dissenting.
I respectfully dissent. It is clear from this record Ware was denied his constitutional right to a fair trial by an impartial arbiter, one of the fundamental rights guaranteed both by the Indiana Constitution, Art. I, Sections 12 and 18, and the United States Constitution's Fifth Amendment requiring due process of law.
On the trial date previously set by the trial court, the State told the court it wasn't ready for trial and moved for a continuance. Ware's counsel told the judge he was ready for trial and was fearful if it were continued, he might lose the benefit of certain defense witnesses who might move away. The trial commenced but the judge threatened to continue the case when Ware's counsel objected to a State's exhibit. Under the pressure of that moment, Ware's counsel offered to withdraw his objection just to keep the trial going, and leaped at the trial court's offer to hear Ware's defense without first having heard the prosecution's evidence.
The evidence of guilt was not overwhelming in this case, even after all the evidence had been heard. The police officer himself testified he did not see Ware driving the car, and all of Ware's witnesses testified someone other than Ware was driving it. Further, it must be kept in mind at the times Ware complains of judicial impropriety, there was no State's evidence before the court, only a charging information.
It is readily apparent the trial judge was prejudiced against Ware's defense from the outset. He disparaged defense witnesses with sarcastic comments as to how "fascinating" and "creative" their testimony would be even before they had testified, and told defense counsel he could present the testimony of "the Mormon Tabernacle Choir" if he wished to do so after announe-ing he would hear Ware's defense without having heard the prosecution's case.
In commenting on the propriety of such conduct, the court in Dixon v. State (1972), 154 Ind.App. 608, 290 N.E.2d 731, most appropriately said:
Sarcasm and ridicule emanating from the bench in a criminal trial are destructive weaponry. They contaminate the trial. Their use by the trial judge may have an incalculable adverse effect on the administration of justice, ...
Whether directed at the prosecution or the defense or both, intimidated participants in the trial may be unable to perform their proper function-a cowed defense counsel fails to object to inadmissi*545ble evidence-a rattled witness becomes incoherent. One such occurrence may thwart justice. If such adverse effects can be demonstrated, the error created will be reversible for denial of due process of law. (Emphasis supplied).
Dizon, 290 N.E.2d at 740-741.1 The most telling conduct, however, was the judge's assumption of facts not in evidence.
During the testimony of Ware's employer, the trial judge interrupted the presentation and asked the witness if he was aware the defendant didn't have a driver's license, the assumption of a fact not in evidence and one of the crucial points of the State's case. Further, the trial judge interrogated the witness as to purely inadmissible evidence, namely, whether the witness had seen Ware driving an automobile at times other than the occasion charged in the information for which he was being tried.
I believe it eminently clear the trial judge was prejudiced against Ware's defense from its outset, and for that reason Ware was denied a fair trial. While a trial judge during a court trial is given wide latitude to determine the course upon which it will proceed, his intervention cannot be such as to taint the trial with obvious unfairness, as was the case here. Even without the presence of a jury to be influenced, the trial court has the duty to conduct proceedings in an impartial manner, so as not to intimidate either party in presenting matters to the court or to demean the public image of judicial integrity. Bruce v. State (1978), 268 Ind. 180, 375 N.E.2d 1042, 1056; Meyers v. State (1977), 266 Ind. 513, 364 N.E.2d 760, 768. R
Because Ware was denied a fair trial by an impartial arbiter in violation of his right to due process, I would grant Ware a new trial.
. Shortly after the time of trial in Dixon, our supreme court enacted the Code of Judicial Conduct which deals, in part, with the manner in which judges should demean themselves during trials. Currently, Canon 3 at (A)(1) and (3) provides:
(1) A judge should be faithful to the law and maintain professional competence in it. He should be unswayed by partisan interests, public clamor, or fear of criticism....
(3) A judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers and others with whom he deals in his official capacity, and should require similar conduct of lawyers, and of his staff, court officials, and others subject to his direction and control.
I do not believe the tenents of Canon 3(A)(3) were followed in this case.