

A party must show actual prejudice before a recusal is necessary. McKinley 542 N.W.2d at 827. Only personal bias or prejudice is a disqualifying factor, not judicial...