State v. Smith, 58248

• Decision Date: 19 May 1976
• Docket Number: No. 58248,58248
• Parties: STATE of Iowa, Appellee, v. Robert Lewis SMITH, Appellant.
• Court: Iowa Supreme Court

Page 320

242 N.W.2d 320

STATE of Iowa, Appellee, v. Robert Lewis SMITH, Appellant.

No. 58248.

Supreme Court of Iowa.

May 19, 1976.

Richard Poffenberger, Perry, for appellant.

Richard C. Turner, Atty. Gen., Earl W. Roberts, Jr., Asst. Atty. Gen., and Alan Shirley, County Atty., for appellee.

Heard by MOORE, C.J., and RAWLINGS, UHLENHOPP, REYNOLDSON and McCORMICK, JJ.

RAWLINGS, Justice.

Charged with having committed murder in violation of Section 690.1, The Code 1973, defendant Robert Lewis Smith entered a guilty plea, was found guilty of murder in the second degree and accordingly sentenced. He appeals. We affirm.

After return of indictment by the Dallas County Grand Jury, Smith first pled not guilty and later moved for a change of venue. Judge Wifvat, at all times presiding, hereafter occasionally referred to as the judge, sustained defendant's motion and ordered the cause transferred to Guthrie District Court for trial.

Subsequently, Smith filed a suppression motion which was sustained in part, overruled in part.

Thereafter defendant withdrew his not guilty plea, entered a plea of guilty and the judge thereupon ordered a Code § 690.4 degree of culpability hearing be held. Prior to the time thus fixed, defendant filed a 'Motion for Disqualification' of Judge Wifvat. This matter was duly heard by him and overruled.

The above noted culpability hearing was later held. The judge, as aforesaid, found defendant guilty of second degree murder and sentenced him to life imprisonment.

Reduced to bare essentials, these are the issues presented for review: (1) Did the judge err in overruling defendant's 'disqualification motion'; (2) does the record support a finding of murder in the second degree; (3) is the life imprisonment sentence excessive?

I. By his 'Motion for Disqualification' Smith sought to replace Judge Wifvat for the degree of guilt hearing. In support thereof defendant alleged, in substance, the judge (1) was acquainted with the murder victim, Richard Yager, and had patronized his restaurant in Adel (Dallas County); (2) 'participated in receiving' the guilty plea of a co-defendant, Ivyle Kimmel, heard statements by him and others regarding perpetration of the instant crime and thus became biased against defendant Smith; (3) presided during the hearing on Smith's pretrial suppression motion, then heard testimony by eight prosecution witnesses and was attendantly prejudiced against this defendant; (4) told defense counsel 'the defendant may stand a better chance with a jury than with me'; and (5) accepted Smith's guilty plea at which time defendant, over objection by his attorney, was asked to tell how the offense had been committed.

By a lengthy order dictated into the record, and subsequent written supplement thereto, defendant's aforesaid motion was overruled. In support thereof the judge stated he (1) was not biased or prejudiced against defendant Smith; (2) never engaged in any social, personal or business relationship with decedent Yager; (3) had not patronized decedent's restaurant more than once each year from 1970 to 1974 and only occasionally prior thereto; (4) questioned co-defendant Kimmel as a prerequisite to acceptance of his guilty plea and such 'generated no bias in this judge against defendant' Smith; (5) explained that by his statement to the effect defendant might fare better with a jury he meant 'a jury could find defendant not guilty, while the court in a degree of guilt hearing following a plea of guilty to an open charge (of murder) would at least have to hold Defendant for manlaughter'. $Mindful of the foregoing, we now allude to Chapter 778, The Code 1973.

Section 778.1 states:

'In all criminal cases which may be pending in any of the district courts, any defendant therein, or the state, in cases where defendant is charged with felony, may petition the court for a change of place of trial to another county.'

Section 778.2 says:

'Such petition, when filed by the defendant, must set forth the nature of the prosecution, the court where the same is pending, and that such defendant cannot receive a fair and impartial trial Owing to the prejudice of the judge, or to excitement or prejudice against the defendant in such county, and be verified on information and belief by the affidavit of the defendant.' (emphasis supplied).

And § 778.9 provides: 'The court, in the exercise of a sound discretion, must, when fully advised, decide the matter of the petition according to the very right of it.' See also Iowa R.Civ.P. 167.

By virtue of § 778.2 quoted Supra, it is to us apparent defendant's 'disqualification motion' must be deemed a motion for change of venue. In any event, it is so entertained.

Further, with regard to bias, the Iowa Code of Judicial Conduct, adopted October 9, 1973, effective November 1, 1973, must be here considered. In relevant part, Canon 3 thereof declares:

'C. Disqualification.

'(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:

'(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; * * *.'

This means we are now, for the first time, called upon to determine applicability of Code § 778.2 'prejudice of the judge' in juxtaposition with Canon 3C(1)(a), quoted above.

II. Briefly stated, Canon 3C(1)(a), is basically a broad standard by which a judge should sua sponte determine the matter of self-recusation. Stated otherwise it, followed by specifics (interest and relationship), stands as a guiding precept upon which every judge, by an objective in-depth search of his or her own conscience, must decide whether a fair trial dictates he or she should make way for another judge to preside in a given justiciable controversy be it civil, criminal or otherwise. Such recusation may be self-initiated, or triggered by the filing of a motion for change of venue predicated upon prejudice. In either event, as demonstrated Infra, it is for the judge, under Code § 778.9 and Canon 3, Code of Judicial Conduct, both quoted Supra, to initially determine whether a fair trial dictates recusation.

Noticeably, Canon 3, in its entirety, appropriately supplements Code § 778.2 by providing an objective standard or guideline upon which to also determine, in retrospect, whether a judge in a given instance should or should not have disqualified himself or herself.

Without question, bias or prejudice is the most difficult of the Canon 3 triad (bias, interest or relationship) to apply because it defies any exact basis of measurement.

Significantly, however, only personal bias or prejudice, as distinguished from judicial predilection, constitutes a disqualifying factor. See Canon 3C(1)(a), quoted above; United States v. Beneke, 449 F.2d 1259, 1260--1261 (8th Cir. 1971); Lazofsky v. Sommerset Bus Co., Inc., 389 F.Supp. 1041, 1043 (E.D.N.Y.1975); United States v. Mitchell, 377 F.Supp. 1312, 1316--1317 (D.D.C.1974).

This means evidence presented in the trial of a prior cause, or definite views on the law, create no personal bias since they do not stem from an extrajudicial source. See Antonello v. Wunsch, 500 F.2d 1260, 1262 (10th Cir. 1974); United States v. Mitchell, 377 F.Supp. at 1318--1319; 46 Am.Jur.2d, Judges, § 167; 48 C.J.S. Judges § 82b.

In the same vein it has been appropriately said:

"(A judge) must have neighbors, friends and acquaintances, business and social relations, and be a part of his day and generation. * * * the ordinary results of such associations and the impressions they create in the mind of the judge are not the 'personal bias or prejudice' to which the statute refers." Commonwealth of Pa. v. Local U. 542, Int. U. of Op. Eng., 388 F.Supp. 155, 159 (E.D.Pa.1974).

It is also understood the burden is upon an affiant to establish the basis for disqualification upon claimed personal bias by allegations of fact not conclusions or frivolous assertions. See Deal v. Warner, 369 F.Supp. 174, 177 (W.D.Mo.1973). See also State v. Dague, 206 N.W.2d 93, 95 (Iowa 1973).

Moreover, it is well settled in this jurisdiction, a judge confronted with a change of venue motion based upon his or her alleged bias may, in the exercise of sound discretion, resolve the issue, i.e., it need not be necessarily referred to an associate. As articulated in State v. Miller,254 Iowa 545, 548, 117 N.W.2d 447, 450 (1962):

'When a trial judge must pass upon a motion for change of venue based on allegations of his own prejudice he must consult his own feelings, as well as other matters, and grant or deny the change, as he may think the right demands, in the exercise of a careful discretion. Abuse of discretion must appear before we will interfere.'

And in State v. Gibson, 204 Iowa 1306, 1310, 214 N.W. 743, 745 (1927), this court said:

'The right to a change of judge is not one of absolute right. The judge is entitled to consult his own mind, and he, perhaps better than anyone else, knows whether or not he can give a defendant on trial before him a fair and impartial trial in every way. The high appreciation of judicial duties should prompt any judge to refrain from presiding at the trial of one charged with crime when he feels a consciousness that he cannot act in the matter with impartiality and without a feeling of prejudice.'

See also Deal v. Warner, 369 F.Supp. at 176; 46 Am.Jur.2d, Judges, §§ 198--199; 48 C.J.S. Judges § 94d.

For comprehensive overviews of the subject discussed above see Duplan Corporation v. Deering Milliken, Inc., 400 F.Supp. 497 (D.S.C.1975); Deal v. Warner, supra; 13 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction, § 3541, et seq. (1975).

It is to us apparent defendant's instantly involved motion fails to reveal any basis upon which to find existence of disqualifying extrajudicial personal bias or prejudice by Judge Wifvat. Although we incline to the...