Allen v. State

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

James H. Voyles Jeffrey A. Modisett

Jennifer M. Lukemeyer Attorney General of Indiana

Symmes, Voyles, Zahn, Paul & Hogan

Indianapolis, Indiana Janet Brown Mallett

Indianapolis, Indiana

In The

INDIANA SUPREME COURT

DOUGLAS R. ALLEN, )

Defendant-Appellant, )

)

v. ) 75S05-0011-CR-623

)

STATE OF INDIANA, )

Plaintiff-Appellee. )

________________________________________________

APPEAL FROM THE STARKE CIRCUIT COURT

The Honorable David P. Matsey, Judge

Cause No. 75C01-9710-CF-089

________________________________________________

On Petition To Transfer

November 3, 2000

DICKSON, Justice

The defendant, Douglas R. Allen, was convicted of the October 5,

1997, battery,[1] criminal confinement,[2] and intimidation[3] of his

estranged wife. His convictions were affirmed by the Indiana Court of

Appeals. Allen v. State, 725 N.E.2d 472 (Ind. Ct. App. 2000). Seeking

transfer, the defendant contends that the Court of Appeals improperly

applied the test for reviewing whether the trial court should have granted

his motion for a change of judge. We grant transfer to address this issue,

summarily affirm the Court of Appeals as to the other issues, and affirm

the judgment of the trial court.

The defendant asserts that the trial court erred in denying his

motion for change of judge because there was a reasonable basis for

doubting the judge's impartiality due to the extra-judicial activities of

the judge and his wife with respect to the Starke County Coalition Against

Domestic Abuse. In support of his motion for change of judge the defendant

submitted his own affidavit, the historical facts of which were certified

as true by the separate affidavit of his attorney. The defendant's

affidavit stated, in part, as follows:

That contemporaneously with the defendant's voluntary surrender,

prior to the filing of any criminal charges herein and

contemporaneously with the defendant's preliminary court appearance .

. . there was occurring in Knox, Starke County, Indiana, significant

and substantial publicity and promotion, concerning a phoneathon . . .

designed to call the public's attention to and solicit donations for

the Starke County Coalition Against Domestic Abuse, said donations to

be used in the adaptation and or improvement of a Transitional House,

a site to be used as a haven for victims of domestic abuse.

That the president of the said Starke County Coalition Against

Domestic Abuse is Ruth Matsey, the wife of the regular Judge herein,

David Matsey.

The undersigned is informed and verily believes that at said

phoneathon . . . Judge David Matsey appeared and spoke, presumably in

support of the announced objectives and desires of the Starke County

Coalition Against Domestic Abuse, of which his wife Ruth Matsey is

president.

Record at 31-32. The defendant's affidavit further asserts that, although

the Prosecuting Attorney's Office requested bond in the amount of $50,000,

the trial court set bond in the amount of $100,000.

The defendant's request for a change of judge is governed by Indiana

Criminal Rule 12(B):

In felony and misdemeanor cases, the state or defendant may request a

change of judge for bias or prejudice. The party shall timely file an

affidavit that the judge has a personal bias or prejudice 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.

Rejecting the defendant's claim, the Court of Appeals concluded that

the defendant must establish prejudice which must be shown "by the conduct

of the trial judge and not inferred from the judge's subjective views" and

that reversal for bias or prejudice was warranted only "where the judge had

expressed an opinion on the merits of the case, in other words, on the

issue of guilt or innocence." Allen, 725 N.E.2d 472 at 475 (citing Kail v.

State, 528 N.E.2d 799, 804 (Ind. Ct. App. 1988)). This standard was

superseded by the adoption of the present language of Criminal Rule

12(B).[4]

Under the applicable procedure, a change of judge is neither

"automatic" nor "discretionary." Blanche v. State, 690 N.E.2d 709, 714

(Ind. 1998). 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 instead determine whether the

historical facts presented in support of the motion lead to a rational

inference of bias or prejudice.

Upon appeal of this decision, the standard of review is not whether

the judge's decision was an abuse of discretion but rather whether it was

clearly erroneous. Sturgeon v. State, 719 N.E.2d 1173, 1182 (Ind.

1999).This is a determination of law not a determination of fact dependent

upon assessment of weight or credibility of evidence. Legal conclusions

are not deferentially reviewed for abuse of discretion but are matters for

appellate determination.[5] Furthermore, we note that wWhen Criminal Rule

12 was substantially revised in 1995, separate subsections (B) and (C) were

created to distinguish cases involving felonies and misdemeanors from those

involving infractions and ordinance violations. The former rule, expressly

providing that rulings on motions for change of judge in criminal actions

"may be reviewed only for abuse of discretion," former Ind. Crim. R. 12

(1981), was retained in the new subsection (C) for infractions and

ordinance violations. As to felonies and misdemeanors, however, the new

subsection (B) omitted the "abuse of discretion" standard of review. As in

Sturgeon, the defendant appeals from felony convictions.

The issue presented is thus whether the trial judge, in determining

whether the historical facts recited in the affidavit support a rational

inference of bias or prejudice, was clearly erroneous. The defendant notes

Noting that he was charged with violent offenses against his wife and , the

defendant argues that the trial judge could not impartially sit on this

case because of the involvement of the judge and his wife in the fight

against domestic violence. In essence, the defendant's affidavit asserts

that the trial judge's wife is president of the Starke County Coalition

Against Domestic Abuse, that the judge appeared and spoke at a local radio

phoneathon designed to publicize the organization and to solicit donations

for a haven for victims of domestic abuse, and that the trial judge set

bail higher than that requested by the State. The affidavit presents no

facts regarding the content of the judge's remarks at the phoneathon. It

presents no facts suggesting that the organization functions in an advocacy

role seeking to influence the outcome of judicial proceedings.

As to the judge's wife's involvement in an organization devoted to

preventing domestic abuse and to providing shelter for its victims, we

decline to find a rational inference that the judge was thereby biased or

prejudiced. We likewise find no rational inference of bias or prejudice in

the judge's determination of initial bond.

The personal appearance of the judge in the phoneathon presents a more

difficult question. The Indiana Code of Judicial Conduct requires that

judges "shall act at all times in a manner that promotes public confidence

in the integrity and impartiality of the judiciary." Ind. Judicial Conduct

Canon 2(A). A judge must not "allow family, social, political, or other

relationships to influence the judge's judicial conduct or judgment." Jud.

Canon 2(B). The Code generally permits a judge to speak and participate in

extra-judicial activities "concerning the law, the legal system, the

administration of justice, and non-legal subjects." Jud. Canon 4(B).[6]

This is a valuable component of the public service provided by the

judiciary:

As a judicial officer and person specially learned in the law, a

judge is in a unique position to contribute to the improvement of the

law, the legal system, and the administration of justice, including

revision of substantive and procedural law and improvement of criminal

and juvenile justice. To the extent that time permits, a judge is

encouraged to do so, either independently or through a bar

association, judicial conference or other organization dedicated to

the improvement of the law. Judges may participate in efforts to

promote the fair administration of justice, the independence of the

judiciary, and the integrity of the legal profession, . . . .

Jud. Canon 4(B), cmt.

While not strictly a bar association or judicial conference, an

organization serving victims of domestic violence is not unlike various

organizations dedicated to the improvement of the law. Indiana judges

routinely appear and often speak at functions of organizations seeking, for

example, to advance juvenile justice, to improve criminal rehabilitation,

to prevent crime, and to encourage mediation and other alternative dispute

resolution methods. This participation does not raise a rational inference

of bias or prejudice if such judges preside over juvenile cases, criminal

sentencing proceedings, probation revocation hearings, or jury trials. So

it is with this judge's appearance and participation with an organization

seeking to assist the victims of domestic violence.

Because the historical facts recited in the defendant's affidavit do

not support a rational inference of bias or prejudice, we decline to find

error in the trial court's denial of the defendant's motion for change of

judge. In all other respects, the opinion of the Court of Appeals is

summarily affirmed. Ind. Appellate Rule 11(B)(3). The judgment of the

trial court is affirmed.

SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.

-----------------------

[1] Ind. Code § 35-42-2-1(a)(3).

[2] Ind. Code § 35-42-3-3(1).

[3] Ind. Code § 35-45-2-1(a)(1)(b)(1).

[4] Subsection (B), which applies to felony and misdemeanor cases, was

added to Criminal Rule 12 effective July 1, 1995. December 5, 1994, Order

Amending Rules of Criminal Procedure Relating to Change of Judge (found in

volume 641-642 of Ind. Cases ed. of N.E.2d at XLII, XLVII). In Sturgeon v.

State, 719 N.E.2d 1173, 1181 n.4 (Ind. 1999), we previously misstated the

effective date for the addition of subsection (B) as February 1, 1995,

based on Ind. Code Ann. tit. 35, app., Court Rules (Criminal) (West 1981 &

Supp. 1999) (Historical Note regarding Crim. R. 12).

[5] Relying on Harrison v. State, 644 N.E.2d 1243, 1249 (Ind. 1995),

the Court of Appeals asserted that a "ruling on a change of judge motion

lies within the sound discretion of the trial court and will be reversed

only upon a clear showing of an abuse of that discretion." Allen, 725

N.E.2d at 475. Harrison, however, was decided on January 4, 1995, under

the former rule, before the effective date of subsection (B). Similarly,

the defendant urges application of the Chief Justice's statement denying

reconsideration of his recusal in Tyson v. State, 622 N.E.2d 457 (Ind.

1993), which also preceded the adoption of subsection (B).

[6] The facts asserted in the defendant's affidavit raise the

possibility that the judge's conduct violated the proscription against

speaking at an organization's fund-raising event. See Jud. Canon

4(C)(3)(b), cmt.; but cf. Ind. Comm’n. on Jud. Qualifications, Advisory Op.

1-96 (1996). This possibility, however, is not relevant to the issue of

bias or prejudice.