Fulltext Opinions
COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia
KAMA DEARBORN DAVIS
v. Record No. 1257-94-1 OPINION
BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Johnny E. Morrison, Judge
Dianne G. Ringer, Assistant Public Defender,
for appellant.
Richard H. Rizk, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Katherine P. Baldwin, Assistant Attorney General,
on brief), for appellee.
Kama Dearborn Davis (appellant) appeals from a judgment of
the Circuit Court of the City of Portsmouth (trial court) that
approved a jury verdict convicting him of aggravated sexual
battery and forcible sodomy. Appellant contends that the
judgment must be reversed because the trial judge erroneously
refused to recuse himself from presiding over the trial, and
because he denied motions made during the course of the trial by
appellant’s trial counsel to withdraw as counsel for appellant.
Finding no error, we affirm.
In this appeal, as sufficiency of the evidence to support
the convictions is not at issue, we consider only the evidence
relevant to recusal and counsel’s professional responsibility.
The record discloses that in the summer of 1985, the victim was
five years old. She lived with her mother and her seven-year-old
– 2 –
brother. Appellant, a friend of the victim’s mother, lived with
them for a period of time and baby-sat the children during their
mother’s absence. The victim testified that one evening that
summer when her mother was not at home she and her brother
watched television with appellant in the living room. After
watching a movie, appellant sent the victim’s brother to bed
early. Appellant then changed into one of the mother’s
bathrobes, lay on the living room couch, and told the victim to
come over and “suck” his penis. When she refused, he took hold
of the back of her head with his hand and forced her mouth onto
his penis. While this was occurring, the brother appeared. He
stated that he needed to go to the bathroom, which was across the
living room, and he testified that he saw his sister on her knees
close to appellant and that appellant’s penis was exposed. He
then went back to bed and fell asleep.
The victim further testified that appellant forced her to
place her mouth on his penis again. He ejaculated into her
mouth, after which she went into the bathroom, washed out her
mouth, and then went to bed. Appellant followed her to her bed,
pulled up her gown and pulled down her panties and began manually
“messing” with her genitals.
I. The Recusal
Prior to trial, appellant made two separate motions
requesting the trial judge to recuse himself on the ground that
as a former Commonwealth Attorney he had previously prosecuted
– 3 –
appellant on criminal charges. The court denied the motion both
times. On the second occasion, the trial judge stated, “I don’t
know this gentleman, and I don’t remember him. . . . if I
prosecuted him, it would have been before I took the Bench [in]
February, 1991.” It is clear that the trial judge had no
preconceived bias against appellant. Appellant had requested
that he be tried by a jury and his guilt or innocence was to be
decided by that jury. The jury would not be aware of appellant’s
prior convictions, if any, unless appellant testified on his own
behalf. No ruling by the trial court demonstrates any bias
prejudicial to appellant.
Canon 3(C) of the Canons of Judicial Conduct, which guides
our decision in this matter, provides:
C. Disqualification.
(a) A judge shall disqualify himself in
any proceeding in which his impartiality
might reasonably be questioned.
(1) To this end, he should abstain from
performing or taking part in any judicial act
in which his personal interests are involved.
He should not act in a controversy where a
near relative is a party. He should not
suffer his conduct to justify the impression
that any person can improperly influence him
or unduly enjoy his favor, or that he is
affected by his kinship, rank, position or
influence of any party or other person.
(2) A judge should inform himself about
his personal and fiduciary financial
interests, and make a reasonable effort to
inform himself about the personal financial
interests of his spouse and minor children
residing in his household.
– 4 –
The requirement of this Canon is clear; a judge must diligently
avoid not only impropriety but a reasonable appearance of
impropriety as well. Exactly when a judge’s impartiality might
reasonably be called into question is a determination to be made
by that judge in the exercise of his or her sound discretion.
Justus v. Commonwealth, 222 Va. 667, 673, 238 S.E.2d 905, 908
(1981), cert. denied, 455 U.S. 983 (1982). Judges are presumed
to be aware of the provisions of Canon 3, and their decisions
will not be disturbed absent an abuse of that discretion.
Subsections (1) and (2) of the Canon provide that judges
should abstain from presiding when either they, or a near
relative, have an “interest,” financial or otherwise, in the
proceeding. These subsections specify particular situations when
a judge’s impartiality might reasonably be called into question.
While these subsections do not provide an exhaustive list, they
certainly provide insight into the type of situations which give
rise to a reasonable appearance of impropriety. What is certain
is that Canon 3(C) does not require a judge to recuse himself or
herself and disrupt the orderly flow of the docket at the whim or
unsupported suggestion of a party.
Appellant argues that Broady v. Commonwealth, 16 Va. App.
281, 429 S.E.2d 468 (1993) requires this Court to reverse his
convictions because the trial judge refused to recuse himself.
We disagree. The facts in Broady are substantially different
from those before us. In addition, Broady’s conviction was
– 5 –
reversed because of a Batson issue, not because of the trial
judge’s knowledge of the accused’s prior criminal record.
In effect, appellant asks that we adopt a per se rule
declaring that trial judges who as Commonwealth Attorneys
previously have prosecuted an accused may not preside over the
accused’s trial on criminal charges. We decline to declare such
rule. As stated previously, the trial judge must exercise
discretion in determining whether he or she harbors bias or
prejudice that might impair the judge’s ability to give the
defendant a fair trial. Justus, 222 Va. at 673, 283 S.E.2d at
908 (1981); see also Terrell v. Commonwealth, 12 Va. App. 285,
403 S.E.2d 387 (1991).
We find nothing in the record to show abuse of trial court
discretion and further find that under the facts here, the trial
judge’s impartiality cannot reasonably be questioned.
II. Counsel’s Professional Responsibility
On cross-examination, appellant’s public defender counsel
asked the victim if she had testified at the preliminary hearing
regarding the incident in the bedroom. The victim answered,
“Yes.” After the Commonwealth rested and the trial court
overruled appellant’s motion to strike based upon the
insufficiency of the evidence, appellant’s counsel advised the
court that she had learned from another assistant public defender
(Lambert) that the victim had not testified at the preliminary
hearing regarding the incident in the bedroom. Lambert had
– 6 –
represented appellant in that proceeding. Appellant’s counsel
then moved to withdraw, based upon the fact that the defense
intended to call Lambert as a witness to impeach the credibility
of the victim. The trial court denied counsel’s motion to
withdraw.
In support of appellant’s position that the trial court
erred when it refused to permit his counsel to withdraw,
appellant cites Rule 5-102(A) of the Disciplinary Rules of the
Virginia Code of Professional Responsibility that provides:
If, after undertaking employment in
contemplated or pending litigation, a lawyer
learns or it is obvious that he or a lawyer
in his firm ought to be called as a witness
on behalf of his client, he shall withdraw
from the conduct of the trial and his firm,
if any, shall not continue representation in
the trial, except that he may continue the
representation and he or a lawyer in his firm
may testify in the circumstances enumerated
in DR 5-101(B)(1) through (3).
After the trial court denied the motion to withdraw,
appellant’s counsel presented several witnesses, including
appellant. At trial, counsel did not argue that it would be
prejudicial to appellant’s defense if Lambert was not permitted
to testify. Counsel appeared to be concerned with her personal
professional responsibility, not with the fact that her continued
representation of appellant would be prejudicial to him.1 We
hold that under the facts presented here, the trial court did not
1When the trial court denied counsel’s motion to withdraw,
counsel responded, “Thank you, Your Honor, as long as it’s on the
record that I made a motion to withdraw.”
– 7 –
erroneously refuse to permit counsel to withdraw.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
