State v. Plunkett

• Decision Date: 10 March 1995
• Docket Number: No. 70537,70537
• Parties: STATE of Kansas, Appellee, v. Bennie L. PLUNKETT, Jr., Appellant.
• Court: Kansas Supreme Court

Page 370

891 P.2d 370

257 Kan. 135

STATE of Kansas, Appellee, v. Bennie L. PLUNKETT, Jr., Appellant.

No. 70537.

Supreme Court of Kansas.

March 10, 1995.

Syllabus by the Court

1. The standard of judicial review is unlimited in a case alleging judicial misconduct during trial. The standard of judicial review refers to the legal scale used in weighing the sufficiency of the facts and circumstances giving rise to the alleged judicial misconduct. Where a construction can properly and reasonably be given a remark which will render it unobjectionable, the remark will not be regarded as prejudicial. In a case in which judicial misconduct during trial is alleged, an appellate court is required to decide whether the defendant's substantial rights to a fair trial have been prejudiced.

2. The scope of judicial review in a case alleging judicial misconduct during trial refers to the evidence the remaining court will examine in reviewing the allegations. An appellate court is to examine particular facts and circumstances surrounding allegations of judicial misconduct during trial.

3. The record is reviewed and it is held: (1) certain judicial remarks discussed in the opinion are objectionable and (2) the defendant's substantive rights to a fair trial have been prejudiced.

Stephen C. Moss, Sp. Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief for appellant.

David Lowden, Asst. Dist. Atty., argued the cause, and Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief for appellee.

SIX, Justice:

This case concerns judicial misconduct during trial. Defendant Bennie L. Plunkett, Jr., was found guilty of rape, K.S.A. 21-3502, and aggravated criminal sodomy, K.S.A. 21-3506(c). His jury trial involved two consolidated cases, similar in nature, but each arising from a separate incident and separate victim. Plunkett contends he was denied a fair trial because of judicial misconduct. He also asserts various trial errors.

Our jurisdiction is under K.S.A.1994 Supp. 22-3601(b)(1) (a maximum sentence of life imprisonment was imposed).

Our inquiry focuses on whether the trial judge committed judicial misconduct by making prejudicial comments about Plunkett, demeaning defense counsel in front of the jury, or otherwise showing partiality to the State's case.

Our standard of review is unlimited. The standard of judicial review refers to the legal scale used in weighing the sufficiency of the facts and circumstances giving rise to the alleged judicial misconduct. See Dillon Stores v. Lovelady, 253 Kan. 274, 275, 855 P.2d 487 (1993). We are required to decide whether Plunkett's substantial rights to a Plunkett's cases were tried to a jury. Plunkett's claim of judicial misconduct rests on many statements, interjections, and rulings by Judge Robert D. Watson during the five-day trial. We find the misconduct sufficient to require reversal.

fair trial have been prejudiced. The scope of judicial review refers to the evidence the reviewing court will examine in reviewing allegations of judicial misconduct during trial. Under the appropriate scope of review, we measure the allegations of judicial misconduct during trial by examining the particular facts and circumstances surrounding the alleged misconduct. "Where a construction can properly and reasonably be given a remark which will render it unobjectionable, the remark will not be regarded as prejudicial." State v. Thomas, 252 Kan. 564, 570, 847 P.2d 1219 (1993). We are not able to effect such a construction in the instant case.

FACTS

The evidence was controverted. The State relied heavily on the testimony of the alleged victims, S.B., age 17, and C.D., age 20. Both episodes took place in Plunkett's home, about six weeks apart. Both victims described similar 30- to 60-minute ordeals in which they were coerced by force and threats into oral, vaginal, and, in S.B.'s case, anal sex. Plunkett, on the other hand, described both incidents as consensual. The victims admitted to being close acquaintances of Plunkett before the alleged crimes. S.B. had kissed him at least once in the preceding few weeks, and C.D. had talked with Plunkett about having sex. The facts are disputed as to whether the relationships were consensual or criminal.

The jury's impression of the credibility of S.B., C.D., and Plunkett had to be crucial to its verdict. A detailed recitation of the facts is not necessary to develop an understanding of the issues.

DISCUSSION

Plunkett contends that the cumulative effect of several instances of judicial misconduct during trial severely prejudiced his right to a fair trial. We agree. He cites State v. Hamilton, 240 Kan. 539, 731 P.2d 863 (1987), in which we reversed a conviction because of judicial misconduct by Judge Watson. See also State v. Lewis, 252 Kan. 535, 539, 847 P.2d 690 (1993). Complaints concerning Judge Watson during trial appear in several published opinions cited in State v. Gadelkarim, 256 Kan. 671, 677, 887 P.2d 88 (1994).

We have identified principles to guide the demeanor of trial judges:

"The trial judge is not merely a moderator, but is the governor of the trial. The judge must strive to have the trial conducted in an atmosphere of impartiality and should refrain from remarks or conduct that may injure a litigant."

"The trial judge should be the exemplar of dignity and impartiality. He should exercise restraint over his conduct and utterances. He should suppress his personal predilections, and control his temper and emotions. He should not permit any person in the courtroom to embroil him in conflict, and he should otherwise avoid conduct on his part which tends to demean the proceedings or to undermine his authority in the courtroom. When it becomes necessary during the trial for him to comment upon the conduct of witnesses, spectators, counsel, or others, or upon the testimony, he should do so in a firm, dignified, and restrained manner, avoiding repartee, limiting his comments and rulings to what is reasonably required for the orderly progress of the trial, and refraining from unnecessary disparagement of persons or issues." Hamilton, 240 Kan. 539, Syl. pp 3, 4, 731 P.2d 863.

Jury Orientation

During jury orientation, Judge Watson described the courtroom to potential jurors as a "stage" and the lawyers as "actors." He then made the following comment:

"At the first table which is usually--I don't know why, but it seems like prosecution and defense stakes out things in the courtroom. And I think you think you get habit bound, so do these lawyers. It just looks like all the time the prosecution will sit at the table closest to the judge and the defense will sit--defense will sit furthest away. Sometime I wonder about that, but I say, oh, but, Watson, don't be thinking evil. You know, defense trusts you, too, you know, but anyhow, that's what usually happens." (Emphasis added.)

He referred to District Attorney Nola Foulston as "your elected representative" and, "to me, as far as Sedgwick County goes, the most powerful individual there is in the judicial system." (Emphasis added.) He then introduced the prosecutor, an assistant district attorney, stating, "I've had the luck to have seen her come up through the ranks and she couldn't be any better trained than if I trained her." Judge Watson then described the summer intern procedure in the Sedgwick County prosecutor's office, saying that the district attorney hires the "brighter students" to give them practical experience and said that "Miss Barnett, if I believe correctly, was one of those."

In introducing defense counsel, Judge Watson made no favorable comments on their abilities. He first introduced Nika Cummings, stating, "I'm sure glad she got married because I couldn't pronounce her last name before she got married. She must have married that guy with that last name to relieve me so I could pronounce her last name." He then introduced Kevin Loeffler, but apparently mispronounced his last name, whereon Judge Watson retorted, "I've known him a long time. I just didn't know how to pronounce his last name. Now, there's some things I can tell you about him, but that's just between me and him."

Plunkett contends that Judge Watson's personal and favorable remarks about the prosecutor "could only function" to persuade the jury that the State's allegations against him must be true. In contrast, the veiled comment about defense attorney Loeffler suggested to the jury, he contends, that the judge must have known something "improper or scandalous." In addition, Plunkett argues that Judge Watson further disparaged defense counsel with his remark that the defense always sits away from him at trial, followed by "[s]ometimes I wonder about that." In sum, Plunkett asserts that the judge's comments displayed to the jury a personal prejudice favoring the State over the defense and that this "undoubtedly prejudiced" his chances of a fair trial. The State replies that Judge Watson's comments "were not to be taken seriously," that his "joking nature is apparent," and that "[t]here is no possibility these comments affected the outcome of the trial."

This first alleged instance of misconduct is serious. In Hamilton, we quoted from a prior opinion on the unique relationship between the judge and the jury:

" 'The trial judge occupies a high position. He presides over the trial. The jury has great respect for him. They can be easily influenced by the slightest suggestion coming from the court, whether it be a nod of the head, a smile, a frown, or a spoken word. It is therefore imperative that the trial judge shall conduct himself with the utmost caution in order that the unusual power he possesses shall not be abused.' " 240 Kan. at 545, 731 P.2d 863 (quoting State v. Wheat, 131 Kan. 562, 569, 292 P. 793 [1930].

The potential combined effect of Judge Watson's stated suspicion of defense counsel's motive...