Voss v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ann M. Sutton Steve Carter
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Stephen R. Creason
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________

In the
Indiana Supreme Court
_________________________________

No. 49S00-0510-CR-477

JEFFREY VOSS, Appellant (Defendant below),

V.

STATE OF INDIANA, Appellee (Plaintiff below).

_________________________________

Interlocutory Appeal
from the Marion Superior Court No. 49G02-0412-MR-232452
Hon. Judges Robert R. Altice, Jeffrey V. Boles, and Grant W. Hawkins
_________________________________

November 22, 2006

Dickson, Justice.

Defendant Jeffrey Voss, charged with murder and facing the State's request for the death
penalty, challenges proceedings culminating in a change from the judge originally assigned to
this case. This interlocutory appeal is brought pursuant to the trial court's unrestricted grant of
the defendant's request for certification of an interlocutory appeal on the following issues:
"whether the State's submission was adequate as a matter of law to challenge the bias of the
judge; whether a special judge may be appointed, over objection, to decide the recusal of a judge;
and whether the finding of recusal by the special judge was sufficient as a matter of law."
Appellant's App'x. at 224. We find both that the State's motion for change of judge was
insufficient and that it was error to appoint a special judge to decide the motion.
 On January 4, 2005, the State charged the defendant with the strangulation murder of
twelve-year-old Christina Tedder, three counts of criminal confinement of her, and one count of
obstruction of justice. The case was assigned to Marion Superior Court Criminal Division,
Room Five, Judge Grant W. Hawkins presiding. At the initial hearing the next day, a "prelimi-
nary plea" of not guilty was entered for the defendant. Id. at 6. The State filed an amended in-
formation on March 10, reasserting the initial counts and additionally charging that the defendant
had committed child molestation against Christina. An initial hearing on the amended informa-
tion was scheduled for March 18, 2005. When the State filed the amended information, it also
filed its request for the death penalty, alleging that the defendant intentionally killed Christina
while on probation relating to the defendant's 1991 conviction for class B felony robbery. Thir-
teen days later, the State, citing Indiana Criminal Rule 12(B), filed a motion requesting that
Judge Hawkins "remove and disqualify himself as judge" or, in the alternative, that the case "be
transferred to another judge to hold an evidentiary hearing and rule upon the instant motion." Id.
at 135-36. This motion was initially heard by Judge Pro Tempore Ralph W. Staples, Jr., who,
citing Indiana Trial Rule 79(C) and the comment to Indiana Code of Judicial Conduct Canon 1,
declined to rule, noting that he "became aware of media accounts . . . that appear to call into
question the Court's [here, Judge Pro Tempore Staples] continued ability to provide the parties
with the fundamental fairness before the tribunal that is required by law." Id. at 163. To illus-
trate, Judge Staples appended a web page news report by Eric Berman, Judge Could Be Removed
from Death Penalty Case, 1070 WIBC—WIBC.com, April 9, 2005, reporting that "[t]o hear the
motion, Hawkins appointed . . . Ralph Staples, who clashed with [the Marion County Prosecutor]
before leaving the office this year." Id. at 165. In his entry, Judge Staples requested that Judge
Hawkins "select a different jurist to rule" upon the motion. Id. at 166. Following another re-
quest by the State for Judge Hawkins to transfer its recusal motion to another judge, 1 Judge
Hawkins issued an order reviewing the circumstances of the ruling by Judge Staples; expressing
the desire that the motion be determined by "a jurist who has been willing to impose the death
penalty and is not politically or socially associated with the Court, the Office of the Marion

1
Although the trial court authorized the defendant to file any objections by April 22, 2005, the
defense did not respond until April 28 when it tendered its response along with a motion for leave for be-
lated filing. Appellant's App'x. at 186. The trial court denied the motion as moot, noting that its order of
determination had already been dictated. Id.

2
County Prosecutor or either counsel for the defense;" and appointing Hendricks Circuit Court
Judge Jeffrey V. Boles to decide the recusal motion. Id. at 191-94. On May 26, 2005, after a
review of the documents and transcripts, Judge Boles directed that the case be reassigned "on a
random basis to a Marion Superior Criminal Divison G Court 1, 2, 3, 4, 6, or 20." Id. at 211.
The case was then assigned to Room G02, Judge Robert Altice presiding. On July 21, 2005,
Judge Altice granted the defendant's June 27, 2005, motion for a stay in the trial court proceed-
ings and for interlocutory appeal certification. As required by Indiana Appellate Rule 14(B)(2),
the defendant then petitioned for appellate acceptance of the interlocutory appeal, and he then
requested that this Court assume expedited appellate jurisdiction under Indiana Appellate Rule
56(A) to address the interlocutory appeal. We granted these requests.

This interlocutory appeal raises three issues: (1) the adequacy of the State's submission
seeking a change of judge; (2) the propriety of appointing a special judge to rule upon a change
of judge request; and (3) the legal sufficiency of the ruling by Judge Boles reassigning the case
from Judge Hawkins.

1. Adequacy of the State's submission challenging bias of the judge

The relevant grounds applicable to requests for changes of judge in Indiana criminal
cases are set forth in Indiana Criminal Rule 12, section (B), which provides as follows:

(B) Change of Judge—Felony and Misdemeanor Cases. In felony and mis-
demeanor cases, the state or defendant may request a change of judge for bias or preju-
dice. The party shall timely file an affidavit that the judge has a personal bias or preju-
dice 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.

Adjudicating a request for change of judge based on Rule 12(B) requires an objective, not
subjective, legal determination by the judge, who is "to examine the affidavit, treat the facts re-
cited in the affidavit as true, and determine whether these facts support a rational inference of

3
bias or prejudice." Sturgeon v. State, 719 N.E.2d 1173, 1181 (Ind. 1999). This version of Rule
12 contrasts with the former provisions of Rule 12, which required a party seeking a change of
judge to establish actual personal bias. Id. 2 Under the present rule:
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 in-
stead determine whether the historical facts presented in support of the motion lead to a
rational inference of bias or prejudice.
Allen v. State, 737 N.E.2d 741, 743 (Ind. 2000). A change of judge is neither automatic nor dis-
cretionary, but rather requires the trial judge to make a legal determination, not a self-analysis, of
actual bias or prejudice. Sturgeon, 719 N.E.2d at 1181; Allen, 737 N.E.2d at 743.

The State's motion seeking the removal of Judge Hawkins was accompanied by a sepa-
rate affidavit and a certificate of good faith, each executed by the Marion County Prosecutor, and
also a brief in support of the motion. In its motion, the State asserted its belief that Judge Haw-
kins "is biased or prejudiced against the death penalty statute" and "biased or prejudiced against
the State of Indiana in this death penalty prosecution," and asserted facts in its motion and affi-
davit as support for its claim. Appellant's App'x. at 136. The accompanying affidavit asserted
specific prior decisions in which Judge Hawkins had ruled that the death penalty was unconstitu-
tional (although his rulings were later reversed); several media quotations of remarks by Judge
Hawkins that the affidavit characterizes as critical of the death penalty; and instances of specific

2
The current version of Rule 12(B) was amended effective February 1, 1995, and the previous version,
contained within an undivided version of Rule 12, stated, in relevant part:

[I]f the applicant first obtains knowledge of the cause for change of venue from the judge
or from the county after the time above limited, he may file the application, which shall
be verified by the party himself specifically alleging when the cause was first discovered,
how it was discovered, the facts showing the cause for a change, and why such cause
could not have been discovered before by the exercise of due diligence. Any opposing
party shall have the right to file counter-affidavits on such issue within ten [10] days, and
after a hearing on the motion, the ruling of the court may be reviewed only for abuse of
discretion.

Ind. Crim. Rule 12 (1994).

4
conduct by Judge Hawkins before he became a judge, when he was representing criminal defen-
dants facing the death penalty. Id. at 132-34.

a. Judge’s prior rulings

The State first points to three prior orders by Judge Hawkins, each ruling that the Indiana
death penalty statute is unconstitutional. On September 10, 2001, Judge Hawkins granted
defendant Charles E. Barker's motion to dismiss the death penalty, finding Indiana's death
penalty statute unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.
2348, 147 L.Ed.2d 435 (2000), which was decided while Barker's case was on appeal. This
Court reversed the trial court's order in a decision that referenced Saylor v. State, 765 N.E.2d 535
(Ind. 2002), a case this Court had decided about one month earlier that had also raised the
constitutionality of Indiana's death penalty statute in light of the Apprendi decision. State v.
Barker, 768 N.E.2d 425, 426 (Ind. 2002). Judge Hawkins again found the Indiana death penalty
statute unconstitutional in Barker and Ben-Yisaryl—two nearly identical orders both dated June
27, 2003 3 —in light of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002),
and both of which this Court reversed in companion cases dated May 25, 2004. State v. Barker,
809 N.E.2d 312, 318-19 (Ind. 2004); State v. Ben-Yisaryl, 809 N.E.2d 309, 311 (Ind. 2004).

Prior judicial rulings generally do not support a rational inference of prejudice. Garland
v. State, 788 N.E.2d 425, 433 (Ind. 2003). Adverse rulings and findings by a trial judge from
past proceedings with respect to a particular party are generally not sufficient reasons to believe
the judge has a personal bias or prejudice. Lasley v. State, 510 N.E.2d 1340, 1342 (Ind. 1987);
Thomas v. State, 486 N.E.2d 531, 533 (Ind. 1985). The mere assertion that certain adverse
rulings by a judge constitute bias and prejudice does not establish the requisite showing. Ware v.
State, 567 N.E.2d 803, 806 (Ind. 1991).

Of course, there may be circumstances in which a rational inference of prejudice may be
established from a judge’s prior orders if the orders are sufficiently egregious; for example, if a
judge on numerous occasions, and in the absence of a good faith judicial basis, repeatedly avoids

3
Marion Superior Court cause numbers 49G05-9308-CF-095544 and CR84-076E.

5
or refuses to permit the State to properly seek a death penalty. Such circumstances, however, are
not established by the State’s affidavit in the present case.

Although the cited death penalty decisions of Judge Hawkins were reversed on appeal,
his decisions in each were supported by reasonable legal argument and the applicable law was
subject to a good faith difference of opinion at the time.

b. Judge’s public comments

The State’s second allegation of bias is based on statements attributed to Judge Hawkins
by the Indiana Lawyer, a bi-weekly newspaper serving the Indiana legal community. Following
his ruling in Barker in 2001, Judge Hawkins was interviewed by a reporter whose resulting
article quoted him as stating, in pertinent part:
[T]he death penalty has to be done perfectly every time and that’s impossible right now.
Innocent people are getting it, look at Illinois, Judge Hawkins said. You have to revisit
the death penalty to see if people still want it. Records show that 74 percent of people
believe in it. But with life without parole, 80 percent of the people like it.

Appellant’s App'x. at 132.

The relevant inquiry under Rule 12(B) is whether such public comment supports a
rational inference of bias or prejudice. We think not. Judges are encouraged “to speak and
participate in extra-judicial activities ‘concerning the law, the legal system, the administration of
justice, and non-legal subjects,’” and such participation is a “valuable component of the public
service provided by the judiciary.” Allen, 737 N.E.2d at 744 (quoting Ind. Judicial Conduct
Canon 4(B)) (rejecting a claim that the defendant, on trial for battery, criminal confinement and
intimidation of his estranged wife, was entitled to a change of the judge based upon the judge’s
appearance and participation with organizations seeking to assist victims of domestic violence).

Citizens who serve as judges are likely to have personal opinions and values with respect to a
variety of legal and social issues. But, as judges, they are required to “be faithful to the law” and
“not be swayed by partisan interests.” Indiana Judicial Canon 3(B)(2). The fact that a judge
may have a personal opinion regarding an issue in a case does not, standing alone, create a

6
rational inference that the judge’s decision will be governed by bias and prejudice. To the
contrary, we presume that judges will set aside their personal values and opinions and will
impartially follow the law. We recognize that situations may occur wherein the nature or content
of a judge's public expressions of personal opinion may strongly suggest that the judge may be
unable or unwilling to set aside personal opinion in judicial decision-making. Such
circumstances would support a rational inference of bias or prejudice, requiring the judge to
disqualify from the case.

The comments attributed to Judge Hawkins reflect his concern regarding the necessity for
extreme care in judicial administration of death penalty cases, but they do not indicate or suggest
that he would hesitate to fully follow the law and impose a sentence of death where appropriate.

c. Judge’s prior clients as lawyer

As for the State’s final allegation, the public record shows that before joining the bench
Judge Hawkins represented three defendants accused of capital crimes, two of whom ultimately
received a death sentence. According to the State, Judge Hawkins later testified that his
“representation in those death penalty cases was ineffective.” Appellant’s App'x. at 133. This
allegation sheds no light on the question of alleged bias or prejudice on the part of Judge
Hawkins against the State. And the State cites no authority in support. Rather, in its brief, the
State contends that “[t]hese facts, while perhaps not supporting a rational inference of bias or
prejudice on their own, properly support such an inference when considered along with Judge
Hawkins’s actions and statements since taking the bench.” Appellee's Br. at 9. We disagree.

A lawyer’s representation of criminal defendants facing the death penalty does not
provide a rational inference that the lawyer, if subsequently serving as a judge, will be biased or
prejudiced in cases involving the death penalty. Cf. Broome v. State, 687 N.E.2d 590, 596-97
(Ind. Ct. App. 1997) (finding a trial judge's previous service as the county prosecutor and hiring

7
and training of the prosecutor in defendant’s case did not establish judge’s bias or prejudice),
summarily aff'd in part, aff'd on other grounds in part, 694 N.E.2d 280 (Ind. 1998).

We conclude, as a matter of law, that the historical facts recited in the affidavit do not
support a rational inference of bias or prejudice, and thus the State's submission was inadequate
to support a change of judge under Criminal Rule 12(B).

2. Appointment of special judge to decide recusal

The defendant contends that it was improper to appoint Judge Boles or any other judge as
a special judge to decide the State's motion for change of judge. The defendant argues that such
an appointment is not authorized by statute or rule, that it causes unnecessary delay, and that the
sitting judge is in the best position to evaluate the merits of the motion. The State responds that
current law permits, but does not compel, a sitting judge to rule on a motion for a change of
judge. The State also argues that Judge Hawkins did not appoint Judge Boles as a "special
judge" but rather as a "hearing judge," equivalent to "appointing an out-of-county attorney as
judge pro tempore." Appellee's Br. at 15.

We initially note that Judge Hawkins did not reassign the case to Judge Boles nor appoint
him either as a special judge or a judge pro tempore. Rather, he ordered that the case "be trans-
ferred" to Judge Boles "for resolution of the recusal issue raised by the State." Appellant's Ap-
p'x. at 194. The reassignment of cases and the selection of special judges in criminal cases is
governed by Criminal Rule 13, which contemplates that the successor judge will preside over all
further proceedings in a case. Such an appointment is not a temporary appointment for the reso-
lution of a single issue, but operates to transfer all future handling of the case to the new judge.
Judge Hawkins did not purport to appoint Judge Boles as a special judge pursuant to Rule 13.

Likewise, Judge Hawkins did not intend to appoint Judge Boles as a judge pro tempore.
The order purported to transfer the case to Judge Boles "for resolution of the recusal issue," id. at

8
194, and not because Judge Hawkins was "unable to attend and preside at his court for any
cause," the only basis for a judge pro tempore appointment under Indiana Trial Rule 63(E). 4

The required determination—whether the asserted facts, treated as true, support a rational
inference of bias or prejudice—is the type of evaluation that judges do frequently in the ordinary
course of their work. Sound judicial policy does not require this decision to be made by a person
other than the sitting judge. 5 We hold that it was improper for the trial court to appoint another
judge to rule on the Criminal Rule 12(B) motion in this case. 6

3. Disqualification under the Code of Judicial Conduct

While holding that the State's motion for change of judge is inadequate under Criminal
Rule 12(B), we make no determination regarding whether Judge Hawkins should nevertheless
disqualify himself in this case. A judge must "perform judicial duties without bias or prejudice."
Jud. Canon 3(B)(5). Irrespective of whether a request for change of judge under Criminal Rule
12(B) was filed, Judge Hawkins has the same continuing obligation as every other Indiana judge
to sua sponte disqualify himself "in a proceeding in which the judge's impartiality might rea-
sonably be questioned." Jud. Canon 3(E)(1). This includes, but is not limited to, instances
where "the judge has a personal bias or prejudice concerning a party or a party's lawyer." Jud.

4
Temporary judges appointed by circuit, superior, and county judges pursuant to Indiana Code §
33-38-11-1 "may serve even though the judge of the court is present and presiding in the court." Ind.
Code § 33-38-11-11. But each such temporary judge must be "a resident of the judicial district of the
court after the temporary judge's appointment." I.C. § 33-38-11-1(a)(2). It is undisputed that Judge
Boles, regular Judge of the Hendricks Circuit Court, is not a resident of Marion County.
5
We acknowledge that the federal court system requires that another judge preside over a pro-
ceeding when a party files an affidavit indicating personal bias or prejudice on the part of the judge:
Whenever a party to any proceeding in a district court makes and files a timely and sufficient af-
fidavit that the judge before whom the matter is pending has a personal bias or prejudice either
against him or in favor of any adverse party, such judge shall proceed no further therein, but an-
other judge shall be assigned to hear such proceeding.
28 U.S.C. § 144. We decline, however, to apply this practice to Indiana courts.
6
We recognize that in Broome, 687 N.E.2d at 596, the Court of Appeals observed in dicta that a
presiding judge "may, but need not, recuse himself when a hearing on the motion is necessary," possibly
implying approval for a temporary referral to another judge to decide one aspect of the case. While we
summarily affirmed this issue decided by the Court of Appeals, concluding that the trial judge properly
heard the motion for change of judge, 694 N.E.2d at 281, we now expressly disapprove of the implication
that an issue may be transferred to another judge to decide.

9
Canon 3(E)(1)(a). A judge's bias or prejudice with respect to a substantial issue in a case, even if
not directly related to a party or a party's lawyer, can equally impair impartiality and should
mandate disqualification.

In contrast to the process for ruling upon a Criminal Rule 12(B) motion for change of
judge (evaluating whether the historical facts recited in the affidavit support a rational inference
of bias or prejudice), Canon 3 requires a judge to consider a broad array of circumstances, not
merely assertions of historical fact set forth in an affidavit. A judge must of course disqualify
from a case upon realizing that the judge's own personal beliefs, values, or opinions are impair-
ing his or her impartiality. Further, Canon 3(E)(1) also requires a judge to disqualify when a
judge knows of facts or circumstances that might reasonably call into question the judge's impar-
tiality. This obligation to disqualify exists notwithstanding a judge's earnest, subjective belief
that he or she is fully able to perform judicial duties without bias or prejudice.

In his order purporting to transfer the State's motion for change of judge to Judge Boles
for decision, Judge Hawkins described the State's request as "a vehicle to request the judge
recuse himself based upon the Prosecutor's reading of the Commentary to Canon 3(E)(1) of the
Code of Judicial Conduct, the section speaking to judicial disqualification in proceedings where
the judge's impartiality might reasonably be questioned." Appellant's App'x. at 191-92. Citing
May v. State, 578 N.E.2d 716, 719 (Ind. Ct. App. 1991), trans. not sought, Judge Hawkins ex-
pressed his belief that the
best practice . . . would be for a different set of eyes to examine the State's assertions, ex-
amine the Criminal Rule upon which the assertion was founded, examine the Judicial
Canon invoked in the State's pleading, determine the applicability of the Criminal Rule
and the Judicial Canons to the evidence, and rule thereon.
Appellant's App'x. at 193 (emphasis added). For this purpose, Judge Hawkins initially named
Ralph Staples as Judge pro tempore, upon whose recusal he ordered the case "transferred" to
Judge Boles and explained:
Seeking a jurist who has been willing to impose the death penalty and is not po-
litically or socially associated with the Court, the Office of the Marion County Prosecutor
or either counsel for the defense leads the Court to again grant the State's request that an
alternate jurist determine the question of whether there is an appearance of impropriety.
Id. at 193-94 (emphasis added).

10
 The circumstances presented in May did involve a limited appointment of a special judge
to rule on May's motion for special judge. The special judge denied the motion and the regular
judge resumed handling of the case. But there was no challenge to this procedure. The question
presented was whether the limited special judge erred in denying the motion, not whether the
regular judge erred in naming a special judge to decide the motion. The Court of Appeals opin-
ion in May did not make any declaration of "best practice" or otherwise recommend or approve
the limited appointment of another judge to decide a single issue.

By his reference to the "Judicial Canons" and "appearance of impropriety," however, it is
apparent that Judge Hawkins intended the obligations imposed by the Code of Judicial Conduct
to be considered in conjunction with any ruling on the State's motion for change of judge. Such
consideration may involve a separate subjective determination that must be made personally by
the sitting judge. The issue under the Judicial Canons may provide an independent basis requir-
ing disqualification even if the analysis required for determination under Criminal Rule 12(B)
would not require a change of judge. Of course, disqualification would be necessary if a judge
personally recognizes that he or she is unwilling to impose the death penalty.

We also observe that such a determination under Canon 3(E)(1)(a) would not be appro-
priate for initial resolution by any judge other than the judge in question, who, considering facts
and circumstances known to the judge but not presented in the record, must evaluate not only the
actual effects of his or her own personal bias or prejudice, but also whether the judge's impartial-
ity might reasonably be questioned by others. Such an issue is not properly addressed by a judge
pro tempore. The determination of whether disqualification is necessary under Canon 3 must be
made by the sitting judge.

Conclusion

We vacate both the May 26, 2006, order of Judge Boles implicitly granting the State’s
motion for change of judge and ordering reassignment of this case to a different judge, and the
order of Judge Hawkins initially transferring the case to Judge Boles for ruling on the State’s

11
recusal motion. We remand this case to Judge Hawkins so that he may personally consider
whether to disqualify himself from the case if he deems it appropriate pursuant to Canon 3(E) of
the Code of Judicial Conduct, and for any further proceedings consistent with this opinion.

Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.

12