*1 55,320 No. Clayton Appellee, Appellant. Kansas, Logan,
(689 778) P.2d
Opinion October 1984. filed *2 Wichita, Busch, Falk, argued O’Hara, O’Hara, & of A. of Charles Johnson appellant. for the was on brief cause and cause, attorney, argued Gorup, and Geary Robert T. assistant district N. Owens, attorney, Stephan, attorney general, were him and Clark V. district appellee. for the brief Smith, attorney general, was on the brief for the amicus R. assistant Kenneth Attorney curiae, Stephan. T. General Robert Office of was the court delivered opinion on a Petition for This case is before court Schroeder, C.J.: Appeals at 9 Kan. the Court of found Review of the decision of (1984). Clayton Logan (defendant-ap- App. 2d disqualification of his appealed the denial motion pellant) his a new The basis of motion for due to bias. (1) attorney was incom- original was that defendant’s two-fold: his (2) was biased because son petent, attorney judicial the same district worked as an assistant Appeals The Court of presided. in which the district motions, but went on to advise the trial denial of the affirmed the prosecuted by the from cases recuse himself .to long as his continued to be son district office granted review. employed there. We Appeals opinion, set The facts are out in Court 353-54, expanded purposes at but for of review an 2d May jury In convicted defendant is warranted. version methamphetamine in violation of K.S.A. Logan of the sale of 65-4127b(b)(2). 65-4107(d)(3) appeal direct Defendant’s unpublished opinion Appeals affirmed in an was Court 9, 1982). (No. 53,502 July filed appeal,
During original trial and on defendant trial, attorney Lyle Britt. At the Britt had de- represented Britt, prior being testify as certain convictions. mis- fendant law, brought could be as to the believed these convictions taken advice, Therefore, following Britt’s on cross-examination. out only involving his dis- convictions defendant disclosed felony robbery. namely, burglary The last of these honesty, years prior upon nine to the offense had occurred some offenses reasonably being jury was led to which tried. The defendant only those offenses that defendant had been convicted of believe fact, the most recent which the defendant had enumerated. which offense for the defendant was convicted was the sale drugs (LSD). attempted bring The State this fact out on defendant, cross-examination, at but the direction of his attorney, pled testify the Fifth Amendment refused to toas previous drug his conviction offense. The trial court jury disregard it testimony instructed was to deciding guilt or innocence of the defendant on the charges. presided above, Ballinger Owen at the trial. As noted prosecuting attorney employed by son was the district — Sedgwick County the same district over which his presides.
father Although alleged that the case, any way was in involved defendant believed the relationship was sufficient evidence of the court’s bias and as to fair constitute denial of a trial.
Following the affirmation of defendant’s conviction on appeal, defendant, represented by counsel, new moved for a new trial. motion, hearing Prior to the that on defendant’s motion for disqualification Judge Ballinger of by was heard and denied assigned judge. presented Evidence was then on the motion for by new trial and it Judge was denied Ballinger. Appeals affirmed,
The of treating Court the issues raised as having by been filed and the trial considered court under K.S.A. App. 60-1507. 9 Kan. 353. 2d
In Appeals decision, of Court defendant’s counsel provided services, to competent found and the de- contrary provided fendant’s claim to the setting no basis for aside the judgment and sentence. Appeals of Court also denied the complaint defendant’s
that reviewing portions was biased. After Canons 2 and 3 of the as Code of Conduct set forth in Judicial 601, Supreme cci, Court Rule 232 Kan. Appeals Court of resolved the issue as follows: only “The facts of this case show that the trial son was on the staff of the Sedgwick County attorney’s attorney during district office as an assistant district pendency support any finding action. The facts do not whatsoever right impeded, infringed upon, the defendant’s a fair to or denied any prejudiced connection here disclosed. find that We defendant was not in
way, ground. and his sentence and conviction should be set aside on this However, question being proceedings, to eliminate raised we future appropriate would deem it to recuse himself from cases 82 prosecuting while
pending
the district
office is
before him which
App.
employed
9
2d at 355.
its staff.” Kan.
Abbott
concurring
opinion,
Judge
agreed
Judge
record
party
was neither a
nor
Ballinger’s son
that the
motion
Judge Abbott noted
defendant’s
this action.
supporting
and
affidavit
disqualify the district court
under K.S.A. 20-311d.
Abbott concurred
were insufficient
advisory ruling
as well because a reasonable
with
question
knowledge
might
of all
the circumstances
601,
3C[1],
judge (Rule
Canon
Kan.
impartiality
[232
cciii]).
showing
that there was no
of actual bias or
He also noted
a fair trial.
prejudice,
therefore the defendant
received
as
We
whether defense counsel’s mistake
first review
admissibility
prejudicial
convictions was
of defendant’s
trial. The
the extent
that defendant did not receive
fair
rules
relative
determination
of effective assistance of counsel were
State,
2-4,
v.
481, Syl. ¶¶
2 Kan.
2d
Schoonover
stated
582
(1978),
292,
rev. denied
845
and have been
P.2d
Kan.
rei-
Tyus,
325,
v.
State
terated
this court
Crossman,
(1982),
(1981),
State v.
P.2d
Voiles,
P.2d 1121
follows:
right
presupposes
will
“The
counsel
that counsel
to effective assistance of
genuine
competent
capable
conducting
behalf of
defense on
guarantee
accused.
the law does not
the most brilliant
While
assistance of
counsel,
honest,
experienced
require
loyal, genuine
repre-
it does
and faithful
counsel,
part
appointed.”
retained or
sentation on the
be he
dishonest,
inadequate
incompetent
counsel
“Conduct
defense
which is so
or
clearly
practical effect to
at all
as to amount
no counsel
violates
However,
right
which amounts
Sixth Amendment
counsel.
conduct
to a
reasonably
lawyer
expected
competent
*4
substantial
of a
deviation
it,
community,
lawyer
ability
engage
average
that no
and which
causes the
conviction or otherwise works- to the client’s
substantial
client’s
disadvantage,
deprivation
guarantee
is also
of the constitutional
‘effective’
counsel.”
performance,
foregoing
applying
“In
to counsel’s
standard
effective
equated
cannot be
with the
assistance of
assistance of counsel
successful
counsel.
adequacy
gauged
behalf of an
must be
of an
services on
accused
by
segments analyzed
by
totality
representation,
fragmentary
of his
481, Syl. ¶¶ 2-4.
2 Kan.
2d
isolated cells.”
“totality
representation”
approach to
Applying this
requires that
can
present case
before we
find the defendant was
counsel, we must
denied
effective
assistance
determine
acceptable
conduct
fell
whether
counsel’s
below
level of
competency.”
If the counsel’s act was
result
“reasonable
of a
tactic,
defense
then this court will find
reasonable
his assistance
Crossman,
and effective. State v.
competent
have been
Carter,
390,
16, 23,
State v.
(1976).
at
Kan.
Although using counsel intended to be reasonable defense tactic, he operating under a misunderstanding by law of the believing bring the State would be prior able to out the convic- involving dishonesty they tions when cross-examined -the de- was attempting fendant. Counsel “lessen sting” jury credibility. and enhance the defendant’s At the motion for new trial, correctly law, counsel admitted that had he understood testify he would not have had defendant as to prior his convic- tions. appears credibility
It that defendant’s was damaged his advice and this advice counsel’s the result aof reason- Nonetheless, strategy. able when the conduct of defendant’s totality gauged representation, counsel his it seems did finding trial court not abuse its discretion in de- reasonably competent. fendant’s counsel was pre- He well pared, lodged objections evidence, numerous argued thoroughly his for a motion directed verdict and a motion in concerning limine. Counsel’s misunderstanding law de- fendant’s convictions the circumstances under which plead only could the Fifth Amendment were
84 Additionally, apparent it is not
apparent errors. error, acquitted in the absence of his counsel’s have been may the version chosen believe State’s jurors have to since the credibility had been if defendant’s not shaken. the events even this presented was to comparable A situation Wright, (1969). P.2d 1 The was 453 defendant on years attorney, had rape. although His he some for law, practice was unaware K.S.A. 60-421 experience questioning the State from prevented which would case, prior present his as on convictions. defendant Just questioned past him his Wright’s on some of convictions counsel brought which was then out prior rape offense on leaving out jury trial court instructed The to cross-examination. any reaching evidence of defendant’s record in consider This court that the error counsel was decision. determined prejudicial to defendant. case, limiting jury given a instruction prior1 crimes
that evidence of defendant’s could be considered credibility. solely purpose determining We jury instructions instead of must assume followed these proof guilt. Accordingly, as we considering evidence find prejudiced Logan was not his counsel’s mistake and there ground. granting is no new trial on basis of effective assistance of defense counsel was Consideration Court in Strickland v. recently Supreme the United States before U.S__, Washington, L.Ed.2d 104 S.Ct. (1984).
Was a fair trial the defendant herein denied because judge partial prosecution? to the premised
The motion for new trial was on K.S.A. 20-311 which provides: state, any “In criminal case a district court of this if contested civil or before related, by
any attorney any party marriage is record or to such case blood or child, spouse, parent, pending, before the same whom sister, grandparent, grandchild, as a brother or or is related such result of any child, grandparent, being spouse parent, grandchild, brother or sister, added.) disqualified hearing (Emphasis said case.” shall be assigned hearing finding matter correct Judge Ballinger’s was not an of record based actually participate in the employment when he did not case. party interpreted having lawsuit mean Being a *6 Obviously, financial interest in the outcome of the lawsuit. action, “party”
Ballinger’s son was not a to this where that term is meaning. given a narrow and technical Brown, 53, 56, v. Kan.
In Brown Pac. 1005 “party,” statutory provisions term as used constitutional disqualify judge, interpreted having intended to a to mean held, financial interest in the outcome of the lawsuit. It was there attorney if a is related to an in the cause whose fee is success, contingent upon or the amount of the fee is to be fixed court, “party.” and determined is a case, Judge Ballinger’s Under the party Brown son was not a Accordingly, automatically action. was not disqualified under K.S.A. 20-311. trial,
In his motion for new defendant submitted an affidavit of prejudice according procedure specified to the in K.S.A. 20- 311d(b)(5), provides: which “(b) (a) may alleged provided change Grounds which in subsection
judge are: “(5) party filing That the the affidavit has cause to believe and does believe that bias, personal prejudice, party on account of the or interest of the such impartial impartial post cannot obtain fair and trial or fair and enforcement of judgment remedies. Such shall state the and the reasons affidavit facts bias, prejudice, added.) that or an interest exists.” (Emphasis belief states, pertinent
Defendant’s affidavit part: Judge Ballinger prejudi- “4. is This a conflict of interest that I believe makes against cial me and all defendants. His son works for the same that trying to me have convicted. Judge Ballinger’s against me, I “5. feel that action demeanor Courtroom, personal personally and his actions show he dislikes me.” assigned judge legally ruled defendant’s affidavit was merely opinions insufficient because stated beliefs any support opinions did state factual basis agree general allegations beliefs. We do not meet statutory requirement state the facts and support allegation v. reasons to of bias. See Hulme Wolesl (1972); State, gel, 208 Kan. Schoonover Therefore, statutes, seq., 2d 481. K.S.A. 20-311 et disqualification, require disqualification do not nor automatic prejudice, allege due since the defendant failed to to bias or sufficient facts in his affidavit. pursuant himself to the judge have recused
Should 3C(1), Conduct, Rule Canon Code of Kansas Judicial words, step did failure of the trial cciii? In other which was a prejudice to the defendant in bias and aside result deciding if constituting reversible error? process denial of due beyond looking the K.S.A. a fair trial we are received defendant allegations merits of the of bias. 20-311d(b)(5) affidavit making analysis the fair trial two-part involved Plere a (1) duty Did the trial to recuse determination: future, cases like it in the under this case and himself duty 3C(1)? (2) have a to recuse and failed to do If he did Canon so, showing bias or to warrant of actual was there *7 setting judgment the of the trial court? aside disqualify 3C(1) provides judge that “a should himself
Canon
reasonably
impartiality might
be
in which his
proceeding
in a
has
been construed in
Although this Canon
questioned.”
Kansas,
guidance
interpretation
in their
of 28
cases offer
federal
455(a) (1982),
requires disqualification
if the
§
which also
U.S.C.
reasonably
questioned. The stan
might
be
judge’s impartiality
charge
is whether
of lack of
which federal courts use
dard
facts that would create reasonable
impartiality
grounded
on
impartiality,
the mind of the
concerning
jiidge’s
not in
doubt
himself,
even, necessarily,
litigant
in the mind of the
or
motion,
in the mind of a reasonable
but rather
filing
circumstances.
v. Mar
knowledge of all the
United States
(1st
(1980);
torano,
Cir.),
Arguably, there which was not in the law the situation herein involved possibility. which this There are no cases discuss firm situations. However, unlikely person it seems that reasonable would criminal defendants judge’s propensity that a to convict believe prosecutor. If were works as a we would increase because son situation, it would seem that “prosecution find a bias” this find, example, “pro-medi- logical step would be to next hearing were practioner judge if a with a doctor-son cal bias” There- far-reaching. This is malpractice medical case. result too fore, prosecution bias this we do not find situation.
88
is to
the Code of
Conduct
purposes
One of
Judicial
judicial
integrity
in the
public
confidence
maintain
Judges in the
Note,
See
process.
Disqualification
Justices
736,
(1973).
Courts,
Harv. L. Rev.
746
Even before
Federal
enacted,
proposition that
this
adhered to the
the Code
a case in which he is not
shall hear and determine
no
In re
disinterested,
free,
impartial
independent.
wholly
Hupp,
Tootle
Estate of
hand,
(1899).
Berkeley,
On the other
56 Pac.
“everyone
a fair trial before an
is entitled to
court has said
judges
try
had
cases in
impartial
judge, but
unbiased
acquainted
parties,
both
the fami-
they were
one or
which
parties
parties, and with counsel of the
since time
lies
Leverenz, 79, 85,
Leverenz v.
325 P.2d
immemorial.”
(1958).
perspective
of a “reasonable
view this case from
As we
cases,
apply
rationale of the federal
we
and as we
person”
appearance
where there is an
a situation
find this
remotely
judge’s
even
involved
partiality. The
say
this case. We cannot
preparation
“wholly free,
anything but
appear
the reasonable
to be
Hupp,
re Estate of
disinterested,
impartial
independent.”
—
Moreover,
judge’s
son will not be affected
and the majority’s disposition J., concurring: with the agree I Miller, opinion, with Chief one case and of this Justice’s Appeals, Court preferable, it as did the exception. I think or, criminal cases himself from recuse record, Abbott, on the when to offer to do so suggested prosecutor. on the staff of the local his son largest prosecutorial staff in the County has the Sedgwick fraud Judge Ballinger’s chief of consumer state. it, and, chapter no as I understand handled division that office so, public’s eye Ballinger Mr. in the was a prosecutions. Even prosecutor. larger than is in the rule be different counties
Should lawyers county in the where there are but two smaller counties suggestion think I make the same attorney’s office? I not. would staff. prosecutor’s size of the Recusal regardless is, propriety and appearance impartiality gives cases view, my preferred course. my judges and the learned Like esteemed associates question Judge I do for a moment Bal- Appeals, Court impartiality; and I find no reversible error linger’s fairness preferred suggest that the respectfully I course of this record. But arise, again situation judge, a similar should action action would reflect recusal. Such best recusal or offer of spirit of Canons.