Keene v. State

Leslie Wayne KEENE v. STATE of Arkansas

CA CR 96-291                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
               Opinion delivered February 12, 1997


1.   Judges -- refusal to recuse -- presumption of impartiality
     exists. -- A judge is required to recuse from cases in which
     his impartiality might reasonably be questioned; however,
     there is a presumption of impartiality, and the party seeking
     disqualification bears the burden of proving otherwise; the
     decision to recuse is within the trial court's discretion, and
     it will not be reversed absent abuse; an abuse of discretion
     can be proved by a showing of bias or prejudice on the part of
     the trial court.

2.   Judges -- trial judge refused to recuse -- no abuse of
     discretion found. -- The trial judge did not abuse his
     discretion in failing to recuse where he stated that he felt
     he could be "fair and impartial" and decide the case in a fair
     and impartial way, where appellant failed to allege any
     specific instances of bias or to show how he was prejudiced by
     the trial judge's failure to recuse, and where appellant's
     guilt was decided by a jury that imposed the minimum sentence
     for the offense.    

3.   Witnesses -- denial by witness of collateral acts of
     misconduct may be contradicted by extrinsic evidence --
     evidence sought to be introduced not contradictory. -- Where
     a witness testifies on direct examination that he has not
     committed collateral acts of misconduct, that testimony may be
     contradicted by extrinsic evidence; the appellate court was
     not persuaded that the proffered testimony was contradictory
     where the witness would have testified that she saw the
     informant smoke a "joint," but the informant had acknowledged
     that on occasion he had "simulated" the use of marijuana in
     order to gain trust. 

4.   Appeal & error -- appellate court does not reverse on basis of
     nonprejudicial error. -- The appellate court does not reverse
     on the basis of nonprejudicial error.

5.   Witnesses -- testimony of informant cumulative -- no prejudice
     resulted from exclusion of collateral contradictory testimony
     that might have impeached informant. -- Where the testimony
     that appellant argued was erroneously excluded would only have
     served to impeach by contradiction the informant's testimony,
     but the informant's testimony was determined to be cumulative,
     any error due to the exclusion was nonprejudicial.

     Appeal from Washington Circuit Court; William Storey, Judge;
affirmed.
     Jerome J. Paddock, for appellant.
     Winston Bryant, Att'y Gen., by:  Gil Dudley, Asst. Att'y Gen.,
for appellee.

     Margaret Meads, Judge.
     The appellant, Leslie Wayne Keene, was found guilty in a jury
trial of delivery of a controlled substance (methamphetamine) and
sentenced to ten years in the Arkansas Department of Correction. 
Appellant argues that the trial court erred in not granting his
motion to recuse and in excluding the testimony of Heather Goff. 
We disagree and affirm.
     Prior to trial, appellant filed a Motion to Recuse alleging
that the court should recuse because appellant had filed a
complaint against the court with the Judicial Discipline and
Disability Commission.  At a hearing on appellant's motion held
September 5, 1995, counsel argued that when allegations are made
against a court, there is an appearance that the court's
impartiality might be affected.  After listening to counsel's
argument, the trial judge stated that the mere filing of the
complaint is not a basis for recusal and denied appellant's motion. 
     Appellant argues that the trial judge erred in not granting
his motion and in not disqualifying himself.  Appellant relies on
Canon 3(E) of the Arkansas Code of Judicial Conduct, which provides
that a judge shall disqualify himself in a proceeding in which his
impartiality might reasonably be questioned.  
     In Turner v. State, 325 Ark. 237, 244, 926 S.W.2d 843, 847
(1996), our supreme court said:
          We turn next to the trial court's decision not to
     recuse in this case, which Turner claims was error.  We
     note at the outset that a judge is required to recuse
     from cases in which his impartiality might reasonably be
     questioned.  Ark. Code of Judicial Conduct, Canon 3E(1). 
     However, there is a presumption of impartiality, and the
     party seeking disqualification bears the burden of
     proving otherwise.  The decision to recuse is within the
     trial court's discretion, and it will not be reversed
     absent abuse.  An abuse of discretion can be proved by a
     showing of bias or prejudice on the part of the trial
     court.  (Citations omitted.)

     In similar circumstances Arkansas appellate courts have held
that the trial judge did not abuse his discretion in failing to
recuse.  See  Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988)
(trial judge did not err in failing to recuse when the appellant
raised the possibility of a class action federal lawsuit for
failure to promptly arraign him and others); and Korolko v.
Korolko, 33 Ark. App. 194, 803 S.W.2d 948 (1991) (trial court did
not err in refusing to recuse on its own motion where appellant's
counsel notified the trial judge by letter that he had filed a
complaint against him with the Judicial Discipline & Disability
Commission).   Here, the trial judge stated that this is a
situation involving "soul-searching," and after giving "thought and
consideration" to the motion he felt he could be "fair and
impartial" and decide the case in a fair and impartial way. 
Appellant has not alleged any specific instances of bias or shown
how he was prejudiced by the trial judge's failure to recuse. 
Moreover, appellant's guilt was decided by a jury that imposed the
minimum sentence for the offense.  We cannot say that the court
abused its discretion in failing to recuse.  
     Appellant also argues the trial court erred in excluding the
testimony of Heather Goff.  At trial, Charles Rogers, a
confidential informant, testified that on February 16, 1995, he and
Detective Larry Fiedorowicz went to appellant's house; appellant
got into the detective's pickup truck; and they started down the
highway.  Appellant said he wanted $25 a quarter (a quarter gram)
and that he had only three quarters left.  Rogers testified that
appellant handed him the "quarters" of what appellant said was and
what was later proved to be methamphetamine; he handed them to the
detective; and the detective handed appellant a one-hundred dollar
bill.  Rogers testified that he had used drugs in 1980 and 1982;
that he had not used drugs since then; that he has simulated using
drugs, which means that he acts "like I am doing it but am not
really doing it" in order to earn people's trust; and that he has
simulated smoking pot around appellant.  Rogers said that it is
easier to simulate with marijuana than anything else.  You do not
even have to suck on the "joint," but just put it to your lips and
act like you did.  
     Appellant proffered the testimony of Heather Goff who stated
that she had known Rogers for less than one year, had seen him
three or four times, and had seen him smoke a "joint."  Ms. Goff
also stated that she is familiar with the term "simulation" and has
no doubt that Rogers was not pretending.  
     Appellant argues that the trial court erred in excluding the
proffer because the issue of Rogers's drug use had been raised
during direct examination and Ms. Goff would have contradicted
Rogers.  Appellant contends Ms. Goff's testimony was proper
impeachment by contradiction.
     When a witness testifies on direct examination that he has not
committed collateral acts of misconduct, that testimony may be
contradicted by extrinsic evidence.  Hill v. State, 33 Ark. App.
135, 803 S.W.2d 935 (1991).  However, we are not persuaded that Ms.
Goff's testimony was contradictory.  Although Ms. Goff would have
testified that she saw Rogers smoke a "joint," Rogers acknowledged
that on occasion he had "simulated" the use of marijuana in order
to gain trust. 
     Even if Ms. Goff's testimony was erroneously excluded, the
appellate court does not reverse on the basis of nonprejudicial
error.  Hardcastle v. State, 25 Ark. App. 157, 755 S.W.2d 228
(1988).  At trial, Detective Fiedorowicz testified that he had
worked with Rogers since 1994, and that on the night in question he
picked Rogers up at his residence and patted him down.  They drove
to appellant's residence; Rogers went to the door; and Rogers and
appellant came back and got into the car.  Rogers then asked
appellant how much he had; appellant said he only had three
quarter-grams; and appellant instructed the detective to drive off. 
They drove down the street, and the detective pulled into a parking
lot.  Fiedorowicz testified that appellant removed three quarter-
grams of methamphetamine from his pocket; appellant showed it to
Rogers; and Rogers looked at it and handed it to the detective. 
Fiedorowicz testified that he saw appellant take it out of his
right-hand pocket and that he handed appellant $100.
     Therefore, we believe Rogers's testimony was merely
cumulative, and even if the trial court erred in not allowing Ms.
Goff's testimony, any error was nonprejudicial.
     Affirmed.
     Cooper and Stroud, JJ., agree.