State v. Tapio

• Decision Date: 30 November 1988
• Docket Number: Nos. 16283,16320 and 16323,16285,s. 16283
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. Robert Dean TAPIO and Blaine John Brings Plenty, Defendants and Appellees.
• Court: South Dakota Supreme Court

Page 268

432 N.W.2d 268

STATE of South Dakota, Plaintiff and Appellant, v. Robert Dean TAPIO and Blaine John Brings Plenty, Defendants and Appellees.

Nos. 16283, 16285, 16320 and 16323.

Supreme Court of South Dakota.

Argued Aug. 30, 1988.

Decided Nov. 30, 1988.

Wade A. Hubbard, Asst. Atty. Gen., Pierre, for plaintiff and appellant; Roger A. Tellinghuisen, Atty. Gen., and Thomas H. Harmon, Deputy Atty. Gen., Pierre, on brief.

George E. Grassby, Rapid City, for defendant and appellee Robert Dean Tapio.

James F. Margadant, Rapid City, for defendant and appellee Blaine John Brings Plenty.

MILLER, Justice.

In this consolidated intermediate appeal, we reverse the orders of the trial court which (1) reinstated a disqualified judge to preside over two criminal actions, (2) removed the state's attorney and his staff from prosecuting the actions, and (3) required the attorney general to assume prosecution of the actions. We affirm that part of the trial court's orders raised by notice of review, which denied defendants Robert Dean Tapio's and Blaine John Brings Plenty's (appellees') motions to dismiss grounded on prosecutorial misconduct.

PROCEDURAL HISTORY AND FACTS

Appellees currently stand charged by Information in Pennington County, South Dakota, for the alternative offenses of first-degree murder, second-degree murder, or first-degree manslaughter, and a second count of first-degree manslaughter. Each also stands charged with being an habitual offender. Appellees made an initial appearance and were later afforded a preliminary hearing in circuit court. Both appellees' cases were then assigned to the Honorable Merton B. Tice, Jr. for trial.

Pennington County State's Attorney Dennis Groff (Groff) thereafter requested by letter that Judge Tice remove himself from the cases. Such request was denied by Judge Tice and affidavits for change of judge were subsequently filed by Groff. The presiding judge, the Honorable Marshall Young, as required by SDCL 15-12-32, reviewed the affidavits, and, after determining that everything was in order, assigned the cases to himself.

At their arraignment, appellees objected to Groff's affidavits for change of judge and further informed the court that they planned to file motions to dismiss the charges grounded on prosecutorial misconduct. Motions to dismiss were subsequently filed, alleging that the State's improper use of the affidavits for change of judge against Judge Tice amounted to prosecutorial misconduct.

Presiding Judge Young disqualified all of the judges of the Seventh Judicial Circuit from considering appellees' objections to the affidavit for change of judge and their motions to dismiss. Chief Justice Wuest subsequently assigned the Honorable Scott Moses of the Eighth Judicial Circuit to consider the objections and hear the motions for dismissal.

At the hearing, Judge Moses, over objection, ordered that Groff testify concerning the contents of his affidavits for change of judge. Groff testified that he had filed affidavits against Judge Tice in all (at least eighty-three) felony cases since July 1986 pursuant to a policy adopted by him at that time. He also stated that he had personally signed all of the affidavits and complied with the statutory provisions for removal of the judge in each case. Groff was also required to testify, over objection, concerning his reasons for wanting to remove Judge Tice. ¹

Judge Moses (hereinafter referred to as trial court) determined that Groff's blanket removal of Judge Tice from all felony cases without any case-by-case analysis amounted to bad faith. The trial court then concluded that the policy used by Groff constituted an abuse of the rules of criminal procedure, amounting to prosecutorial misconduct.

The trial court found that while prosecutorial misconduct had occurred, it was not prejudicial to appellees and held that the appropriate remedy for the misconduct was to disqualify Groff from prosecuting the cases. Further, the trial court disqualified the entire staff of the state's attorney's office from prosecuting the cases because the decision to remove Judge Tice from all felony cases was ultimately made by Groff in each instance. The trial court then ordered that the Office of the Attorney General prosecute these cases. The trial court finally ordered that Judge Tice be reinstated to preside over the cases since the affidavits filed against him were made in bad faith and therefore were invalid.

The State appeals the trial court's decision, alleging that the court erred when it required Groff to establish actual prejudice to support his affidavits for removal of the judge pursuant to SDCL 15-12-26, that the court erred in finding prosecutorial misconduct and that the court erred in disqualifying the entire state's attorney's office from the cases and appointing the attorney general in its place.

Appellees allege that Groff's blanket disqualifications of Judge Tice constituted prosecutorial misconduct which prejudiced them. Thus, they argue, by notice of review, that the trial court should have granted their motions to dismiss with prejudice.

DECISION

I

WHETHER SDCL 15-12-26 REQUIRES A SHOWING OF ACTUAL PREJUDICE

TO SUPPORT AN AFFIDAVIT FOR REMOVAL OF A JUDGE.

The procedure to obtain a change of judge in any action, be it civil or criminal, is simple and clear. See SDCL ch. 15-12. If any party or attorney desires a change of judge they must first informally (by letter, oral communication or on the record in open court or chambers) request the judge to disqualify himself. SDCL 15-12-21.1. The person seeking to disqualify the judge cannot be required to state his reasons, and although opposing litigants are to receive copies of correspondence or be apprised of any communications, they cannot contest the request. SDCL 15-12-21.1. If the judge grants the request, the presiding circuit judge is notified and a replacement judge is assigned. If the judge denies the request, he must so notify the parties or attorneys in writing.

Under SDCL 15-12-22, the party or attorney whose informal attempts at changing judge have been denied, may file an affidavit seeking to disqualify the judge. SDCL 15-12-26 sets forth the form and content of such affidavits, stating:

An affidavit for change of judge or magistrate shall state the title of the action and shall recite that the affidavit is made in good faith and not for the purpose of securing delay, that in the ordinary course of litigation such action or some issue therein is expected to come on for trial before such judge or magistrate sought to be disqualified; that the party making such affidavit has good reason to believe and does actually believe that such party cannot have a fair and impartial trial before the named judge or magistrate. Only one judge or magistrate shall be named in such affidavit. It shall not be necessary to state in such affidavit the ground or reason for such belief. (Emphasis added.)

After the affidavit has been properly served and filed, it is submitted to the presiding circuit judge who reviews it under SDCL 15-12-32. If the presiding judge determines that the affidavit is "timely and that the right to file the affidavit has not been waived or is not otherwise legally defective," he shall assign the case to another circuit judge.

Our rule ² does not require a specific showing that the judge against whom disqualification is sought is, in reality, prejudiced. This has not always been the case. South Dakota, prior to amending its procedure, previously required that the affiant had reason to believe that "a fair and impartial trial or hearing cannot be had before said judge by reason of the prejudice or bias of such judge." (Emphasis added.) See 1927 S.D.Sess.L. ch. 89, Sec. 2. This court, by rule, amended the former statute, deleting the "prejudice or bias" language. From that point forward, proof of prejudice was no longer required.

SDCL 15-12-26, as it currently reads, is silent as to whether the "good faith" of the affiant is to be analyzed from an objective or subjective viewpoint. It merely states that the affidavit must be made in good faith and not for the purpose of delay and that the affiant has good reason to believe and does actually believe that the party cannot have a fair and impartial trial before the judge against whom disqualification is sought. The rule also specifically states that it is not necessary that the affiant state the grounds or reasons for his belief. (It must be remembered, too, that under SDCL 15-12-21.1 the person seeking an informal disqualification cannot be required to state his reasons.) Under SDCL 15-12-32, the presiding judge must review the affidavit but the rule does not require that the presiding judge look behind the face of the affidavit to determine the objective good faith of the affiant. The record here reflects that the presiding judge complied with SDCL 15-12-32.

Reading SDCL ch. 15-12, as a whole, we believe that an affiant (be he a prosecutor, defense counsel or defendant in a criminal action or an attorney or litigant in a civil action) must not be subjected to an objective standard in order to determine whether the affidavit was made in good faith. Rather, all that is required is that the affiant in his own mind actually and in good faith believes that he cannot have a fair and impartial trial before the named judge. Thus, the trial court's attempt here to require an objective standard for determining an affiant's (Groff's) good faith was erroneous, necessitating reversal.

II

WHETHER THE STATE'S ATTORNEY'S CONDUCT WARRANTED DISMISSAL

OF THE CHARGES.

In order to exercise a remedy for prosecutorial misconduct, this court has held that such misconduct must be of sufficient significance to result in the denial of the defendant's right to a fair trial. It must be a prejudicial error which will probably produce some effect on the final result. State v. Rosales, 302 N.W.2d 804 (S.D.1981)....