State v. Sawyer

• Decision Date: 26 July 2013
• Docket Number: No. 101,624.,101,624.
• Citation: 297 Kan. 902,305 P.3d 608
• Parties: STATE of Kansas, Appellee, v. Myoun SAWYER, Appellant.
• Court: Kansas Supreme Court

297 Kan. 902

305 P.3d 608

STATE of Kansas, Appellee,

v.Myoun SAWYER, Appellant.

No. 101,624.

Supreme Court of Kansas.

July 26, 2013.

Syllabus by the Court

1. Under K.S.A. 20–311f, a party seeking a change of judge may do so as late as 7 days after pretrial or after receiving written notice of the judge before whom the case is to be heard, whichever is later.

2. There are at least three possible substantive bases on which a Kansas litigant may argue that a judge's recusal is required: the statutory factors listed in K.S.A. 20–311d(c)(1)–(5); the Kansas Code of Judicial Conduct, Canon 2, Rule 2.11; and the Due Process Clause of the federal Constitution.

3. An appellate court judges the adequacy of due process under a de novo standard.

4. In certain instances in which experience teaches that the probability of actual bias is too high to be constitutionally tolerable, the Due Process Clause requires judicial recusal. A showing of actual bias or prejudice in such circumstances is not required.

5. On the facts of this case, the district judge had a duty to recuse, and his refusal to do so made the probability of actual bias too high to be constitutionally tolerable. The defendant is therefore entitled to reversal of his conviction and remand to the district court for further proceedings.

6. A permissive inference instruction does not lessen or destroy the prosecution's burden to prove the element of intent beyond a reasonable doubt.

7. On the evidence presented in the trial underlying this appeal, the permissive inference instruction on intent was factually appropriate.Reid T. Nelson, of Capital and Conflicts Appellate Defender Office, argued the cause and was on the brief for appellant.

Jennifer S. Tatum, assistant district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Steve Six, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by BEIER, J.:

On petition for review, Myoun L. Sawyer argues that his conviction for criminal threat must be reversed and his case remanded, because (1) the district court judge was required to recuse and failed to do so; (2) his jury was inappropriately provided a permissive inference instruction on intent; and (3) the district judge abused his discretion by refusing to read certain testimony back to the jury upon its request.

We hold that Sawyer is entitled to reversal and remand under our constitutional analysis of his first issue. We therefore reach only his second additional issue and not his third; the second issue is likely to arise on retrial while the third is not.

Facts and Procedural Background

As a civilian employee of the Wyandotte County Jail, Penny Saunders was responsible for delivering pizza to the F–Pod, a housing unit with a common area in which prisoners could socialize unrestrained. After a deputy opened a remotely controlled door to admit Saunders to the unit, she approached the entry and noticed several prisoners gathered at a yellow line about 5 feet inside. The prisoners are prohibited from crossing the line. Sawyer was one of the prisoners near the line, and he yelled at Saunders, “Bitch, I'm going to kill you. Bitch, I'll beat your ass. Bitch, I'll kill you,” while he and the other gathered prisoners were jumping and pointing at her.

A deputy nearby saw Sawyer yelling at Saunders. The deputy tried to calm Sawyer, but Sawyer refused to go back to his cell. The deputy decided to summon other officers. By the time the deputy had done so, Saunders had retreated down a hallway and was standing in a corner. As deputies were taking Sawyer back to his cell, they passed the corner in which Saunders was standing, and Sawyer continued to yell at her.

These events led to Sawyer's jury trial for criminal threat before District Judge John J. McNally, now retired. Judge McNally has presided over three cases involving Sawyer. One led to a bench trial on assault and battery, from which the judge recused. One led to a jury trial on lewd and lascivious behavior; the judge did not recuse in that case. The last of the three cases was the prosecution underlying this appeal.

Sawyer filed a motion seeking Judge McNally's recusal on February 28, 2008. As provided for in the governing statute, K.S.A. 20–311d, the judge held a hearing on the motion at which Sawyer's counsel argued:

“Judge, my client as you know, is—was also a defendant in another proceeding and we filed a change of judge. And in that proceeding you actually granted recusal of you as trial judge in that case.

“For all of the same facts and circumstances surrounding that my client is requesting a change of judge. We believe that by you sitting in this matter that he would be unfairly prejudiced with regards to your guys' past communication between each other. Apparently you have had—even though I wasn't present during some of that, you've had some interactions between each other that would seem to my client to believe that you would—he would be unfairly prejudiced.”

Judge McNally responded:

“Well, of course, the difference—the main difference between this case and that case is that in that one the defendant had waived a jury trial and it was a situation where I would be sitting as the finder of fact. And given some of the past dealings between myself and Mr. Sawyer, I thought that would probably be a problem. I don't believe that that's the case here because a jury is going to determine his guilt or innocence.”

After Judge McNally declined to recuse, Sawyer filed an additional motion and affidavit.See K.S.A. 20–311d(a)-(b) (if judge declines to recuse, party may file affidavit; chief judge determines whether affidavit legally sufficient to require recusal); see also State v. Robinson, 293 Kan. 1002, 1032, 270 P.3d 1183 (2012) (when appellate court reviews legal sufficiency of recusal affidavit, factual allegations assumed to be true).

Sawyer's additional motion listed Judge McNally's recusal from the assault and battery case as the reason for the requested recusal request. Sawyer's affidavit relied on other grounds: (a) Judge McNally told Sawyer in an earlier case that no pro se pleadings would be accepted; (b) in that same case, Judge McNally ordered Sawyer gagged during his transport from the Sheriff's Office; (c) Judge McNally was the defendant in a civil case pending before the Court of Appeals; and (d) Judge McNally had made rulings in past cases that demonstrated the judge's bias in favor of the prosecution.

The chief judge of the district denied the motion, and the pretrial conference in this case was held on July 18, 2008.

Sawyer was convicted of criminal threat and appealed. A panel of our Court of Appeals rejected each of his three assertions of reversible error. See State v. Sawyer, 45 Kan.App.2d 156, 244 P.3d 705 (2011). On the way, it agreed with Judge McNally's reliance on the difference between a trial judge's role in a bench trial and a trial judge's role in a jury trial. 45 Kan.App.2d at 162–63, 244 P.3d 705.

Discussion

Recusal of Judge McNally

Before discussing the substance of this issue, we must address the State's initial procedural argument that Sawyer's motion urging Judge McNally's recusal was untimely. Under K.S.A. 20–311f, a litigant seeking a change of judge may do so as late as “[7] days after pretrial, or after receiving written notice of the judge before whom the case is to be heard, whichever is later.” Sawyer's motion evidently predated the pretrial in this case and was therefore timely.

In Kansas, there are at least three possible substantive bases on which a litigant may argue that a judge's recusal is required. First, there is a list of statutory factors that may be alleged in an affidavit of the type filed by Sawyer in this case. See K.S.A. 20–311d(c)(1)–(5). The factors are:

“(1) The judge has been engaged as counsel in the action prior to the appointment or election as judge.

“(2) The judge is otherwise interested in the action.

“(3) The judge is related to either party to the action.

“(4) The judge is a material witness in the action.

“(5) The party or the party's attorney filing the affidavit has cause to believe and does believe that on account of the personal bias, prejudice or interest of the judge such party cannot obtain a fair and impartial trial or fair and impartial enforcement of post-judgment remedies. Such affidavit shall state the facts and the reasons for the belief that bias, prejudice or an interest exists.”

Second, there is the Kansas Code of Judicial Conduct. Kansas Supreme Court Rule 601B, Canon 2 (2012 Kan. Ct. R. Annot. 723), which states that “[a] judge shall perform the duties of judicial office impartially, competently, and diligently.” Rule 2.11, under this Canon, addresses disqualification: “A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned.” Supreme Court Rule 2.11(A) (2012 Kan. Ct. R. Annot. 729). Circumstances in which a judge's impartiality might reasonably be questioned cover, among others, those in which the judge has a personal bias or prejudice concerning a party or a party's lawyer. Supreme Court Rule 2.11(A)(1).

Third, a litigant seeking a judge's recusal may rely on the Due Process Clause of the Fourteenth Amendment to the United States Constitution. See Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876–87, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009) (identifying four instances in which Due Process Clause requires recusal); see also Robinson, 293 Kan. at 1030–35, 270 P.3d 1183 (citing Davenport Pastures v. Board of Morris County Comm'rs, 291 Kan. 132, 144–46, 238 P.3d 731 [2010] [quoting Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975) ] ) (due process violated when, under all circumstances, probable risk of actual bias too high to be constitutionally tolerable).

We pause for a brief additional discussion of these three bases. The United States Supreme Court...