STATE V. RIORDAN, 2009-NMSC-022, 146
N.M. 281, 209 P.3d 773
STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
J. TYRONE RIORDAN, Defendant-Appellant.
SUPREME COURT OF NEW MEXICO
2009-NMSC-022, 146 N.M. 281, 209 P.3d 773
INTERLOCUTORY APPEAL FROM THE DISTRICT COURT OF LINCOLN
COUNTY, Karen L. Parsons, District Judge.
Released for publication June 9, 2009.
Gary C. Mitchell, P.C., Gary C. Mitchell,
Mandy Kaye Waldrop Denson, Ruidoso, NM, for Appellant.
Gary K. King, Attorney General, Martha
Anne Kelly, Assistant Attorney General, Santa Fe, NM, for Appellee.
EDWARD L. CHÁVEZ, Chief Justice, PATRICIO
M. SERNA, Justice, PETRA JIMENEZ MAES, Justice, RICHARD C. BOSSON, Justice,
CHARLES W. DANIELS, Justice.
{1} Defendant J. Tyrone
Riordan has applied for interlocutory appeal of the trial court’s order denying
his motion requesting that Judge Karen Parsons recuse herself in three cases in
which he is the defendant, including a case in which he was charged with
capital murder.
Defendant argues that because he was subsequently
charged with conspiracy to commit assault with a deadly weapon against Judge
Parsons, she should recuse herself in the three pending cases to avoid an
appearance of impropriety. We conclude that Judge Parsons did not abuse her
discretion in denying Defendant’s motion and therefore deny Defendant’s
application for interlocutory appeal.
{2} The record shows
that Defendant has charges pending against him in three cases assigned to Judge
Parsons. In the first case, filed on May 18, 2007, Defendant was charged with
capital murder, tampering with evidence, and conspiracy to commit tampering
with evidence. In the second case, filed on June 29, 2007, Defendant was
charged with five counts of criminal sexual penetration and five counts of
contributing to the delinquency of a minor. In the third case, filed on
November 30, 2007, Defendant was charged with escape or attempted escape from
jail.
{3} On June 26, 2008,
while these cases were pending, Defendant was charged with conspiring to commit
an assault with a deadly weapon on Judge Parsons. When the conspiracy to commit
assault case was filed, all the judges in the Twelfth Judicial District,
including Judge Parsons, recused themselves from hearing the case. Defendant
then filed a motion in the trial court requesting that Judge Parsons recuse
herself from hearing his other three pending cases. Judge Parsons denied the
motion, but certified for interlocutory appeal the issue of whether her status
as an alleged victim in the conspiracy to commit assault case required her to
recuse in the three pending cases to avoid creating an appearance of
impropriety. Defendant filed an application for interlocutory appeal in the
Court of Appeals, which denied the application pursuant to
State v.
Smallwood,
2007-NMSC-005, ¶ 10,
141 N.M. 178,
152 P.3d 821 (holding that
this Court has jurisdiction to hear interlocutory appeals in cases involving a
sentence of life imprisonment or death). Defendant then filed his application
for interlocutory appeal in this Court.
{4} Pursuant to NMSA
1978, Section
39-3-3(A) (1972), Defendant seeks interlocutory appeal in all
three cases, including the capital case. “Allowance of an interlocutory appeal
is discretionary with the appellate court.”
State v. Hernandez,
95 N.M.
125, 126,
619 P.2d 570, 571 (Ct. App. 1980). We first discuss the application
in the capital case before addressing the applications in the non-capital
cases.
{5} This Court is
“vested by law with exclusive appellate jurisdiction in cases involving a
sentence of life imprisonment or death,” which extends under Section 39-3-3(A)
to jurisdiction over interlocutory appeals in such cases.
Smallwood,
2007-NMSC-005, ¶ 10. In the case before us, Defendant was charged with capital
murder under NMSA 1978, Section
30-2-1 (1994). At the time Defendant allegedly
committed the offense resulting in the capital murder charge, a conviction for
a capital offense was punishable by a sentence of life imprisonment or death.
See
NMSA 1978, §
31-18-14(A) (1993, prior to 2009 amendments). Accordingly, because
Defendant was charged with a capital crime, this Court has appellate
jurisdiction to review Defendant’s application for interlocutory appeal.
{6} Regarding
Defendant’s motion requesting that Judge Parsons recuse herself from his cases,
recusal rests within the discretion of the trial judge, and will only be
reversed upon a showing of an abuse of that discretion.
Demers v. Gerety,
92 N.M. 749, 752,
595 P.2d 387, 390 (Ct. App. 1978),
rev’d in part on other
grounds,
92 N.M. 396, 406,
589 P.2d 180, 190 (1978). “An abuse of
discretion occurs when the ruling is clearly against the logic and effect of the
facts and circumstances of the case. We cannot say the trial court abused its
discretion by its ruling unless we can characterize it as clearly untenable or
not justified by reason.”
State v. Rojo, 1999-NMSC-001, ¶ 41,
126 N.M.
438,
971 P.2d 829 (internal quotation marks and citations omitted). Although
Defendant argues that the question before us is one of law that should be
reviewed de novo, disqualification requires an examination of the specific
facts in the case.
See United States v. Holland, 519 F.3d 909, 913 (9th
Cir. 2008).
{7} Defendant argued to
the trial court that Judge Parsons’ recusal was required to avoid an appearance
of impropriety. In addition, Defendant argues in his application that both the
New Mexico Constitution and the Victims of Crime Act give Judge Parsons a
constitutionally vested interest in the outcome of the conspiracy to commit
assault case, which prevents her from being impartial.
See N.M. Const.
art. II, § 24; NMSA 1978, §§ 31- 26-1 to 31-26-14 (1994, as amended through 2005).
{8} Rule
21-200 NMRA
provides that “[a] judge shall avoid impropriety and the appearance of
impropriety in all the judge’s activities.” The committee commentary to Rule
21-200 defines an appearance of impropriety as “conduct [that] would create in
reasonable minds a perception that the judge's ability to carry out judicial
responsibilities with integrity, impartiality and competence is impaired[.]”
Consistent with this admonition, Rule
21-400(A) NMRA states that “[a] judge is
disqualified and shall recuse himself or herself in a proceeding in which the
judge's impartiality might reasonably be questioned[.]”
{9} Stating that
no New Mexico case is directly on point, Defendant relies on
United States
v. Greenspan, 26 F.3d 1001 (10th Cir. 1994), to argue that because Judge
Parsons knew she was allegedly the intended victim of a conspiracy to commit
assault with a deadly weapon, her impartiality toward Defendant might
reasonably be questioned, and thus her recusal was required. In
Greenspan,
shortly before a federal judge was scheduled to sentence a defendant on drug
charges, the FBI told the judge of an alleged conspiracy to assassinate him and
reported that the defendant in the drug case was involved in the conspiracy.
Id.,
26 F.3d at 1006. The Tenth Circuit held that the judge should have recused
himself under 28 U.S.C. Section 455(a), which, like Rule 21-400, states that
“[a]ny justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality might reasonably
be questioned.”
See Greenspan, 26 F.3d at 1007.
{10} The Tenth Circuit
applied “[S]ection 455(a)’s objective standard” to “decide whether the judge’s
impartiality might reasonably have been questioned in this particular case.”
Id.
at 1006. The court acknowledged that “threats or attempts to intimidate a
judge will not ordinarily satisfy the requirements for disqualification[.]”
Id.
Indeed, the court stated that “if a death threat is communicated directly to
the judge by a defendant, it may normally be presumed that one of the
defendant’s motivations is to obtain a recusal[.]”
Id. However, in
reaching its conclusion that the judge should have recused himself, the court
focused on the judge’s knowledge of the threat and its effect on the totality
of the circumstances surrounding the sentencing hearing.
Id.
Specifically, the court observed that after being told of the threat, the judge
had “accelerated the date of Greenspan’s sentencing, for the stated reason that
the court wanted to get Greenspan into the penitentiary system as quickly as
possible,” and that the judge had “refused to grant a continuance of the
sentencing hearing even though defendant’s counsel had been appointed only two
days before the sentencing date.”
Id. Under those circumstances, the
court reasoned, “[a]lthough any one of these actions standing alone would not
provide sufficient reason to believe a judge was biased against the defendant,
when considered in light of the judge’s knowledge of the alleged threats
against him, these factors might provide further bases for questioning the
court’s impartiality.”
Id. Thus, the court was convinced by the record
that “the judge’s impartiality might reasonably be questioned,” and held that
his recusal was required.
Id.
{11} The holding in
Greenspan
does not persuade us that Judge Parsons should have recused herself from
presiding over Defendant’s other three pending cases. Judge Parsons’ knowledge
of the threat against her is not, in itself, a reason to require
disqualification. Indeed, a different federal appellate court has specifically
noted that it was “wary” of the Tenth Circuit’s focus on the judge’s awareness
of the threat against him described in
Greenspan.
In re Basciano,
542 F.3d 950, 957 n.6 (2nd Cir. 2008). In
Basciano, in determining
whether a trial judge must recuse when learning of evidence that the defendant
has plotted or threatened to kill the judge, the Second Circuit wrote that “we
must focus first on whether ‘an objective, disinterested observer[,] fully
informed of the underlying facts, [would] entertain significant doubt that
justice would be done absent recusal.’”
Id. at 956 (quoting
United
States v. Amico, 486 F.3d 764, 775 (2nd Cir. 2007)). The court stated that
when there is a “significant possibility” that the defendant is attempting to
manipulate the system, deference should be given to the decision of the trial
judge.
Id. at 957. In determining whether an objective observer would
conclude that a judge’s impartiality was questionable, an appellate court
should look to see how the judge arrived at the decision not to recuse and then
should review the judge’s actions for bias.
Id.
{12} In the case before
us, the State argued to the trial court that Defendant’s conduct of refusing to
leave his cell for court proceedings, refusing to confer with his attorneys,
refusing to eat, and refusing medical treatment demonstrated a pattern of
obstruction and delay. Thus, there was evidence before the trial court that
Defendant may have been attempting to manipulate the system. In addition, in
contrast to
Greenspan, the judge found “that no objective evidence of
bias on the part of the Court has been presented and that under the
circumstances of this case there is no appearance of impropriety for the Court
to remain on these cases.”
{13} In addition, we are
persuaded that recusal should not automatically be required when a judge is
threatened.
See Basciano, 542 F.3d at 956 (listing cases concluding that
recusal is not ordinarily required when a judge faces threats).
State v.
Robinson,
2008-NMCA-036, ¶ 10,
143 N.M. 646,
179 P.3d 1254 is also
instructive. In
Robinson, our Court of Appeals addressed the situation
of when threats against a prosecutor require the prosecutor’s removal and held
that a prosecutor does not have to be removed from a case simply because the
defendant has threatened the prosecutor.
Id., ¶ 24. The court reasoned
that “as [a] matter of policy, a defendant does not create a disqualifying
interest and cannot choose his or her prosecutor for an underlying offense by
the use of threats.”
Id. Of direct import to the issue before us, the
Court of Appeals quoted
Resnover v. Pearson, 754 F. Supp. 1374, 1388-89
(N.D. Ind. 1991) for the principle that “[t]he law is clear that a party,
including a defendant in a criminal case, cannot drive a state trial judge off
the bench in a case by threatening him or her.”).
2008-NMCA-036, ¶ 24. We
endorse this statement as a sound principle to apply to the issue of recusal
when a judge is threatened by a defendant.
{14} Consistent with the
view that absent some showing of bias, threats alone do not require recusal, we
have held that in the context of contempt hearings, recusal is only required
“when a judge has become so embroiled in the controversy that he cannot fairly
and objectively hear the case[.]”
State v. Stout,
100 N.M. 472, 475,
672
P.2d 645, 648 (1983). We agree, therefore, with the requirement in the federal
cases that the facts and circumstances of the case must demonstrate that “the
defendant’s behavior has resulted in actions by the judge which might be viewed
by ‘an objective, disinterested observer’ as evidencing bias.”
Basciano,
542 F.3d at 957.
{15} Neither party
provides us with a detailed account of the evidentiary hearing on the recusal
motion, and we note that it is the appellant’s burden under Rule
12-203(B) NMRA
to provide this Court with “a statement of the facts necessary to an
understanding of the controlling question of law[.]” However, the State
represents that Defendant “offered no examples of actual bias” and the judge
stated that she had no personal bias or animosity toward Defendant. Moreover,
in the order denying Defendant’s motion, the court found “that no objective
evidence of bias on the part of the Court has been presented and that under the
circumstances of this case there is no appearance of impropriety for the Court
to remain on these cases.” Under these circumstances, where the judge held a
hearing at which no evidence was presented that the judge demonstrated bias
against Defendant, we presume Judge Parsons correctly declined to recuse
herself from hearing Defendant’s cases.
See State v. Aragon,
1999-NMCA-060, ¶ 10,
127 N.M. 393,
981 P.2d 1211 (stating that there is a
presumption of correctness in the rulings or decisions of the trial court, and
the party claiming error bears the burden of showing such error).
{16} Defendant also
argues that Judge Parsons’ status as an alleged victim in an unrelated case
involving Defendant (in which Judge Parsons has recused) gives her “a
constitutionally vested interest” in the case, which requires recusal in the
pending cases under Rule 21-400(A). Specifically, Defendant contends that
because
Article II, Section 24 of the New Mexico Constitution and the Victims
of Crime Act, §§ 31-26-1 to 31-26-14, provide victims of crimes with additional
rights in court proceedings, this unique constitutional provision makes federal
case law inapplicable. Defendant’s application does not indicate, however, that
this argument was made to the trial court, and the court does not address it in
its order. Assuming that this argument was preserved, we are not persuaded that
Article II, Section 24 of either the New Mexico Constitution or the Victims of
Crime Act alters our analysis of this case.
{17} Both Article II,
Section 24 and Section 31-26-3 provide victims of specific crimes listed in the
Constitution and the Act with defined rights in judicial proceedings. Judge
Parsons is the alleged victim of conspiracy to commit aggravated battery,
criminal damage to property, and possession of a deadly weapon. None of these
offenses are listed in Article II, Section 24 or Section 31-26-3, for which rights
are granted. Perhaps more importantly, Judge Parsons does not have any
“victim’s rights” in Defendant’s cases that are pending before her. As a
result, neither the New Mexico Constitution nor the Victims of Crime Act gives
Judge Parsons any additional rights that affect our analysis or would require
her recusal under Rule 21-400. Accordingly, we deny Defendant’s application for
interlocutory appeal from the trial court’s denial of his motion requesting her
recusal in the capital case.
{18} As discussed above
in
Smallwood, we concluded that “the legislature intended for us to have
jurisdiction over interlocutory appeals in situations where a defendant may
possibly be sentenced to life imprisonment or death.”
2007-NMSC-005, ¶ 11.
{19} The offenses with
which Defendant was charged in the other two cases assigned to Judge Parsons
are fourth degree felonies, not capital crimes. Therefore, jurisdiction over
the interlocutory appeals from the trial court’s order in those cases lies in the
Court of Appeals, and we deny the application on those grounds.
See NMSA
1978, §
34-5-8(A)(3) (1983); § 39-3-3. Although the Court of Appeals denied
Defendant’s application, believing that it lacked jurisdiction, Defendant did
not petition this Court for a writ of certiorari in those cases. We note,
however, that such a petition would have been denied for the reasons set out in
this opinion.
{20} For the foregoing
reasons, Defendant’s application for interlocutory appeal is denied.
EDWARD L. CHÁVEZ, Chief Justice
PATRICIO M. SERNA, Justice
PETRA JIMENEZ MAES, Justice
RICHARD C. BOSSON, Justice
CHARLES W. DANIELS, Justice
Topic Index for State v. Riordan, No. 31,586
AE-AJ Appellate Jurisdiction
AE-IA Interlocutory Appeal
CA-EH Evidentiary Hearing
JG-AD Abuse of Discretion
JG-CC Code of Judicial
Conduct
JG-PC Propriety of
Conduct