ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
James H. Voyles Jeffrey A. Modisett
Jennifer M. Lukemeyer Attorney General of Indiana
Symmes, Voyles, Zahn, Paul & Hogan
Indianapolis, Indiana Janet Brown Mallett
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
DOUGLAS R. ALLEN, )
Defendant-Appellant, )
)
v. ) 75S05-0011-CR-623
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE STARKE CIRCUIT COURT
The Honorable David P. Matsey, Judge
Cause No. 75C01-9710-CF-089
________________________________________________
On Petition To Transfer
November 3, 2000
DICKSON, Justice
The defendant, Douglas R. Allen, was convicted of the October 5,
1997, battery,[1] criminal confinement,[2] and intimidation[3] of his
estranged wife. His convictions were affirmed by the Indiana Court of
Appeals. Allen v. State, 725 N.E.2d 472 (Ind. Ct. App. 2000). Seeking
transfer, the defendant contends that the Court of Appeals improperly
applied the test for reviewing whether the trial court should have granted
his motion for a change of judge. We grant transfer to address this issue,
summarily affirm the Court of Appeals as to the other issues, and affirm
the judgment of the trial court.
The defendant asserts that the trial court erred in denying his
motion for change of judge because there was a reasonable basis for
doubting the judge's impartiality due to the extra-judicial activities of
the judge and his wife with respect to the Starke County Coalition Against
Domestic Abuse. In support of his motion for change of judge the defendant
submitted his own affidavit, the historical facts of which were certified
as true by the separate affidavit of his attorney. The defendant's
affidavit stated, in part, as follows:
That contemporaneously with the defendant's voluntary surrender,
prior to the filing of any criminal charges herein and
contemporaneously with the defendant's preliminary court appearance .
. . there was occurring in Knox, Starke County, Indiana, significant
and substantial publicity and promotion, concerning a phoneathon . . .
designed to call the public's attention to and solicit donations for
the Starke County Coalition Against Domestic Abuse, said donations to
be used in the adaptation and or improvement of a Transitional House,
a site to be used as a haven for victims of domestic abuse.
That the president of the said Starke County Coalition Against
Domestic Abuse is Ruth Matsey, the wife of the regular Judge herein,
David Matsey.
The undersigned is informed and verily believes that at said
phoneathon . . . Judge David Matsey appeared and spoke, presumably in
support of the announced objectives and desires of the Starke County
Coalition Against Domestic Abuse, of which his wife Ruth Matsey is
president.
Record at 31-32. The defendant's affidavit further asserts that, although
the Prosecuting Attorney's Office requested bond in the amount of $50,000,
the trial court set bond in the amount of $100,000.
The defendant's request for a change of judge is governed by Indiana
Criminal Rule 12(B):
In felony and misdemeanor cases, the state or defendant may request a
change of judge for bias or prejudice. The party shall timely file an
affidavit that the judge has a personal bias or prejudice against the
state or defendant. The affidavit shall state the facts and the
reasons for the belief that such bias or prejudice exists, and shall
be accompanied by a certificate from the attorney of record that the
attorney in good faith believes that the historical facts recited in
the affidavit are true. The request shall be granted if the
historical facts recited in the affidavit support a rational inference
of bias or prejudice.
Rejecting the defendant's claim, the Court of Appeals concluded that
the defendant must establish prejudice which must be shown "by the conduct
of the trial judge and not inferred from the judge's subjective views" and
that reversal for bias or prejudice was warranted only "where the judge had
expressed an opinion on the merits of the case, in other words, on the
issue of guilt or innocence." Allen, 725 N.E.2d 472 at 475 (citing Kail v.
State, 528 N.E.2d 799, 804 (Ind. Ct. App. 1988)). This standard was
superseded by the adoption of the present language of Criminal Rule
12(B).[4]
Under the applicable procedure, a change of judge is neither
"automatic" nor "discretionary." Blanche v. State, 690 N.E.2d 709, 714
(Ind. 1998). A party is entitled to a change of judge only "if the
historical facts recited in the affidavit support a rational inference of
bias or prejudice." Crim. R. 12(B). This is not limited to cases in which
the judge has expressed an opinion on guilt or innocence or the merits of
the case. It does not depend on a subjective showing that the trial judge
is actually biased or prejudiced. In considering a motion for change of
judge, the challenged judge's ruling does not depend upon a self-assessment
of actual bias or prejudice. The judge must instead determine whether the
historical facts presented in support of the motion lead to a rational
inference of bias or prejudice.
Upon appeal of this decision, the standard of review is not whether
the judge's decision was an abuse of discretion but rather whether it was
clearly erroneous. Sturgeon v. State, 719 N.E.2d 1173, 1182 (Ind.
1999).This is a determination of law not a determination of fact dependent
upon assessment of weight or credibility of evidence. Legal conclusions
are not deferentially reviewed for abuse of discretion but are matters for
appellate determination.[5] Furthermore, we note that wWhen Criminal Rule
12 was substantially revised in 1995, separate subsections (B) and (C) were
created to distinguish cases involving felonies and misdemeanors from those
involving infractions and ordinance violations. The former rule, expressly
providing that rulings on motions for change of judge in criminal actions
"may be reviewed only for abuse of discretion," former Ind. Crim. R. 12
(1981), was retained in the new subsection (C) for infractions and
ordinance violations. As to felonies and misdemeanors, however, the new
subsection (B) omitted the "abuse of discretion" standard of review. As in
Sturgeon, the defendant appeals from felony convictions.
The issue presented is thus whether the trial judge, in determining
whether the historical facts recited in the affidavit support a rational
inference of bias or prejudice, was clearly erroneous. The defendant notes
Noting that he was charged with violent offenses against his wife and , the
defendant argues that the trial judge could not impartially sit on this
case because of the involvement of the judge and his wife in the fight
against domestic violence. In essence, the defendant's affidavit asserts
that the trial judge's wife is president of the Starke County Coalition
Against Domestic Abuse, that the judge appeared and spoke at a local radio
phoneathon designed to publicize the organization and to solicit donations
for a haven for victims of domestic abuse, and that the trial judge set
bail higher than that requested by the State. The affidavit presents no
facts regarding the content of the judge's remarks at the phoneathon. It
presents no facts suggesting that the organization functions in an advocacy
role seeking to influence the outcome of judicial proceedings.
As to the judge's wife's involvement in an organization devoted to
preventing domestic abuse and to providing shelter for its victims, we
decline to find a rational inference that the judge was thereby biased or
prejudiced. We likewise find no rational inference of bias or prejudice in
the judge's determination of initial bond.
The personal appearance of the judge in the phoneathon presents a more
difficult question. The Indiana Code of Judicial Conduct requires that
judges "shall act at all times in a manner that promotes public confidence
in the integrity and impartiality of the judiciary." Ind. Judicial Conduct
Canon 2(A). A judge must not "allow family, social, political, or other
relationships to influence the judge's judicial conduct or judgment." Jud.
Canon 2(B). The Code generally permits a judge to speak and participate in
extra-judicial activities "concerning the law, the legal system, the
administration of justice, and non-legal subjects." Jud. Canon 4(B).[6]
This is a valuable component of the public service provided by the
judiciary:
As a judicial officer and person specially learned in the law, a
judge is in a unique position to contribute to the improvement of the
law, the legal system, and the administration of justice, including
revision of substantive and procedural law and improvement of criminal
and juvenile justice. To the extent that time permits, a judge is
encouraged to do so, either independently or through a bar
association, judicial conference or other organization dedicated to
the improvement of the law. Judges may participate in efforts to
promote the fair administration of justice, the independence of the
judiciary, and the integrity of the legal profession, . . . .
Jud. Canon 4(B), cmt.
While not strictly a bar association or judicial conference, an
organization serving victims of domestic violence is not unlike various
organizations dedicated to the improvement of the law. Indiana judges
routinely appear and often speak at functions of organizations seeking, for
example, to advance juvenile justice, to improve criminal rehabilitation,
to prevent crime, and to encourage mediation and other alternative dispute
resolution methods. This participation does not raise a rational inference
of bias or prejudice if such judges preside over juvenile cases, criminal
sentencing proceedings, probation revocation hearings, or jury trials. So
it is with this judge's appearance and participation with an organization
seeking to assist the victims of domestic violence.
Because the historical facts recited in the defendant's affidavit do
not support a rational inference of bias or prejudice, we decline to find
error in the trial court's denial of the defendant's motion for change of
judge. In all other respects, the opinion of the Court of Appeals is
summarily affirmed. Ind. Appellate Rule 11(B)(3). The judgment of the
trial court is affirmed.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Ind. Code § 35-42-2-1(a)(3).
[2] Ind. Code § 35-42-3-3(1).
[3] Ind. Code § 35-45-2-1(a)(1)(b)(1).
[4] Subsection (B), which applies to felony and misdemeanor cases, was
added to Criminal Rule 12 effective July 1, 1995. December 5, 1994, Order
Amending Rules of Criminal Procedure Relating to Change of Judge (found in
volume 641-642 of Ind. Cases ed. of N.E.2d at XLII, XLVII). In Sturgeon v.
State, 719 N.E.2d 1173, 1181 n.4 (Ind. 1999), we previously misstated the
effective date for the addition of subsection (B) as February 1, 1995,
based on Ind. Code Ann. tit. 35, app., Court Rules (Criminal) (West 1981 &
Supp. 1999) (Historical Note regarding Crim. R. 12).
[5] Relying on Harrison v. State, 644 N.E.2d 1243, 1249 (Ind. 1995),
the Court of Appeals asserted that a "ruling on a change of judge motion
lies within the sound discretion of the trial court and will be reversed
only upon a clear showing of an abuse of that discretion." Allen, 725
N.E.2d at 475. Harrison, however, was decided on January 4, 1995, under
the former rule, before the effective date of subsection (B). Similarly,
the defendant urges application of the Chief Justice's statement denying
reconsideration of his recusal in Tyson v. State, 622 N.E.2d 457 (Ind.
1993), which also preceded the adoption of subsection (B).
[6] The facts asserted in the defendant's affidavit raise the
possibility that the judge's conduct violated the proscription against
speaking at an organization's fund-raising event. See Jud. Canon
4(C)(3)(b), cmt.; but cf. Ind. Comm’n. on Jud. Qualifications, Advisory Op.
1-96 (1996). This possibility, however, is not relevant to the issue of
bias or prejudice.