State v. Neil

• Citation: 102 Ariz. 110,425 P.2d 842
• Decision Date: 29 March 1967
• Docket Number: No. 8897--PR,8897--PR
• Parties: The STATE of Arizona, Appellee, v. Albert Dale NEIL, Appellant.
• Court: Supreme Court of Arizona

Page 842

425 P.2d 842

102 Ariz. 110

The STATE of Arizona, Appellee, v. Albert Dale NEIL, Appellant.

No. 8897--PR.

Supreme Court of Arizona, In Banc.

March 29, 1967.

Darrell F. Smith, Atty. Gen., Philip W. Marquardt, Asst. Atty. Gen., for appellee.

Leon Thikoll, Tucson, for appellant.

McFARLAND, Justice:

Albert Dale Neil, herein referred to as defendant, appeals from a judgment and conviction of guilty of two counts of forgery, rendered by the Pima County Superior Court on February 8, 1966. The case is in this court on a petition for review of the decision of the Arizona Court of Appeals, Division Two, reported in 4 Ariz.App. 258, 419 P.2d 388.

A judgment and conviction on the same charge had been previously rendered in that court on May 25, 1965, and on appeal to the Arizona Court of Appeals the judgment was reversed, and the cause remanded to the superior court for a new trial. State v. Neil, 2 Ariz.App. 230, 407 P.2d 419. On the morning of the new trial counsel for defendant was informed that the case had been re-assigned to Judge Garrett, who had presided at the former trial. Before the jury had been called, or the trial had commenced, an oral affidavit of bias and prejudice was presented to Judge Garrett. The ground on which the affidavit was based was that the reversal of the previous trial would tend to result in bias and prejudice on the part of the presiding judge.

The Arizona Rules of Criminal Procedure, 17 A.R.S., provide for a change of judge as follows:

'On a prosecution by indictment or information the state or a defendant may apply for a change of judge on the ground that a fair and impartial trial cannot be had by reason of the interest or prejudice of the trial judge.' Rule 196, Ariz. Rules Cr.Proc., 17 A.R.S.

'Neither the state nor any defendant in the same action may make more than one application for change of judge.' Rule 198 Ariz. Rules Cr.Proc., 17 A.R.S.

'When an application is made to a judge for a change of judge, he shall proceed no further in the action except to call another judge to preside therein.' Rule 200, Ariz. Rules Cr.Proc., 17 A.R.S.

This court has held that the rules of law pertaining to change of judge are essentially the same in civil cases as in criminal cases. Marsin v. Udall, 78 Ariz. 309, 279 P.2d 721. The right to a fair trial is a foundation stone upon which our present judicial system rests. Necessarily included in this right is the right to have the trial presided over by a judge who is completely impartial and free of bias or prejudice. In order to insure this right, this court early announced, in the case of Stephens v. Stephens, 17 Ariz. 306, 152 P. 164, that a litigant has a peremptory right of disqualification. It was there said:

"To disqualify a judge * * * the litigant is not required to state any facts upon which his claim of the judge's bias or prejudice is founded, and in this aspect of the case the proceeding is alalogous to that invoked in the exercise of a peremptory challenge to a juror. It is not the bias nor prejudice which works his disqualification, but the mere filing of the affidavit in time, even though the judge against whom it is aimed be entirely free from either change." 17 Ariz. at 309, 152 P. at 165 (quoting from Washoe Copper Company v. Hickey, 46 Mont. 363, 128 P. 584)

In the Stephens case, supra, the trial judge had made several orders--one of which required the affiant to pay certain costs. It was suggested that it was this order which prompted the filing of the affidavit. We said:

'* * * The law does not require the affiant to give or assign any reason or reasons for his belief that he cannot have a fair and impartial trial because of the judge's bias or prejudice or interest. It requires him to make and file the affidavit and prescribes its contents, but it does not make it a conditions of the affidavit that it shall be true, nor will it weigh or estimate the motive for making it. So then it matters not what may have prompted the affidavit, if it complies with the law and was made and filed in time.' 17 Ariz. at 311, 152 P. at 166

The timeliness of the filing of the affidavit has been considered several times by this court. In the case of Allan v. Allan, 21 Ariz. 70, 185 P. 539, it was held the affidavit was not timely where the trial judge had taken depositions in a prior hearing to be used at the trial. However, there were other considerations in the Allan case, as the affiant had not properly presented nor urged his motion. It was there stated that the affidavit would act to disqualify the judge if filed before the trial commences. In Sam v. State, 33 Ariz. 383, 265 P. 609, we said:

'* * *--we have held that such affidavits When filed before trial are in effect a peremptory challenge to the trial judge, and that he has no discretion in passing thereon. Stephens v. Stephens, 17 Ariz. 306, 152 P. 164. The affidavits were not offered for filing until after the trial of the case had been commenced, nor in fact was defendant's affidavit even signed at that time. The trial commences, for this purpose at least, when the jurors are first called into the box. Caples v. State, 3 Okl.Cr. 72, 26 L.R.A. (N.S.) 1033, 104 P. 493.' 33 Ariz. at 402, 265 P. at 616

In Arizona Conference Corp. of Seventh Day Adventists v. Barry, 72 Ariz. 74, 231 P.2d 426, the rule in regard to waiver of the peremptory right was given a more strict interpretation, and the New Mexico rule that the affidavit was timely if filed before the judge has ruled on any contested matter whatsoever was adopted. This statement in the Barry case was later expressly disapproved in Marsin v. Udall, 78 Ariz. 309, 279 P.2d 721. In the Marsin case, supra, this rule was modified to the extent that evidence or ruling of the court on collateral matters not bearing on the final decision did not constitute a waiver of the right to challenge the fairness of the judge.

The question in the instant case is whether an affidavit of bias and prejudice filed after a new trial has been granted is timely. In Hendrickson v. Superior Court, 85 Ariz. 10, 330 P.2d 507, 73 A.L.R.2d 1235, we specifically recognized two types of affidavits of bias and prejudice. The first is an affidavit of bias and prejudice filed under such conditions that its timeliness cannot be questioned. Such an affidavit imports verity, cannot be challenged, and operates to disqualify the trial court; the second, an affidavit of bias and prejudice made when disqualifying facts are unknown to affiant until after the time has expired for the affidavit to be normally presented. Under the second the truth of the affidavit must be established. In the Hendrickson case, supra, there was a mistrial, and the affidavit was filed after the mistrial and before the commencement of the retrial. In disposing of this question, we said:

'The question for solution is whether under the foregoing circumstances the respondent judge could decide as a matter of law that the affidavit of bias was of no force and effect because not timely filed. The rule is that an affidavit of bias and prejudice must be seasonably filed or it is waived. It is likewise the rule that when the disqualifying facts are unknown to affiant until after the expiration of the time that the affidavit should normally be presented, the application for change of judge is timely if made upon the discovery of such facts. This latter rule is well stated in 48 C.J.S. Judges § 94, page 1086, as follows:

"Where the party entitled to object is not informed of the disqualifying facts until after the expiration of the time in which objection should be made, his objection, made on discovery of the facts, will be regarded as seasonably made.'

'The troublesome question, unanswered by any pronouncement of this court, is how such an application should be processed. Unquestionably, interested parties were entitled to a hearing upon the motion for a substitute judge. This was had and respondent decided as a matter of law without any inquiry as to the nature of the claimed after-discovered facts or the subsequent discovery thereof that the application was untimely and of no force and effect. We think this was error. A proper affidavit of bias filed under such conditions that its timeliness cannot be questioned imports verity, cannot be challenged and operates to disqualify. Stephens v. Stephens, 17 Ariz. 306, 152 P. 164. Of necessity an affidavit such as is herein concerned cannot come under this rule for the reason that its timeliness is dependent upon a subsequent discovery of facts that warrant an honest belief that the judge is biased. Such an affidavit may be challenged and if this be done, the legal sufficiency and timeliness of the affidavit must be determined by the judge presiding or one to whom the matter may be assigned for that purpose. Such determination cannot be made without knowing the claimed after-discovered facts and whether they were subsequently discovered. Consequently, in the event the validity of the affidavit is questioned by the judge or an opposing party, a hearing should be had and inquiry made and affiant required to disclose the facts relied upon and subsequent discovery thereof. If the facts are not such as would warrant the affiant as a reasonable person in honestly believing that the questioned judge is biased or if it appears they were not subsequently discovered, the application should be denied as a matter of law. If, on the other hand, the claimed after-discovered facts, if true, would warrant affiant as a reasonable person in honestly believing she would not obtain a fair and impartial trial and the application for substitute judge was made upon discovery of such facts, the same should be granted.' 85 Ariz. at 12, 13, 330 P.2d at 509, 73 A.L.R. at 1237, 1238.

In the instant case the affidavit of bias and prejudice did not comply with the statutes in that it was oral, and was not filed three days before the trial as provided under the...