Lofton v. State

Andree Layton Roaf, Judge. Donnie Wayne Lofton was convicted in a jury trial of manslaughter for causing the death of the twenty-one-month-old son of his live-in girlfriend, and was sentenced to ten years’ imprisonment. He raises two points on appeal. He first argues that the trial court erred in denying his motion for directed verdict. He also contends that Judge Sam Pope should have recused and not presided over his trial because Judge Pope had been the prosecuting attorney during the initial investigation into the death of the child. We are unable to reach the merits of Lofton’s first point because his motion for directed verdict addressed only the charge of first-degree murder. We further hold that Judge Pope did not abuse his discretion in declining to recuse, and affirm the conviction. On November 13, 1994, twenty-one-month-old Christopher Chase Fleming received a blunt trauma injury to his head that resulted in his death two days later. A jury determined that the injury was caused by Lofton, in whose trader the child had been living along with his mother and brother. The source of the injury as well as the exact time it occurred was controverted at trial. A warrant for the arrest of Lofton was authorized by Judge Sam Pope and issued on January 24, 1995. Lofton was arrested on January 25, 1995, and released on $25,000 bond set by Judge Pope on February 1, 1995. The information charging Lofton with first-degree murder was filed May 18, 1995. The case was tried before Judge Pope on July 20, 1995. Pope had been the prosecutor until December 31, 1994, and his office had been involved in the early investigation into the child’s death. The judge set June 30th as a deadline for filing pretrial motions so that they could be heard on July 3rd. After initial jury orientation on July 18th, but before jury selection, Lofton moved to have Judge Pope recuse due to his former office’s involvement with the case during the time before he became circuit judge. The judge heard and denied the motion, stating in essence that it was offered too late, and that he recalled no direct involvement in the investigation and could be fair in the case. At trial, the State produced the victim’s five-year-old brother as an eyewitness. After the court determined his competency to testify, he stated that he observed Lofton throw Christopher on the couch and that the child hit his head on the wooden arm, causing him to cry for a long time. Expert medical testimony indicated that the fatal injury was consistent with hitting a smooth surface like the wooden arm on the couch. Lofton adduced testimony that Christopher had fallen from a porch at his grandmother’s home several days previously. Christopher’s mother, Kinda Fleming, stated that Lofton told her that Christopher had fallen from his porch while she was away at a video rental store on the day the fatal injury allegedly occurred. The time of the injury was brought into question by Fleming’s statements to emergency medical personnel that the child had been fine all day up to and including when Lofton had put him to bed. Fleming indicated that she became aware of a problem only after she awoke to the sound of Christopher’s labored breathing, and found he had an elevated temperature. Expert medical testimony indicated that the injury would have caused the child severe distress for several hours before he was brought to the emergency room. Lofton moved for a directed verdict on the charge of first-degree murder at the close of the State’s case, and for a directed verdict on the charges of first- and second-degree murder at the close of all the evidence. The motions were denied, and he was convicted of manslaughter and given a ten-year sentence. 1. Directed verdict Lofton argues that the trial court erred in denying his motion for a directed verdict at the end of the State’s evidence and at the end of all the evidence. However, the State asserts correcdy that because Lofton’s motion for a directed verdict at the close of the State’s case addressed only first-degree murder, he has not preserved the issue of whether there was sufficient evidence to convict him of manslaughter. In Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996), the supreme court held that in order to preserve for appeal the issue of sufficiency of the evidence, the defendant must have addressed the lesser-included offense he was convicted of by name or by the culpability required. Because Lofton failed to challenge the sufficiency of the evidence for manslaughter at the close of the State’s case and at the end of all the evidence, his argument on this point is procedurally barred. 2. Recusal Lofton also contends that the trial court erred when it denied his motion asking that the court recuse. As an initial matter, the State asserts that this argument is not preserved for appeal because the motion for recusal was untimely. Although the motion was filed well after the deadline set by the trial court for the filing of pretrial motions and only two days before Lofton’s scheduled trial date, the trial court heard the motion on its merits before denying it. In Arkansas, the state constitution provides the grounds for the disqualification a judge: “No judge or justice shall preside in the trial of any cause in the event of which he may be interested, ... or in which he may have been of counsel . . . .” Ark. Const. art. 7, § 20. While disqualification of a judge may be waived, ignorance of the grounds for disqualification cannot constitute such a waiver, and if a party discovers the grounds after the trial has been completed, it is grounds for reversal on appeal. See Byler v. State, 210 Ark. 790, 197 S.W.2d 748 (1946). Consequently, we cannot conclude that the motion was not properly before the trial court or that the trial court’s ruling on it was not properly preserved for review. As to the merits, Lofton cites Canon 3E(1) of the Code of Judicial Conduct as authority for his assertion that Judge Pope should have disqualified himself from the proceeding. It states in pertinent part: (1) 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: (b) the judge served as a lawyer in the matter of controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter. Arkansas Code of Judicial Conduct, Canon 3E(1). Lofton contends that because Judge Pope’s term as the elected prosecutor coincided with the pendency of the investigation from November 13 to December 31, 1994, he became privy to certain information received in the prosecutor’s office during this period. Lofton submits that four documents are evidence of the personal involvement by Judge Pope in the investigation into Christopher’s death: 1) a notice of child maltreatment form issued by ADHS dated November 14, 1994, and addressed to Sam Pope; 2) investigation notes prepared by Bill Setterman dated November 17, 1994, indicating that Setterman told Chief Deputy Prosecuting Attorney Joe Wray that Lofton had lived with two other women whose small babies died; 3) a request from Setterman to “Sam or Joe” dated November 21, 1994, for a subpoena duces tecum to Ashley Memorial Hospital for all records of Christopher and the two other infants who died; and 4) a subpoena issued by Joe Wray on December 16, 1994, to G and W Family Clinic for treatment records of Christopher since his birth. Lofton further notes that Judge Pope granted the arrest warrant on January 24, 1995, after Municipal Judge Reid Harrod failed to find probable cause and suggests that, while it is not evidence of actual bias, this act puts into question Judge Pope’s impartiality. The State contends in response to Lofton’s arguments that the prosecutor’s office merely received the four documents listed by Lofton, and that they are not evidence of Judge Pope’s personal involvement in the investigation. Moreover, the State contends that no “case” existed against Lofton until he was arrested on January 25, 1995, and consequently, Judge Pope did not serve as a lawyer in the prosecution of Lofton. We do not agree with Lofton’s argument that Canon 3E(1) of the Arkansas Code of Judicial Conduct provides the basis for reversal of his conviction. Judge Pope denied any involvement in the investigation into Christopher’s death, and even if his deputy, Joe Wray, was directly involved during the relevant period, the commentary to Section 3E(1) states: A lawyer in a governmental agency does not ordinarily have an association with other lawyers employed by the agency within the meaning of Section 3E(l)(b) . . . A judge formerly employed by a governmental agency, however, should disqualify himself. . . in a proceeding if the judge’s impartiality might reasonably be questionable because of such association. Moreover, the preamble to the Code of Judicial Conduct states that the Code should be applied “consistent with constitutional requirements, statutes . . . [and] decisional law” and “construed so as not to impinge on the essential independence of judges in making judicial decisions.” Significantly, the preamble further provides: The Code is designed to provide guidance to judges and to provide for a structure for regulatory conduct through disciplinary agencies. It is not designed or intended as a basis for civil liability or criminal prosecution. Furthermore, the purpose of the Code would be subverted if the Code were invoked by lawyers for mere tactical advantage in a proceeding. We thus turn to the decisional law involving former prosecuting attorneys who have later served as trial judges in proceedings in which their impartiality has been questioned. We first observe that in construing Canon 3E(I), Arkansas appellate courts have stated that there is a presumption of impartiality, and the party seeking disqualification has the burden of proving otherwise. Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996); Gentry v. State, 47 Ark. App. 117, 886 S.W.2d 885 (1994). Furthermore, the decision to recuse is within the trial court’s discretion and will not be reversed absent abuse. Turner, supra. An abuse of discretion can be proved by a showing of bias or prejudice on the part of the trial court. Turner, supra. In Turner, the supreme court stated: We initially observe on this point that there was no showing by Turner that he was treated unfairly in the trial of this matter. In fact, in Turner’s reply brief, his counsel admitted that Turner was treated fairly at trial. Id. at 244, 926 S.W.2d at 847. Although Turner involved a trial judge who had prosecuted the appellant for other crimes before taking the bench, Lofton has likewise not alleged actual bias in his brief or asserted that he was treated unfairly by Judge Pope in the trial of his case. Furthermore, we have not discovered any decisions which suggest that Judge Pope’s recusal was mandated in this case. In Fisher v. State, 206 Ark. 177, 174 S.W.2d 446 (1943), the supreme court held that a trial judge who signs the information or criminal indictment as prosecuting attorney has been “of counsel,” and is disqualified to preside in the trial of the case under the Arkansas Constitution. However, Lofton was not arrested and the information was not filed against him while Judge Pope served as prosecutor and we do not find that he had been “of counsel” in Lofton’s case under the holding of Fisher. In Jordan v. State, 274 Ark. 572, 626 S.W.2d 947 (1982), the supreme court held that a trial judge who formerly prosecuted a defendant on three of four felony convictions used to enhance punishment is not disqualified under Ark. Const. art. 7, § 20, because the prohibition against his presiding in a case in which he was “of counsel” relates to the case being tried. However, Jordan also alleged actual bias, and the court stated that the fundamental issue was whether under the circumstances the judge’s impartiality might reasonably be questioned, pursuant to Canon 3 of the Code of Judicial Conduct, and held that there was no objective intimation of bias or prejudice in the proceedings. Here, Lofton argues that Judge Pope based his refusal to recuse on “time constraints” and states that it can be assumed that Judge Pope’s caseload was heavy and that his docket was full. Although Lofton questions Judge Pope’s authorization of the arrest warrant, he acknowledges that he could not show that Judge Pope was biased or prejudiced in any way at the hearing on his recusal motion, and states that his concern is with the “appearance of impropriety or conflict of interest.” Lofton does not argue actual bias, and, as in Jordan, we do not find any objective intimation of bias or prejudice. Moreover, in Jordan, the court stated that it regarded the appellant’s allegation of the “appearance of bias” as subjective. We conclude that Judge Pope’s recusal was not mandated by either Canon 3E of the Code of Judicial Conduct or Ark. Const, art. 7, § 20, and that the decision to recuse was within the discretion of the trial court in this instance. As Lofton has not alleged that Judge Pope was biased or unfair in the proceedings, we cannot say that his refusal to recuse was an abuse of discretion. Affirmed. Robbins, C.J., and Pittman, Rogers, and Meads, JJ., agree. Griffen, J., dissents.