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State v. Blackwell9/7/2004
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; or
(2) Repealed;
(3) Closely related to the defendant by blood or marriage; or
(4) For any other reason unable to perform the duties required of him in an impartial manner.
"The burden is on the party moving for recusal to demonstrate objectively that grounds for disqualification actually exist. The moving party may carry this burden with a showing of substantial evidence that there exists such a personal bias, prejudice or interest on the part of the judge that he would be unable to rule impartially or a showing that the circumstances are such that a reasonable person would question whether the judge could ruleimpartially." State v. Kennedy, 110 N.C. App. 302, 305, 429 S.E.2d 449, 451 (1993).
In this case, Defendant contends the following newspaper excerpt constituted grounds for disqualification: Blackwell pleaded guilty in September last year of habitual drunken driving and possession of heroin. According to court documents, he could have been sentenced to as much as 59 months on the two felonies. He was given two months.
The 60 days in jail were part of a "split sentence" that included three years on probation.
Superior Court Judge Orlando Hudson, who approved the plea bargain and who, according to court documents, set the sentence, said Friday he didn't recall the case. Under the state's Structured Sentencing Act, Hudson wasn't required to impose any imprisonment.
"Some people you cannot stop, because people don't respect the criminal justice system or any kind of law," Hudson said. "Short of putting people in jail for a period of time, there's nothing the court system and the police can do."
Hudson has on other occasions sent habitual DWI defendants to prison for long sentences, he noted, such as the 35-year sentence he imposed in Greensboro once. And with the proverbial acuity of hindsight, many court decisions could be second-guessed, he said. Added to that is the public's ambivalence between wanting to keep inmates in prison longer and its reluctance to pay for prisons to hold them.
"I think it's everybody's fault," he said.
Troopers said the Blackwell's batch of February 1996 charges resolved in the September plea did not involve a traffic accident, and they weren't aware of any other wrecks Blackwell had caused. Paul Bonner, Driver charged with murder, The Herald-Sun, March 1, 1997, at A1. The trial judge's comments in this newspaper article neither evidenced any bias, prejudice or interest or created an appearance of a preconception involving the charges. Moreover, a reasonable person would not suspect the judge's impartiality was tainted. Accordingly, we conclude the trial judge did not erroneously refuse to recuse himself.
Next, Defendant challenges his driving while license revoked conviction arguing the State did not sufficiently prove he had knowledge that his license had been revoked. He also contends the trial court erroneously instructed the jury on this charge.
In reviewing the sufficiency of the evidence, we must determine "whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense." State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995). The trial court's review of
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