State v. Carter

 
 
                                ENTRY ORDER
 
                      SUPREME COURT DOCKET NO. 89-501
 
                     MAY TERM, 1990
 
 
State of Vermont                  }          APPEALED FROM:
                                  }
                                  }
     v.                           }          Addison Superior Court
                                  }
                                  }
Merrill J. Carter                 }          DOCKET NO. S61-88Acr
 
 
             In the above entitled cause the Clerk will enter:
 
     Defendant argues that the trial court erred by denying defendant's
motion to disqualify an assistant judge from the sentencing hearing.  We
disagree.
 
     V.R.Cr.P. 50(d)(2) requires that an affidavit or a certificate of the
movant's attorney accompany the motion to disqualify and state the reason
therefor, and when such reason first became known.  Defendant failed to
provide the court with the requisite affidavit or certificate.  This
failure alone would warrant dismissal of the motion to disqualify.  V.R.Cr.P
50(d)(1).
 
     A judge must disqualify himself whenever a doubt of impartiality would
exist in the mind of a reasonable disinterested observer.  See Code of
Judicial Conduct, A.O. 10, Canon 3(C)(1); Richard v. Richard, 146 Vt. 286,
288, 501 A.2d 1190, 1191 (1985).  However, motions that lack foundation
should be denied.  Id.  To maintain a colorable claim of judicial
disqualification, the moving party must affirmatively and clearly show bias
or prejudice directed against him.  Cliche v. Fair, 145 Vt. 258, 261-62, 487 A.2d 145, 148 (1984).  Defendant's motion consisted only of innuendo and
unsubstantiated suspicion and therefore lacked the foundation necessary to
justify recusal.  We also reject defendant's contention that court erred in
considering the knifing allegation in sentencing defendant for simple
assault.  Absent an objection to any part of the sentencing or to the facts
contained in the presentence report, defendant can only obtain a reversal
upon a showing of plain error.  See In re Pernicka, 144 Vt. 319, 322, 478 A.2d 224, 226 (1984).  Examination of the presentence report and the record
indicates that, in sentencing defendant, the judge did not consider
defendant's alleged knifing of the victim in the back.  The judge referred
to the victim's head and stomach pain, injuries which stemmed from his being
struck with a bottle and kicked by defendant.  There was no error.
 
     Affirmed.
 
 
 
 
 
 
                                   BY THE COURT:
 
 
 
 
                                   Frederic W. Allen, Chief Justice
 
 
                                   Louis P. Peck, Associate Justice
 
 
[ ]  Publish                       Ernest W. Gibson III, Associate Justice
 
[ ]  Do Not Publish
                                   John A. Dooley, Associate Justice
 
 
                                   James L. Morse, Associate Justice