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Morris v. Commonwealth3/2/2004
Leroy C. Morris appeals his convictions of felony hit and run, driving in violation of a license restriction, and driving under the influence of alcohol, second offense. Morris contends that the convictions should be reversed because the trial judge, formerly a Commonwealth's Attorney, erroneously refused to recuse himself from presiding over the trial, having formerly prosecuted Morris on three separate occasions. Absent proof of actual bias, we find no abuse of discretion by the trial court, and affirm its judgment.
BACKGROUND
On February 11, 2002, Morris was charged with felony hit and run in violation of Code § 46.2-894; operating a vehicle in violation of a license restriction imposed pursuant to Code § 18.2-271.1 and in violation of Code § 18.2-172; and operating a motor vehicle while under the influence of alcohol, second offense within five years, in violation of Code § 18.2-266. On August 27, 2002, Morris entered pleas of not guilty, and was tried by a jury.
On the day of trial, Morris requested the trial judge recuse himself because he had, before becoming a judge, prosecuted Morris on three different occasions. On July 22, 1994 while serving as Commonwealth's Attorney for Greene County, the trial judge prosecuted Morris for assault and battery. On July 31, 1996, he prosecuted Morris on two charges of recklessly handling a firearm so as to endanger life, limb or property. Finally on March 4, 1997, he again prosecuted Morris for assault and battery. On each of these occasions Morris was convicted. Counsel for Morris proffered that each of these cases involved "intemperate use of alcohol," as did the current case before the trial court.
The trial judge stated on the record that he had "absolutely no recollection of the cases." He further stated that he had "no doubt whatsoever, that [the trial court] can be completely impartial when it comes to Mr. Morris." Asserting that he had no difficulty handling Morris' alcohol abuse problem in a completely fair and impartial way, the trial court denied Morris' motion to recuse. The jury subsequently found Morris guilty on all three charges.
ANALYSIS
Morris contends that Canon 3(E)(1)(b) of the Canons of Judicial Conduct required the trial judge to recuse himself. He argues that the standard before the trial court was not whether the trial judge remembered Morris, but whether it was reasonable to question the trial judge's impartiality when he had, on three previous occasions, prosecuted Morris on charges that arose from the same kind of behavior.
Canon 3(E)(1) states in pertinent part:
Disqualification.
A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: (a) The judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding; (b) The judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it; . . . .
However, " purported violation of the Canons alone is not enough to mandate recusal." Commonwealth v. Jackson, 267 Va. 226, __ S.E.2d __ (2004) (citing Davis v. Commonwealth, 21 Va. App. 587, 591, 466 S.E.2d 741, 743 (1996)); see Welsh v. Commonwealth, 14 Va. App. 300, 317, 416 S.E.2d 451, 461 (1992), aff'd, 246 Va. 337, 437 S.E.2d 914 (1993).
In Davis, we held that the trial judge did not err in refusing to recuse himself in a case
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