State v. Hollingsworth, 90-0321-CR
| Decision Date | 19 February 1991 |
| Docket Number | No. 90-0321-CR,90-0321-CR |
| Citation | 467 N.W.2d 555,160 Wis.2d 883 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Georgia L. HOLLINGSWORTH, Defendant-Appellant. d |
| Court | Wisconsin Court of Appeals |
Donald J. Hanaway, Atty. Gen., with Gregory M. Posner-Weber, Asst. Atty. Gen., Madison, for plaintiff-respondent.
Before MOSER, P.J., and SULLIVAN and FINE, JJ.
Georgia L. Hollingsworth appeals from a judgment convicting her of five counts of child neglect, pursuant to sec. 947.15(1)(a), Stats. (1985-86). 1 The counts pertained to five of her sons, who ranged in age from ten months to five years. 2 Hollingsworth raises five issues on appeal:
(1) The trial court's alleged erroneous rejection of her substitution request and abuse of discretion in rejecting her offer of proof of its timeliness;
(2) The trial judge's alleged abuse of discretion in failing to recuse himself;
(3) The alleged denial of Hollingsworth's right of due process to present a defense by the trial court's rejection of the opinion of a social worker and exclusion of evidence of Hollingsworth's previous contacts with the Milwaukee County Department of Health and Social Services (DHSS);
(4) The trial court's alleged abuse of discretion by admission of evidence of amounts paid to Hollingsworth for Aid to Families with Dependent Children (AFDC); and,
(5) The alleged insufficiency of evidence to convict.
We affirm the judgment. 3
On August 20, 1987, the state filed its criminal complaint. Pursuant to court (5) Substitution of Trial Judge Subsequently Assigned. If a new judge is assigned to the trial of an action and the defendant has not exercised the right to substitute an assigned judge, a written request for the substitution of the new judge may be filed with the clerk within 15 days of the clerk's giving actual notice or sending notice of the assignment to the defendant or the defendant's attorney. If the notification occurs within 20 days of the date set for trial, the request shall be filed within 48 hours of the clerk's giving actual notice or sending notice of the assignment. If the notification occurs within 48 hours of the trial or if there has been no notification, the defendant may make an oral or written request for substitution prior to the commencement of the proceedings.
rule, it was assigned to circuit judge Charles B. Schudson. The chief judge of the circuit court subsequently reassigned the case to circuit judge Dominic S. Amato to try the action. Hollingsworth filed a substitution request against Judge Amato on May 20, 1988. Section 971.20(5), Stats., provides:
The trial court was not aware of Hollingsworth's substitution request until the day of trial, October 19, 1989. It rejected her request because it was filed, not with the clerk of his court, but with the clerk's central office. 4 Hollingsworth counters with sec. 971.20(8), Stats., requiring the clerk to contact the judge immediately so that he/she can determine the propriety of the request. 5 Hollingsworth contends that any fault by the clerk in failing to carry out a statutory duty should not be visited upon her, and therefore argues that Judge Amato lacked authority to act in her case. 6
Waiver applies to the law of judicial substitution. See, e.g., State ex rel. Eberlein v. Alloway, 256 Wis. 412, 416, 41 N.W.2d 360, 362 (1950). In Pure Milk Products Cooperative v. National Farmers Organization, 64 Wis.2d 241, 250, 219 N.W.2d 564, 569 (1974), the supreme court stated that the right to substitution may be waived by participation in the trial and by participation in preliminary motions where the judge admits evidence used in deciding ultimate issues.
Hollingsworth's participation in the pretrial proceedings after filing her substitution request to the time of trial amply fulfill the criteria for waiver. On August 26, 1988, Judge Amato postponed the trial until October 28 because Hollingsworth's attorney had a scheduling conflict. On October 28, the court issued a bench warrant for Hollingsworth when neither she or her attorney appeared. When Hollingsworth appeared later that day, Judge Amato withdrew the warrant and continued the matter to November 10, 1988, when Hollingsworth again appeared without counsel. When the court continued the matter to November 29, defense counsel appeared, but not Hollingsworth. The court issued a bench warrant. On January 24, 1989, both Hollingsworth and her attorney appeared. Judge Amato withdrew the warrant, rejected a plea bargain, denied Hollingsworth's motion to modify bail, and set the case for trial February 6. On February 3, 1989, upon her plea of not guilty and not guilty by reason of mental illness or defect, Judge
Amato granted Hollingsworth's motion for a continuance to June 13 and appointed a psychiatrist to examine her. 7 [160 Wis.2d 892] On May 16, the court sua sponte cancelled the June 13 date, and continued the matter for jury trial to October 19, 1989. Only on October 19, 1989, the day of trial, did Hollingsworth's counsel direct the court's attention to Hollingsworth's request for substitution. We deem, as did the trial court, that such participation was entirely inconsistent with her initial position that Judge Amato at all times was powerless to act. We conclude that Hollingsworth waived her right to a substitute judge.
Hollingsworth alleges abuse of discretion in the trial judge's denial of her motion for recusal. She asserts that the trial judge became "heated" and induced her motion for recusal when her counsel attempted to make a record on her substitution request. 8 Later, on the admissibility of a certain document, the court admonished Hollingsworth's counsel to limit his objection to the proffered document only. Hollingsworth argues that a combative relationship between her lawyer and the judge and an atmosphere of hostility permeated the trial. The state counters with the argument that the trial court merely carried out its duty to maintain order in the proceedings, and that nowhere did Judge Amato indicate bias against Hollingsworth personally.
A person's right to be tried by an impartial judge stems from his/her fundamental right to a fair trial guaranteed by the due process clause of the fifth amendment of the United States Constitution. See State v. Walberg, 109 Wis.2d 96, 105, 325 N.W.2d 687, 692 (1982). The statements and actions of Judge Amato are undisputed matters of record. Whether the judge's partiality, if any, violated Hollingsworth's due process rights presents a legal issue which we review de novo. Id. at 104-05, 325 N.W.2d at 692.
Hollingsworth argues only that her constitutional rights were violated. She does not argue that the trial judge violated a statutory duty of recusal under sec. 757.19(2), Stats., nor did the state discuss that question in its appellate brief. Therefore, we limit our inquiry to whether Judge Amato demonstrated partiality against Hollingsworth, and if so, whether the partiality violated her right to due process. See State v. Carviou, 154 Wis.2d 641, 646 n. 6, 454 N.W.2d 562, 564 n. 6 (Ct.App.1990).
A litigant is denied due process only if the judge, in fact, treats him or her unfairly. Margoles v. Johns, 660 F.2d 291, 296 (7th Cir.1981). A litigant is not deprived of fundamental fairness guaranteed by the constitution either by the appearance of a judge's partiality or by circumstances which might lead one to speculate as to his or her partiality. Id.
Hollingsworth complains that several aspects of Judge Amato's behavior during the trial gave the appearance of partiality. True, certain of Judge Amato's rulings on evidence assumed the proportions of pedantic lectures which dressed down Hollingsworth's counsel. The judge on one occasion sustained an unmade objection for the state and also tended to monopolize verbal interchanges at numerous side bar conferences. Hollingsworth's counsel did not provoke the court, and, for the most part, quietly acquiesced in its adverse rulings. However, a strained relationship between the court and counsel is insufficient to require recusal. The judge's bias against counsel must be severe in order to translate into partiality against the litigant. Walberg, 109 Wis.2d at 107, 325 N.W.2d at 693. We are unable to conclude that the judge's statements establish fatal bias toward Hollingsworth. Judge Amato was upset when Hollingsworth's counsel called his attention to the substitution request on the day set for jury trial. Judge Amato's statements related to rulings on evidence and his effort to move the trial along expeditiously. This, in our opinion, is not unfair treatment toward Hollingsworth of constitutional proportions.
Hollingsworth asserts that her rights to due process and to present a defense, guaranteed by the fifth, sixth, and fourteenth amendments of the United States Constitution were abridged when: (1) the trial court sustained an objection and excluded the opinion of a social worker concerning Hollingsworth's parenting skills and intelligence; (2) it refused to admit evidence of her prior contacts with the DHSS; and, (3) it admitted, over her objection, evidence that Hollingsworth received AFDC payments and food stamps.
In Wisconsin, an evidentiary objection is addressed to the trial court's discretion. State v. DeSantis, 151 Wis.2d 504, 507, 445 N.W.2d 331, 332 (Ct.App.1989). Discretion entails an understanding of the relevant facts of record and applying pertinent law to reach a reasoned result. State v. Walker, 154 Wis.2d 158, 191, 453 N.W.2d 127, 141 (1990).
Under Rule 907.02, Stats., a person may give an opinion within his or her area of expertise as long as the witness is "qualified as an expert by knowledge, skill, experience, training, or...
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