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State v. Fernandez4/14/1994
be free from any indication of animosity towards Bokum's counsel. If indeed the Judge became angry, that anger would be understandable in light of the insistence of Bokum's counsel on pursuing meritless motions and his repeated attempts to introduce evidence to which objections had previously been sustained. "Judges, while expected to possess more than the average amount of self-restraint, are still only human. They do not possess limitless ability, once passion is aroused, to resist provocation." ), cert. denied, 419 U.S. 833, 95 S. Ct. 58, 42 L. Ed. 2d 59 (1974).
In re Bokum Resources, 26 B.R. at 622.
Defendant Specifically claims his counsel was "Screamed at by the trial Judge." Defendant refers this Court to three instances in support of his claim. After listening to the pertinent portions of the trial tapes, we do not agree with Defendant's characterization of Judge Eastburn's tone. In one of the instances Defendant calls our attention to, we recognize that the Judge was Speaking louder than he had previously; however, the Judge was not "screaming." In fact, the Judge's raised tone of Voice was in direct response to defense counsel's raised voice and defense counsel's continued interruption of the Judge as the Judge attempted to clarify a legal point with the jury.
We find no indication of bias or animosity in his tone of voice or the fact he required both sides to voice their evidentiary objections without making a jury argument. Cf. ) (counsel argument in front of jury under the supervision of the trial court which has wide discretion in that regard), cert. denied, 94 N.M. 628, 614 P.2d 545 (1980).
E. Evidentiary Rulings
Defendant next argues that the district Judge demonstrated his partiality by his various evidentiary rulings regarding the December 6 letter and other matters. The admission or exclusion of evidence is within the discretion of the district court. See (evidentiary ruling of trial court will not be disturbed absent an abuse of discretion). Again, judicial bias cannot be predicated upon unfavorable evidentiary rulings. . The mere fact that a Judge has consistently ruled for or against one party cannot, standing alone, provide a basis for a finding of judicial bias. In re Bokum Resources, 26 B.R. at 621.
Finally, as is customary, Judge Eastburn instructed the jury before opening statements as follows:
No statement, ruling, remark or comment that I may make during the course of the trial is intended to indicate my opinion as to how you should decide this case or to influence you in any way. At times I may ask questions of witnesses. If I do, such questions do not in any way indicate my opinion about the facts or indicate the weight that I feel you should give the testimony of any of the witnesses. . . . You are the sole Judges of the facts of this case, and that it's your role in this proceeding, and not mine.
At the close of the case, the court instructed the jury further that they were "the sole Judges of the facts in this case," that they "alone [were] the Judges of the credibility of the witnesses, and of the weight to be given to the testimony of each of them" and that they were "Judges of the facts [whose] sole interest is to ascertain the truth from the evidence in the case." Given the mixed verdict in this case, it seems obvious the jury was able to consider the evidence impartially.
II. SIX-MONTH RULE
Defendant argues the district court erred by not granting his motion to dismiss the charges filed against him, based on an alleged violation of the "six-month rule." SCRA 1986, 8-506(B) (Rep
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