State v. Kinder, No. 75082

• Court: United States State Supreme Court of Missouri
• Writing for the Court: LIMBAUGH; HOLSTEIN; PRICE; WHITE; WHITE; In some regards, the judge's conduct here is more egregious than that alleged in Smulls, which makes the Court's about-face that much more disturbing. This is no impromptu remark, conducive to misunderstanding
• Citation: 942 S.W.2d 313
• Docket Number: No. 75082
• Decision Date: 17 December 1996
• Parties: STATE of Missouri, Respondent, v. Brian J. KINDER, Appellant.

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942 S.W.2d 313 STATE of Missouri, Respondent,
v.
Brian J. KINDER, Appellant. No. 75082. Supreme Court of Missouri,
En Banc. Dec. 17, 1996.
Rehearing Denied Jan. 21, 1997.

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William J. Swift, Asst. Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Breck K. Burgess, Assistant Attorney General, Jefferson City, for respondent.

Thomas Carter, II, St. Louis, amicus National Legal Aid and Defenders Assn.

LIMBAUGH, Judge.

A jury found Brian Kinder guilty of first degree murder, rape, and armed criminal action. He was sentenced to death and two consecutive life terms. The postconviction court overruled Kinder's Rule 29.15 motion after an evidentiary hearing. On consolidated appeal, we affirm the conviction, sentence, and denial of postconviction relief.

I. FACTS

On Friday, December 21, 1990, at about 6:30 p.m., defendant Brian Kinder went with Don Williams to the home of Williams' estranged wife, Cynthia Williams, to pick up two of the Williams' children for the weekend. The Williams' third child, Donald Culton, remained at his mother's home for the evening. Cynthia Williams came home from work and then went out with relatives on that Friday evening. At about 10:00 or 10:30 that same night, Kinder returned to his own home. Earl Smith, who was at the Kinder home, saw Kinder with a pipe that had black tape on one end. Kinder left his home at about 11:00 or 11:30 p.m.

At about 12:00 or 12:30 a.m., Kinder, with the pipe in hand, was standing outside of Gibb's Esquire Bar, which was 40 yards from Cynthia Williams' home, and while there he got into an argument with Dwayne Wingo. Wingo left the area at about 1:00 a.m., drove past Cynthia Williams' home to a restaurant, and then returned to the bar. During the trip he saw Kinder coming out of Cynthia Williams' home, and on his return, he saw Kinder back in front of the bar.

At some point after midnight and after Cynthia Williams had returned home, Donald Culton, Cynthia's son, was awakened by a noise that sounded like a briefcase or shoes dragging on the floor. He also heard "the sound of someone trying to breathe." The next morning, Donald found his mother's unclothed body lying on her bed in a pool of blood. He then went to his next-door neighbors' house and told them his mother was dead, and the police were called.

Police processed the crime scene that Saturday morning and began an investigation. A pathologist determined that Cynthia Williams died from extensive head injuries caused by multiple blows with a reasonably heavy blunt object, and that her injuries were consistent with being beaten with a pipe. In addition, DNA testing revealed that genetic material in the semen recovered from the body matched Kinder's genetic profile.

Based on this and other incriminating evidence, the jury found Kinder guilty as charged. During penalty phase, the jury found two statutory aggravating circumstances

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and recommended a death sentence, which the trial court then imposed.

II. PRETRIAL

A. MOTION TO DISQUALIFY JUDGE

Six days before the trial was scheduled to begin, the trial judge, who was facing an election that year, issued a press release announcing his decision to switch parties from Democrat to Republican. Kinder, an indigent African-American, then filed a motion to disqualify on the ground that the press release reflected that the trial judge could not fairly serve on a case involving an unemployed African-American. The press release, which was the sole evidence Kinder presented in support of the motion, stated, in relevant part, as follows:

The truth is that I have noticed in recent years that the Democrat party places far too much emphasis on representing minorities such as homosexuals, people who don't want to work, and people with a skin that's any color but white. Their reverse-discriminatory quotas and affirmative action, in the work place as well as in schools and colleges, are repugnant to me.... I believe that a person should be advanced and promoted, in this life, on the basis of initiative, qualifications, and willingness to work, not simply on the color of his or her skin, or sexual preference.

While minorities need to be represented, or [sic] course, I believe the time has come for us to place much more emphasis and concern on the hard-working taxpayers in this country.... That majority group of our citizens seems to have been virtually forgotten by the Democrat party.

After a hearing, the motion was denied, and Kinder now presses the point on appeal.

It is presumed that judges act with honesty and integrity, Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 1464-65, 43 L.Ed.2d 712 (1975), and will not undertake to preside in a trial in which they cannot be impartial, see, e.g., State v. McElroy, 894 S.W.2d 180, 189 (Mo.App.1995); State v. Cooper, 811 S.W.2d 786, 791 (Mo.App.1991). That presumption is overcome, and disqualification of a judge is required, however, if a reasonable person, giving due regard to that presumption, would find an appearance of impropriety and doubt the impartiality of the Court. See State v. Smulls, 935 S.W.2d 9, 16-17 (Mo. banc 1996); State v. Nunley, 923 S.W.2d 911, 918 (Mo. banc 1996). The rule announced in Smulls and Nunley is drawn from our Code of Judicial Conduct, Rule 2, Canons 2 and 3(C), which provide that a judge should avoid the appearance of impropriety and shall perform judicial duties without bias or prejudice, and Rule 2, Canon 3(D), which provides that a judge should recuse in a proceeding in which the judge's impartiality might reasonably be questioned.

In this case, we do not agree that the statements in the press release, when coupled with all other relevant considerations, would cause a reasonable person to question the impartiality of the court. In context, the statements merely express the trial judge's dissatisfaction with affirmative action and government entitlement programs. To the extent that the comments can be read to disparage minorities, there is little point in defending them, even as the political act they were intended to be. But they are a political act, not a judicial one, and, as such, they do not necessarily have any bearing on the judge's in-court treatment of minorities. At the hearing on the motion, the trial judge's response, ignored or disregarded by the defendant, should have set to rest any concern. The court stated:

The Court is not prejudiced against this defendant or any black person in any degree. The Court, as a matter of fact, and the Court's record will show, having served in the Missouri legislature for 16 years, that there is no stronger believer in constitutional rights than this Court. People get confused sometimes when you talk about group rights, civil rights. Or white rights, or black rights, or yellow rights, when they start talking that way, they lost me. As far as this Court is concerned every individual and every citizen of this country is absolutely entitled to their individual constitutional rights, whether they are yellow, red, white, black, or polka dot. It doesn't make any difference to this Court. A person is a person, and an individual is an

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individual. I think people get off the track when they start talking about color. But insofar as this Court is concerned, there is no stronger defender of individual constitutional rights, and this Court and this defendant can rests assured and if he doesn't know it now he will know it after the trial, I am sure.

This defendant can rest assured there is no prejudice on the part of this Court. If there is prejudice in any direction, it is prejudice toward upholding each individual's constitutional rights. As I say, whether the individual be white, black, red, yellow, or whatever, it doesn't make any difference to this Court. Therefore, the motion for recusal is overruled.

By all accounts, the trial judge was true to his word, and Kinder, himself, is unable to point to any statement or ruling or other conduct by the trial judge during the course of the trial that bears any hint of bias. Indeed, Judge Kennedy-Bader, who presided at the Rule 29.15 hearing, found specifically that the trial judge did not exhibit racial bias in the conduct of the underlying trial.

According to the dissent, Smulls requires disqualification of the judge whenever the judge has made any statement, in court or out of court, that might be considered offensive to minorities. In fact, Smulls turned largely on a narrower legal point. The trial judge made specific comments on the record in that case, raising genuine doubts as to his willingness to apply Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and in particular, he expressed an apparent unwillingness to follow the law despite his disagreement with it. Smulls should be read no more broadly than for the proposition that a judicial statement--on the record or off--that raises a genuine doubt as to the judge's willingness to follow the law, provides a basis for recusal or, if the judge refuses to recuse, reversal on appeal. In that instance, the presumption of lack of judicial bias is overcome, and, as the Court stated in Smulls, the judge is at that point no longer afforded the benefit of the doubt. Therefore, this case is distinguished from Smulls because the judge made no statement that could reasonably be perceived as a threat to ignore the law in favor of his own policy preferences.

B. REQUEST FOR CONTINUANCE

Kinder next contends that the trial court erred by denying his request for a continuance of trial so that an independent psychiatric examination could be completed. In November 1991, in response to defense counsel's motion, the trial judge ordered that Kinder undergo a psychiatric examination to be conducted by Dr. Armour, a psychiatrist. Dr. Armour filed a report on January 13, 1992, in which he stated that Kinder was competent to proceed and did not suffer from a mental...