Smith v. District Court for the Fourth Judicial District, State of Colorado, Division 6

ERICKSON, Justice,

specially concurring in the result only:

The sole issue for review is whether the defendant’s motion for disqualification of judge and the supporting affidavits, which we must accept as true, establish that the judge was prejudiced against the defendant. Botham v. People, Colo., 629 P.2d 589; Carr v. Barnes, 196 Colo. 70, 580 P.2d 803 (1978); People v. District Court, 192 Colo. 503, 560 P.2d 828 (1977). The motion to recuse the judge is legally insufficient because it is supported by affidavits which do not establish bias, prejudice, or a bent of mind. The prejudice issue is being considered totally out of context when viewed in the light of the facts of this case. Therefore, I concur in the result reached by the majority. The rule to show cause should be discharged.

A statement of the factual background upon which the motion was made provides a sound basis for discharging the rule to show cause. The defendant, while intoxicated, robbed a Taco John restaurant by threatening the employees with a pistol. He was initially charged with aggravated robbery. Section 18-4-302, C.R.S.1973 (1978 Repl. Vol. 8). As the result of a plea agreement, the defendant was permitted to plead guilty to simple robbery. Section 18-4-301, C.R.S. 1973 (1978 Repl.Vol. 8). When the defendant’s plea was entered, the judge ordered a presentence investigation report, and set a date for sentencing. Section 16-11-102, C.R.S.1973 (1978 Repl.Vol. 8) (1980 Supp.). Crim.P. 32(a).

On the date set for sentencing, defense counsel, contrary to the defendant’s wishes, moved for a continuance. The judge had reviewed the presentence investigation report and was prepared to impose sentence at that time.1 However, he granted the motion for a continuance so defense counsel could obtain a psychiatric report. The defendant was an alcoholic with a history of violent and assaultive conduct when he was drinking. The presentence investigation report contained the recommendation that probation be denied on several grounds, which included a prediction that there was an extremely high probability that the defendant would repeat his assaultive conduct. Moreover, the report contained facts relating to a prior arrest where the defendant stated to the arresting officer that he would get a gun and kill a cop when he was bonded out. When the arresting officer asked the defendant if he was referring to a specific officer, the defendant replied, “No, just any cop will do.”

The events leading to the motion for disqualification occurred shortly after the sentencing hearing was continued. Upon leaving the courtroom, the defendant said in the presence of a deputy sheriff, “That senile old motherfucker, he ought to be shot. I’ll kill him.” The deputy believed that the defendant was referring to the judge, and he informed the judge of the defendant’s threat. Later the same day, the deputy sheriff again overheard the defendant say, “I’ll shoot the motherfucker. His day is coming — maybe sooner than he thinks.”2

When the judge learned of the defendant’s threats, he contacted defense counsel. Based upon the information contained in the presentence investigation report relating to the defendant’s propensity for violence and the defendant’s threats against the judge, it was proper for the judge to inform defense counsel of the defendant’s *1059statements.3 While in chambers, defense counsel asserts that the trial judge stated: “I think he would do it.” The judge’s statement forms the basis for the defendant’s motion for disqualification.4

The motion for disqualification was heard and denied on the second date set for sentencing. At that point, the judge gave the defendant the option of withdrawing his guilty plea and standing trial for aggravated robbery. The defendant elected to accept the benefits of his plea bargain, and sentence was imposed.5 Thereafter, we issued a rule to show cause to determine whether the trial court abused its discretion when it denied the defendant’s motion to disqualify the judge.

There is nothing in the statute or rule regarding disqualification of judge which states that facts learned by the judge in the course of judicial proceedings establish prejudice. Section 16-6-201(l)(d), C.R.S.1973 (1978 Repl.Vol. 8); Crim.P. 21(b)(l)(IV). To the contrary, any opinions formed for or against a party from evidence or conduct occurring before a judge in a judicial proceeding, and the judge’s expressions of an opinion do not constitute the “prejudice” required to disqualify the judge under the statute and rule. See generally, Mirra v. United States, 379 F.2d 782 (2d Cir. 1967). See also, Wolfson v. Palmieri, 396 F.2d 121 (2d Cir. 1968).

In this case, the issue of guilt had been determined, and the judge’s function was to impose an appropriate sentence. See generally, Gregg v. United States, 394 U.S. 489, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969). The judge formed his opinion as to the defendant’s likelihood of carrying out his threats on the basis of the presentence investigation report. The judge’s comments did not show prejudice against the defendant, but rather evidenced his interpretation of the defendant’s propensity for violence based upon information learned in the course of judicial proceedings. The defendant’s propensity for violence is a factor which the judge was entitled to consider in imposing sentence.

Practical considerations also forced the trial judge to deny the motion. To allow threats towards a judge to cause compulsory recusal would enable a defendant to use vulgarity and threats to disqualify every judge that did not measure up to his own particular specifications or requirements. Compare, Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Such a result is not contemplated by either the statute or rule.

Accordingly, I would discharge the rule to show cause.

Justice DUBOFSKY has authorized me to announce that she joins me in this special concurrence.

. Since the issue of guilt was determined, the propriety of the judge reading the presentence investigation report is not in issue. Gregg v. United States, 394 U.S. 489, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969). Section 16-11-102, C.R.S. 1973 (1978 Repl.Vol. 8) requires:

“Following the return of a verdict of guilty of a felony, other than a class 1 felony, or a finding of guilt on such charge where the issues were tried to the court, or on a plea of guilty or nolo contendere to such a charge, or upon order of the court in any misdemeanor conviction, the probation officer shall make an investigation and written report to the court before the imposition of sentence. . . . ”

. The deputy included the incident in a report *1059which was subsequently included in the presen-tence investigation report.

.The American Bar Association Standards for Criminal Justice 18-5.4 (2d ed. 1980) state that: “The substance of all derogatory information which has not otherwise been disclosed in open court should be called to the attention of the defendant and defense attorney in a form sufficient to give an adequate opportunity for rebuttal.”

See also, section 16-11-102, C.R.S.1973. Crim.P. 32(a)(2).

. There is no record of the colloquy which occurred between the trial judge and defense counsel in the judge’s chambers.

. The defendant was sentenced to a term of two and one-half years. This term is within the presumptive range of possible penalties for the commission of a class 4 felony, such as robbery. Section 18-l-105(l)(a), C.R.S.1973 (1978 Repl.Vol. 8) (1980 Supp.).