STATE v PARKER
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No. 12198 I N THE SUPREME C U T O T E STATE O MONTANA OR F H F 1973 THE STATE O M N A A F OTN, P l a i n t i f f and Respondent, -vs - A T N MAURICE PARKER, LO Defendant and Appellant. Appeal from: District Court of t h e Fourth J u d i c i a l D i s t r i c t , Honorable E. Gardner Brownlee, Judge p r e s i d i n g . Counsel of Record: For Appellant : W e D. H i r s t argued, Missoula, Montana James S a d l e r argued, Missoula , Montana For Respondent: Hon. Robert L. Woodahl, Attorney General, Helena, Montana J . C. Weingartner, A s s i s t a n t Attorney General, appeared, Helena, Montana Robert L. Deschamps, County Attorney, argued, Missoula, Montana Submitted: January 26, 1973 Decided : FEB 2 1 1973 M. Chief J u s t i c e James T. Harrison delivered t h e Opinion of the Court. r This is an appeal by Alton Maurice Parker from h i s conviction of armed robbery and a s s a u l t i n Missoula County. H was found g u i l t y by a e jury of seven counts of robbery and one count of a s s a u l t . The issue presented i n this case i s whether t h e denial of appell a n t ' s motion f o r s u b s t i t u t i o n of judge was an abuse of discretion and a denial of due process of law. The appellant was charged with t h e commission of an armed robbery a t a bar i n Mill town, Montana, on December 26, 1970, and an information was f i l e d on July 12, 1971. Counsel was appointed f o r t h e appellant on July 30, 1971, and he was arraigned on an amended information on August 30, 1971. The t r i a l of the cause was s e t down a s t h e fourth case of the week s t a r t i n g September 13, 1971. This s e t t i n g was l a t e r changed t o t h e f i r s t case of the week of September 13, 1971. Through the operation of local d i s t r i c t court r u l e s the case was f i r s t assigned t o Judge Glore i n Department 1. On September 7, 1971, a motion f o r s u b s t i t u t i o n of judge was f i l e d on behalf of appellant. filed. The following day an amended motion was The amendment pointed out t h a t t h e motion was made pursuant t o section 95-1709(a), R.C.M. 1947, which reads: "The defendant or the prosecution may move t h e court in writing f o r a s u b s t i t u t i o n of judge on t h e ground t h a t he cannot have a f a i r and impartial hearing or t r i a l before said judge. The motion shall be made a t l e a s t f i f t e e n (15) days prior t o the t r i a l of the case, o r any r e t r i a l thereof a f t e r appeal , except f o r good cause shown. * * *" On September 13, 1971, Judge Glore stepped down from the case. The record is n o t c l e a r but i t appears from the order signed by Judge Brownlee on September 13, t h a t Judge Glore removed himself because of t h e motion. There has been some question raised as t o t h i s motion i n regard t o i t s timeliness. There was no objection raised t o i t i n the d i s t r i c t court and from t h e order mentioned above i t appears t o have been treated a s timely by the d i s t r i c t court. However, we take no position on i t i n t h i s opinion. On September 13, 1971, the motion which i s t h e subject of this appeal was f i l e d . This motion asked f o r the s u b s t i t u t i o n of Judge Brownlee f o r cause under section 95-1709(b), which reads: "In addition t o the provision of subsection ( a ) any defendant may move a t any time f o r substitution of judge f o r cause, supported by a f f i d a v i t . Upon the f i l i n g of such motion the court shall conduct a hearing and determine the merits of the motion." The motion was supported by an a f f i d a v i t of appellant alleging he could not receive a f a i r t r i a l from Judge Brownlee because of a dispute between appellant and Judge Brownlee over c r e d i t f o r j a i l time in a prior sentencing. A hearing was held upon the motion as required by the s t a t u t e . hearing testimony from appellant was presented, A t this Judge Brownlee denied the motion and the case went t o t r i a l . W will f i r s t deal with whether i t was an abuse of discretion for e the d i s t r i c t court t o deny the motion. There i s nothing in the record which would indicate t o t h i s Court any other decision could have been made and t h i s Court has held repeatedly that i t will not substitute i t s judgment f o r t h a t of the t r i a l court unless there i s clear showing t h a t the evidence or circumstances require the opposite. Counsel for appel 1ant argues the holding of the hearing on his own prejudice by Judge Brownlee, the prior sentencing of appellant by Judge Brownlee, and denial of a recess t o allow counsel for appellant t o commence an original proceeding in this Court a r e a l l indications of an abuse of discretion. The f a c t that appellant's counsel was not allowed to seek a writ of supervisory control would not be an abuse of discretion as appellant has a remedy by appeal and was not prejudiced by denial of the recess. W turn then t o the question of whether the denial of the motion e was a violation of due process of law. the issue on t h i s point. Appellant has not clearly framed I t i s d i f f i c u l t t o determine i f he i s arguing t h a t the s t a t u t e i s unconstitutional or i f the action of the judge applied the s t a t u t e unconstitutionally to appellant. The question of whether the s t a t - ute is constitutional i s not properly before t h i s Court and w take no e position in respect t o the question other than t o apply the presumption of constitutionality which attaches t o a l l s t a t u t e s coming before t h i s Court. H a r r i s o n v. City o f Missoula, 146 Mont. 420, 425, 407 P.2d 703. A p p e l l a n t urges t h i s Court t o take t h e view t h a t Judge Brownlee's a c t i o n o f denying t h e motion was a d e n i a l o f due process because he had p r e v i o u s l y sentenced a p p e l l a n t and i n t h a t sentencing a d i s p u t e had a r i s e n over t h e amount o f j a i l time a p p e l l a n t was t o be c r e d i t e d w i t h . no e r r o r i n what was done. W find e A s - f a r as t h e c o n t e n t i o n t h a t t h i s i s a v i o - l a t i o n o f due process. t h e r e has been no showing o f p r e j u d i c e by a p p e l l a n t . I t i s n o t enough t o c l a i m a v i o l a t i o n o f c o n s t i t u t i o n a l r i g h t s ; t h e r e must be some a f f i r m a t i v e showing o f harm as w e l l . There i s a l i n e o f f e d e r a l cases a l l h o l d i n g t h a t i t i s n o t s u f f i c i e n t reason t o remove a judge j u s t because t h a t same judge has presided i n m a t t e r s t o which t h e p a r t y was bef o r e t h e judge p r e v i o u s l y . I n a case i n v o l v i n g a c r i m i n a l prosecution f o r income t a x evasion t h e c o u r t o f appeals h e l d i n U n i t e d States v . D i c h i a r i n t e , 445 F.2d 126, 132 ( 7 t h C i r . 1971): " * * * The d e n i a l o f t h e motion t o recuse was n o t e r r o r . The f a c t t h a t t h e judge m i g h t have formed an o p i n i o n concerning t h e g u i l t o r innocence o f t h e defendant from t h e evidence presented a t an e a r l i e r t r i a l i n v o l v i n g t h e same person i s n o t t h e k i n d o f b i a s o r p r e j u d i c e which requires disqualification." The n i n t h c i r c u i t c o u r t o f appeals i n Westover v. U n i t e d States, 394 F.2d 164-166 ( 9 t h C i r . 1968), a case i n v o l v i n g t h e robbery o f a savings and l o a n a s s o c i a t i o n held: "We f i n d no e r r o r i n t h e a c t i o n of t h e l a t e D i s t r i c t Judge W i l l i a m C, Mathes i n denying t h e motion t o d i s q u a l i f y t h e t r i a l judge who t r i e d both t h e f i r s t and second Westover cases. And, we f i n d no e r r o r i n ' t h e l a t t e r ' s f a i l u r e t o recuse himself." The same r u l e , c i t e d i n Barnes v. United States, 241 F.2d 252, 254 ( 9 t h C i r . 1956), holds t r u e f o r t h e c i v i l cases as we1 1 : " * * * The conduct o f t h e t r i a l judge and h i s r u l i n g s i n a former case a r e n o t t h e b a s i s f o r d i s q u a l i f i c a t i o n here. A l l o f t h e r u l i n g s i n former cases, as w e l l as t h e a t t i tude o f t h e judge, c o u l d have been r a i s e d upon appeal i n such cases. Because a judge has decided one case a g a i n s t a l i t i g a n t i s no reason why he cannot s i t i n another." Turning now t o t h e question o f whether t h e h o l d i n g of t h e hearing by Judge Brownlee on t h e question o f h i s own b i a s was a v i o l a t i o n o f due process t h e a p p e l l a n t argues: "The purpose o f such a hearing i s t o l e t an o b j e c t i v e mind weigh t h e m e r i t s o f t h e s i t u a t i o n . Can one h a r b o r i n g p r e j u d i c e e x e r c i s e o b j e c t i v e judgment? Human experience would seem t o d i c t a t e t h a t t h e human mind, no m a t t e r how w e l l d i s c i p l i n e d , cannot render an i m p a r t i a l judgment when p r e j u d i c e e x i s t s . The whole idea behind s u b s t i t u t i n g a judge a l l e g e d t o be biased o r p r e j u d i c e d i s t o d i s q u a l i f y him because he i s n o t thought capable o f rendering an i m p a r t i a l judgment. Having t h e judge who i s accused o f p r e j u d i c e conduct t h e hearing i s a k i n t o begging t h e question. Despite a l l outward appearances o f o b j e c t i v i t y , a p r e j u d i c e d mind i s f i l l e d w i t h p r e d i l e c t i o n , i n c l i n a t i o n and biased o p i n i o n even though i t may be unconscious." A p p e l l a n t f a i l s t o c i t e any a u t h o r i t y t o support t h i s argument. Again a p p e l l a n t makes no showing o f any p r e j u d i c e by going t o t r i a l b e f o r e Judge Brownlee, o n l y t h e bare a s s e r t i o n o f a v i o l a t i o n o f due process. I n fact, a p p e l l a n t ' s counsel d u r i n g o r a l argument b e f o r e t h i s Court s t a t e d i n h i s opinion the appellant received a very f a i r t r i a l . The complete t r a n s c r i p t i s n o t b e f o r e t h i s Court so we a r e unable t o r e v i e w i t f o r any p o s s i b l e e r r o r s which would show how t h e a p p e l l a n t was harmed. The f a c t Judge Brownlee presided a t t h e h e a r i n g would n o t be e r r o r i n our judgment. 28 U.S.C. Looking a t t h e f e d e r a l j u r i s d i c t i o n under t h e i r s t a t u t e 144, t h e judge has a d u t y t o r e v i e w t h e motion t o determine whether o r n o t t o recuse h i m s e l f . I n Hodgson v. L i q u o r Salesmen's U. Loc. No. 2 o f S t a t e o f N.Y., 444 F.2d 1344, 1348 (2nd C i r . 1971) i t i s s t a t e d : "However, t h e t r i a l judge must a t t h e o u t s e t determine whether t h e f a c t s so s t a t e d would c o n s t i t u t e l e g a l l y s u f f i c i e n t grounds f o r r e c u s a l , ( c i t a t i o n s o m i t t e d ) , and i f t h e a f f i d a v i t i s i n s u f f i c i e n t , he i s under j u s t as much o f a d u t y t o deny t h e a p p l i c a t i o n as he would be t o recuse h i m s e l f i f i t were s u f f i c i e n t . " Our code p r o v i s i o n was taken from t h e I l l i n o i s Code o f C r i m i n a l Procedure. I 1 1 .Rev.Stat. Ch. 38, g 114-5(c). Under t h e I l l i n o i s cases t h e c o u r t s have construed t h e s t a t u t e as a l l o w i n g t h e t r i a l c o u r t judge t o cond u c t t h e hearing. The a p p e l l a t e c o u r t o f I l l i n o i s i n r e v i e w i n g a t h e f t con- v i c t i o n h e l d i n People v . Arnold, 76 111.App.2d 269, 222 N.E.2d 160, 164: "Section 114-5(c), supra, then provides t h e t r i a l 'udqe s h a l l conduct a h e a r i n c ~ o determine t G r i t s t i f t h e p e t i t i o n . " (Emphasi s suppl ied) . Therefore, i t i s the o p i n i o n o f due process o f law and t h e conv W concur: e ~ s b o c i a t eJ u s t i c e s /
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