Wilson v. State

SEILER, Judge,

dissenting.

I cannot agree with that portion of the opinion which excuses counsel’s failure to honor defendant’s request for a change of judge. It is not accurate to say, as the principal opinion assumes, that the defendant merely “suggested” to counsel that the judge be disqualified. The trial court found as a fact (see page 248 of the principal opinion and page 251 of this dissent) that “Movant requested that the trial judge be disqualified”. There is ample evidence to support this finding, as seen from the testi*250mony set forth below. Our review as to this factual finding is limited to a determination of whether it is clearly erroneous. Rule 27.26(j). The record shows it is not. No doubt counsel was completely sincere and honest in his judgment and appraisal that he should not accede to defendant’s request, but the right to one change of judge, under our practice, is the client’s not the lawyer’s and, if the client makes the request, that is sufficient notice to the lawyer of what the client wants him to do. It is not required that the client say it again and again or somehow verbally italicize or forcefully emphasize his request for it to be valid.

The principal opinion is in error in treating this cause as though the trial court found as a fact that defendant did not request, but only suggested, a change of judge, which would relegate the matter to one of tactical judgment of counsel. It is on this specious premise that the opinion proceeds. What the trial judge found, as is clearly evidence from the quoted findings, is that counsel had good reasons for advising or persuading defendant not to take a change of judge, but the trial court did not find that defendant did not request counsel to take a change of judge. On the contrary, the trial court found that defendant did request a change of judge and our review of counsel’s effectiveness must be made in light of that factual finding.

For much of the remainder of this dissent I have borrowed freely from the dissenting opinion of Judge Pritchard in the court of appeals, western district.

As Judge Pritchard points out, the record of the evidentiary hearing to which we must address ourselves is this: [Movant’s testimony] “Q. Did you make any other requests of him regarding personnel or location of your trial? A. That he disqualify the Judge. Q. Who was that Judge? A. Judge Cave. Q. Why did you feel that you needed Judge Cave disqualified? A. He’s been on the bench on two prior convictions of mine and was my next-door-neighbor until I was three years old. We still own the property next door to him. Q. Did you feel he might be biased or prejudiced against you in the conduct of your trial on June 3, 1975? A. I either feel he would have been, I felt, I still feel he either would have been prejudiced or was prejudiced or would have tried to overcompensate because we did own the property next door to him. Q. Did you have those feelings back prior to your trial on June 3? A. Yes, sir. Q. Did you convey them to your attorney, Mr. Carson? A. Yes, sir. Q. Do you remember when or where you made these statements to him? A. Same occasions. Q. As the prior requests? A. As all three requests, at least three or four times. Q. What was his response to those requests dealing with Judge Cave? A. Told me he just refused to do that. Said wouldn’t do anything but make these people over here mad and cause them to rule against me in court on anything I brought before the Court.”

Movant’s appointed trial attorney testified: “Q. Did you, during the course of your representation of Mr. Wilson, have a conversation concerning the possibility of disqualifying Judge Cave from the case? A. Yes, Ma’am, I remember that. Q. Can you tell us to the best of your recollection the details of that? A. I’ll tell you what I recall about the conversation. He one time in our trial preparation suggested that I disqualify, that we — or he disqualify Judge Cave, and I — we discussed it quite a bit and I discouraged him and said I didn’t see any reason to disqualify Judge Cave because I thought he’d get a fair trial before him. And I just wasn’t really for doing that, and I didn’t do it. Q. Did he give you any reason for his desire to have Judge Cave disqualified? A. This is maybe — I don’t know — but I think he thought Judge Cave was prejudiced against him” (emphasis supplied). Counsel went on to testify that appellant’s reason for disqualifying Judge Cave was that he was prejudiced against him because he had been involved in a previous trial in which appellant had been sent to the penitentiary. Counsel’s opinion was that it was not necessary to disqualify Judge Cave.

*251As to the disqualification of the trial judge, the trial court concluded: “The final point raised, as contained in paragraph 4, is that Movant was denied effective assistance of counsel because counsel did not move to disqualify the trial judge. Both Movant and his then trial counsel agree that they had a conversation wherein the matter of disqualifying Judge Cave was discussed. It is, likewise, undisputed that counsel was aware that Judge Cave had presided at an earlier case involving Movant. While Mov-ant states that there were several conversations, Attorney Carson recalls only one such discussion. Carson, likewise, testified that he discouraged the proposed action and that, in his judgment, Movant would get a fair trial before Judge Cave. Again, this point is raised under the claim of ineffective assistance of counsel and must be considered in that light. Clearly, an examination of the trial transcript and the sentences imposed in no way discloses any evidence of bias or prejudice on the part of the trial judge. Likewise, Movant has failed in his presentation to show or even infer such a bias or prejudice. While as noted, Movant requested that the trial judge be disqualified, it appears that counsel elected not to do so, and there is no showing from the evidence adduced that Movant, even by his own testimony, insisted upon this cause [sic (course?)] of action” (emphasis supplied).

Former Rule 30.12, under which this case proceeded to trial on June 3, 1975 provided, “In any criminal case pending in any circuit court, the judge of said court shall be deemed incompetent and disqualified to hear and try said case when the judge is in anywise interested or prejudiced. * * * The judge shall be disqualified under the provisions of this Rule if, having previously given reasonable notice to the opposite party, the defendant or the prosecuting attorney shall file an affidavit stating the defendant or the state, as the case may be, cannot have a fair and impartial trial by reason of the interest or prejudice of the judge. * * Notable under Rule 30.12, no reason for the affidavit of prejudice of a circuit judge need be stated, and, of course, there need be no evidence to support that affidavit. Thus, the conclusion of the trial court and this court that an examination of the trial transcript and the sentence imposed in no way discloses any evidence of bias and prejudice of the trial judge is an irrelevant conclusion. There need be no such evidence, and the facts of bias and prejudice need not even be alleged, much less proved. Upon the filing of a proper affidavit, the judge has no discretion in the matter and must disqualify himself. State v. Bunton, 498 S.W.2d 67, 69 (Mo.App.1973), and cases cited.

It is of no consequence that movant failed further to insist that the judge be disqualified when his counsel adamantly refused to do so, as this record shows. Rule 30.12 speaks of the right of a defendant to disqualify a judge, a right which may not be taken away by counsel. This record is clear that movant believed Judge Cave to be prejudiced against him because of his participation in movant’s prior felony cases and their prior acquaintanceship, whatever it was.

Nor is it of consequence that movant had had prior experience in trials or that he was not shy or reticent or that he did not ask that counsel be replaced or that he knew he had the right to address the court or that his complaints are numerous or that counsel put in many hours on the case, as covered on pages 247-249 of the opinion. None of this changes the fact that it is the defendant’s right to disqualify a judge, a right which may not be taken away by counsel.

The principal opinion says that the trial judge’s knowledge of the two prior felonies is something which any judge called to try the case would necessarily learn of and that hence the independent knowledge of the trial judge in that respect means nothing. But that has reference to the situation where evidence of prior convictions comes in on an allegation that a defendant is a second offender and only the bare record of the conviction, sentence and imprisonment need be presented. In such cases, none of the details of the facts adduced in the prior convictions are considered. But here, to appellant’s mind, Judge Cave’s independent *252knowledge of the facts as brought out in the guilty pleas taken before him as the trial judge in those cases could mean something more than the insignificance attributed to it in the principal opinion.

It is pure speculation (as there is nothing in the record to support it) that counsel may have had in mind the possibility of “jumping from the frying pan into the fire”, as though if true this would constitute the basis for a tactical decision by counsel which should not lightly be second guessed. Speculation or not, however, the rule about deference to tactical decisions of defense counsel when considering claims of ineffective assistance does not apply here, as this was not counsel’s tactical decision to make. The point is that defendant here, under the rule, has the personal choice and right to meet and hazard whatever other judge is assigned to adjudge his case. Counsel should properly have advised defendant of counsel’s view of the lack of wisdom in taking a change of judge and explained his position, but at the same time making it clear that if defendant wanted a change of judge, counsel would honor his request. This is an area of legal representation where the authority to make the decision was exclusively that of the client, just as, for example, it is for the client to decide whether a plea should be entered. See Canon 7, EC 7-7 and 7-8.

State v. Reid, 114 Ariz. 16, 559 P.2d 136 (banc 1976), said to be somewhat similar to this case in the principal opinion, is not similar. First, there was no pre-trial request by the defendant to disqualify the judge which should have been honored by counsel. In that circumstance, the Arizona court held merely that defendant was bound by his counsel’s agreement that the case be tried before a particular judge — a situation no different than that of a judge being assigned to a case under court procedure. Thus, defendant’s day-of-trial motion was held not to be timely, which was the real basis for the ruling.

It is a dangerous precedent announced in the majority opinion that counsel, upon his own evaluation and conclusion from his version of facts, may overrule a request by a defendant in a criminal case to disqualify a judge, a right clearly personal to defendant.

Under the charges here, the punishment could have been two to ten years for second degree burglary, and two to five years for the stealing in connection therewith. The two sentences could have been imposed to run concurrently. Here, movant was alleged to be a second offender, and counsel must have known that the jury would pass only upon the matter of movant’s guilt, and the judge would then set the sentences. Counsel should not have substituted his judgment for movant’s belief of the judge’s prejudice, and, in this respect, it must be concluded that his representation of movant was ineffective. The matter of choice as to disqualification of the judge was personal to movant, not his counsel, and counsel should have honored that choice.

Other claimed grounds of ineffective assistance of counsel are ruled correctly in the majority opinion, and I agree there is no basis to disturb the jury’s verdict of defendant’s guilt. However, I would reverse this case and remand it with directions to set aside the sentences, grant movant a change of judge other than those who presided over the original trial and this proceeding, and then resentence movant.

For the foregoing reasons, I respectfully dissent.