State v. FieAnnotate this Case
359 S.E.2d 774 (1987)
320 N.C. 626
STATE of North Carolina v. Floyd Rufus FIE and Steve Harverson.
Supreme Court of North Carolina.
September 3, 1987.
*775 Lacy H. Thornburg, Atty. Gen. by Joan H. Byers, Sp. Deputy Atty. Gen., Raleigh, for the State.
John E. Shackelford, Asheville, for defendant Floyd Rufus Fie.
Malcolm Ray Hunter, Jr., Appellate Defender by Geoffrey C. Mangum, Asst. Appellate Defender, Raleigh, for defendant Steven Harverson.
This case brings to the Court the question of the standard to be applied when a defendant makes a motion that a judge be recused. Judge Martin in his concurring opinion in the Court of Appeals said that in his view "the burden is upon the party moving for disqualification to demonstrate objectively that grounds for disqualification actually exist. Such a showing must consist 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." Judge Martin relied, on State v. Duvall, 50 N.C.App. 684, 275 S.E.2d 842, rev'd on other grounds, 304 N.C. 557, 284 S.E.2d 495 (1981) and Love v. Pressley, 34 N.C.App. 503, 239 S.E.2d 574 (1977), disc. rev. denied, 294 N.C. 441, 241 S.E.2d 843 (1978). These cases support Judge Martin's position. Nevertheless, we also agree with Judge Wells that a party has a right to be tried before a judge whose impartiality cannot reasonably be questioned. Code of Judicial Conduct, Canon 3(C)1 (1973).
N.C.G.S. § 15A-1223 provides in pertinent part:..... (b) A judge, on 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 ..... (4) For any other reason unable to perform the duties required of him in an impartial manner.
It appears that under this section Judge Burroughs should not have been disqualified. This does not settle the matter. A judge may be disqualified for reasons other than those stated in the statute. We said in Ponder v. Davis, 233 N.C. 699, 706, 65 S.E.2d 356, 360 (1951):It is not enough for a judge to be just in his judgment; he should strive to make the parties and the community feel that he is just; he owes this to himself, to the law and to the position he holds.... "The purity and integrity of the judicial process ought to be protected against any taint of suspicion to the end that the public and litigants may have the highest confidence in the integrity and fairness *776 of the courts." (Quoting, Haslam v. Morrison, 113 Utah 14, 190 P.2d 520.)
N.C.G.S. § 5A-15 which governs plenary proceedings for criminal contempt provides that if "the criminal contempt is based upon acts before a judge which so involve him that his objectivity may reasonably be questioned, the order must be returned before a different judge." The standard for a criminal trial should be as high as for a criminal contempt proceeding. See State v. Mettrick, 305 N.C. 383, 289 S.E.2d 354 (1982).
When Judge Burroughs initiated the criminal process against the two defendants, a perception could be created in the mind of a reasonable person that Judge Burroughs thought the defendants were guilty of the crimes with which they were charged and that it would be difficult for the defendants to receive a fair and impartial trial before Judge Burroughs. It was thus error for Judge Downs not to recuse Judge Burroughs. This error requires a new trial.
We do not mean to imply that Judge Burroughs was actually prejudiced against the defendants or that he was in fact unable to preside fairly over the trial. The appearance of a preconception of the validity of the charges against these defendants is sufficient to require a new trial.