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North Carolina v. Kennedy5/18/1993
GREENE, Judge.
Defendant Heather Miller Kennedy appeals from a judgment entered 12 December 1991, based on a jury verdict convicting her of driving while impaired and from the trial court's denial of defendant's motion to recuse the trial Judge.
Defendant was arrested 20 October 1990, and charged with driving while impaired. She was convicted in district court on 26 June 1991, and gave notice of appeal to the superior court. Prior to trial in the superior court, on 4 December 1991, defendant's attorney filed a motion that the trial Judge recuse himself on the ground that he could not be impartial because
the Honorable Judge's wife was involved in an accident wherein she was seriously injured, and the person driving the [other] vehicle was at fault in the accident was impaired.
The motion to recuse was accompanied by an affidavit from a local attorney containing the following:
That it is my belief . . . that the [trial Judge] has been especially requested to preside over this session of court [at which most defendants are charged with driving while impaired] . . . because of his feelings toward Driving While Impaired offenders. I have been informed that the [trial Judge's] wife was seriously injured in an automobile accident caused by an impaired driver.
I believe that this has an adverse impact upon any person . . . convicted of Driving While Impaired while the [trial Judge] is presiding . . . .
Defendant entered a plea of not guilty in superior court on 11 December 1991. The trial Judge heard argument on the motion to recuse, and defendant's attorney made a motion to have another superior court Judge hear the motion to recuse, stating "that the Affidavit that has been presented along with the Motion [to recuse] . . . presents such facts as a reasonable man would find would require Your Honor to refer the case to another Judge." The trial Judge denied the motion to have another superior court Judge hear the motion to recuse and denied the motion to recuse. The jury returned a verdict of guilty of driving while impaired.
The dispositive issue is whether the trial Judge's alleged opinions regarding the crime of driving while impaired constitute proper grounds to require the Judge to recuse himself.
Defendant asserts that she is allegedly a member of a class, those accused of driving while impaired, against which the trial Judge is biased, and that this bias stems from the fact that the trial Judge's wife was seriously injured by an impaired driver. In the alternative, defendant argues that even if these facts are not sufficient to show actual bias, they are enough to raise doubts in the mind of a reasonable person as to whether the Judge could rule impartially, and, therefore, give rise to the appearance of partiality. We do not agree.
Both N.C.G.S. § 15A-1223 and Canon 3 of the Code of Judicial Conduct control the disqualification of a Judge presiding over a criminal trial when partiality is claimed. State v. Fie, 320 N.C. 626, 627, 359 S.E.2d 774, 775 (1987).
North Carolina Gen. Stat. § 15A-1223 provides in pertinent part:
(b) A Judge, on motion of the State or the defendant, must disqualify himself from presiding over a criminal trial or other criminal proceeding if he is:
(1) Prejudiced against the moving party or in favor of the adverse party; . . .
N.C.G.S. § 15A-1223(b)(1) (1988).
The Code of Judicial Conduct provides in pertinent part:
(1) A Judge should disqualify himsel
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