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

LOHR, Justice,

dissenting:

The majority holds that the verified motion and supporting affidavits in this matter do not state facts showing grounds for disqualification of the trial judge. I respectfully dissent.

Section 16-6-201, C.R.S.1973 (1978 Repl. Vol. 8), states, in pertinent part:

“(1) A judge of a court of record shall be disqualified to hear or try a case if:
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*1060(d) He is in any way interested or prejudiced with respect to the case, the parties, or counsel.”

See also Crim.P. 21(b)(l)(IV).

Upon filing an appropriate verified motion and supporting affidavits which “state facts showing grounds for disqualification, the judge must enter an order disqualifying himself.” (Emphasis added.) Section 16-6-201(3), C.R.S.1973 (1978 Repl.Vol. 8). The only question here is whether the motion and affidavits state facts showing grounds for disqualification, i. e., that the judge is in any way prejudiced with respect to the case or the defendant.

The verified motion states in pertinent part:

“1. On April 25, 1980, defendant was present in Court for sentencing, at which time his counsel requested a continuance of two weeks.
“2. Upon leaving the courtroom, the defendant was overheard by Deputy Sheriff Richard D. Thomas stating, in a hostile tone, ‘That senile old motherfucker, he ought to be shot. I’ll kill him.’ The reference was to Judge Hardeman.
“3. Said information was relayed by Deputy Thomas to the Court the same day.
“4. Deputy Thomas, later the same day, overheard the defendant say to another inmate, ‘I’ll shoot the motherfucker. His day is coming — maybe sooner than he thinks.’
“5. The Court contacted defendant’s attorney later the same day and informed him of what had occurred, adding, T think he would do it.’ ”

The supporting affidavits tend to corroborate the statements in the motion and supply no additional material facts.

The facts alleged in the verified motion and affidavits must be accepted as true, People v. Botham, Colo., 629 P.2d 589 (1981); Carr v. Barnes, 196 Colo. 70, 580 P.2d 803 (1978); Walker v. People, 126 Colo. 135, 248 P.2d 287 (1952); People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915). The test to be applied to determine the sufficiency of the averred facts is whether therefrom: “it may reasonably be inferred that the respondent judge has a bias or prejudice that will in all probability prevent him or her from dealing fairly with the petitioner.” Carr v. Barnes, supra, 196 Colo. 503, 560 P.2d 828 (1977); Walker v. People, supra; People ex rel. Burke v. District Court, supra. Whether the facts alleged constitute legally adequate grounds for disqualification is a question of law, Carr v. Barnes, supra.

Where, as here, prior to sentencing the defendant has twice threatened the life of the sentencing judge and the judge has expressed the opinion that he thinks the defendant would carry out the threats, I would hold that it may reasonably be inferred that the judge has a bias that will in all probability prevent him from dealing fairly with the defendant.

Additionally, what we said in People v. District Court, supra, is applicable here:

“Beyond the technical legal ground supporting disqualification, this is clearly a case where the appearance of possible prejudice dictates disqualification. Because appearances can be as damaging to public confidence in the courts as actual bias or prejudice, a trial judge must scrupulously avoid any appearance of bias or prejudice. Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 89 S.Ct. 337, 21 L.Ed.2d 301 (1958). He ‘should recuse himself whenever ... he believes his impartiality can reasonably be questioned.’ A.B.A. Standards, The Function of the Trial Judge, 1.7.”

Id. 192 Colo. at 510, 560 P.2d at 833. See People v. Botham, supra. The sentencing of a defendant by a judge whose life has recently been threatened by that defendant creates an undeniable appearance of possible prejudice damaging to public confidence in the courts.

I would make the rule absolute.