State v. Riordan

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMSC-022

Filing Date: May 21, 2009

Docket No. 31,586

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

J. TYRONE RIORDAN,

Defendant-Appellant.

INTERLOCUTORY APPEAL FROM THE DISTRICT COURT OF LINCOLN
COUNTY

Karen L. Parsons, District Judge

Gary C. Mitchell, P.C.
Gary C. Mitchell
Mandy Kaye Waldrop Denson
Ruidoso, NM

for Appellant

Gary K. King, Attorney General
Martha Anne Kelly, Assistant Attorney General
Santa Fe, NM

for Appellee

OPINION

PER CURIAM.

{1} Defendant J. Tyrone Riordan has applied for interlocutory appeal of the trial court’s
order denying his motion requesting that Judge Karen Parsons recuse herself in three cases
in which he is the defendant, including a case in which he was charged with capital murder.
Defendant argues that because he was subsequently charged with conspiracy to commit

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assault with a deadly weapon against Judge Parsons, she should recuse herself in the three
pending cases to avoid an appearance of impropriety. We conclude that Judge Parsons did
not abuse her discretion in denying Defendant’s motion and therefore deny Defendant’s
application for interlocutory appeal.

BACKGROUND

{2} The record shows that Defendant has charges pending against him in three cases
assigned to Judge Parsons. In the first case, filed on May 18, 2007, Defendant was charged
with capital murder, tampering with evidence, and conspiracy to commit tampering with
evidence. In the second case, filed on June 29, 2007, Defendant was charged with five
counts of criminal sexual penetration and five counts of contributing to the delinquency of
a minor. In the third case, filed on November 30, 2007, Defendant was charged with escape
or attempted escape from jail.

{3} On June 26, 2008, while these cases were pending, Defendant was charged with
conspiring to commit an assault with a deadly weapon on Judge Parsons. When the
conspiracy to commit assault case was filed, all the judges in the Twelfth Judicial District,
including Judge Parsons, recused themselves from hearing the case. Defendant then filed a
motion in the trial court requesting that Judge Parsons recuse herself from hearing his other
three pending cases. Judge Parsons denied the motion, but certified for interlocutory appeal
the issue of whether her status as an alleged victim in the conspiracy to commit assault case
required her to recuse in the three pending cases to avoid creating an appearance of
impropriety. Defendant filed an application for interlocutory appeal in the Court of Appeals,
which denied the application pursuant to State v. Smallwood, 2007-NMSC-005, ¶ 10, 141
N.M. 178, 152 P.3d 821 (holding that this Court has jurisdiction to hear interlocutory appeals
in cases involving a sentence of life imprisonment or death). Defendant then filed his
application for interlocutory appeal in this Court.

DISCUSSION

{4} Pursuant to NMSA 1978, Section 39-3-3(A) (1972), Defendant seeks interlocutory
appeal in all three cases, including the capital case. “Allowance of an interlocutory appeal
is discretionary with the appellate court.” State v. Hernandez, 95 N.M. 125, 126, 619 P.2d
570, 571 (Ct. App. 1980). We first discuss the application in the capital case before
addressing the applications in the non-capital cases.

THE CAPITAL CASE

{5} This Court is “vested by law with exclusive appellate jurisdiction in cases involving
a sentence of life imprisonment or death,” which extends under Section 39-3-3(A) to
jurisdiction over interlocutory appeals in such cases. Smallwood, 2007-NMSC-005, ¶ 10.
In the case before us, Defendant was charged with capital murder under NMSA 1978,
Section 30-2-1 (1994). At the time Defendant allegedly committed the offense resulting in

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the capital murder charge, a conviction for a capital offense was punishable by a sentence
of life imprisonment or death. See NMSA 1978, § 31-18-14(A) (1993, prior to 2009
amendments). Accordingly, because Defendant was charged with a capital crime, this Court
has appellate jurisdiction to review Defendant’s application for interlocutory appeal.

{6} Regarding Defendant’s motion requesting that Judge Parsons recuse herself from his
cases, recusal rests within the discretion of the trial judge, and will only be reversed upon
a showing of an abuse of that discretion. Demers v. Gerety, 92 N.M. 749, 752, 595 P.2d 387,
390 (Ct. App. 1978), rev’d in part on other grounds, 92 N.M. 396, 406, 589 P.2d 180, 190
(1978). “An abuse of discretion occurs when the ruling is clearly against the logic and effect
of the facts and circumstances of the case. We cannot say the trial court abused its discretion
by its ruling unless we can characterize it as clearly untenable or not justified by reason.”
State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation marks
and citations omitted). Although Defendant argues that the question before us is one of law
that should be reviewed de novo, disqualification requires an examination of the specific
facts in the case. See United States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008).

{7} Defendant argued to the trial court that Judge Parsons’ recusal was required to avoid
an appearance of impropriety. In addition, Defendant argues in his application that both the
New Mexico Constitution and the Victims of Crime Act give Judge Parsons a
constitutionally vested interest in the outcome of the conspiracy to commit assault case,
which prevents her from being impartial. See N.M. Const. art. II, § 24; NMSA 1978, §§ 31-
26-1 to 31-26-14 (1994, as amended through 2005).

{8} Rule 21-200 NMRA provides that “[a] judge shall avoid impropriety and the
appearance of impropriety in all the judge’s activities.” The committee commentary to Rule
21-200 defines an appearance of impropriety as “conduct [that] would create in reasonable
minds a perception that the judge's ability to carry out judicial responsibilities with integrity,
impartiality and competence is impaired[.]” Consistent with this admonition, Rule 21-
400(A) NMRA states that “[a] judge is disqualified and shall recuse himself or herself in a
proceeding in which the judge's impartiality might reasonably be questioned[.]”

{9} Stating that no New Mexico case is directly on point, Defendant relies on United
States v. Greenspan, 26 F.3d 1001 (10th Cir. 1994), to argue that because Judge Parsons
knew she was allegedly the intended victim of a conspiracy to commit assault with a deadly
weapon, her impartiality toward Defendant might reasonably be questioned, and thus her
recusal was required. In Greenspan, shortly before a federal judge was scheduled to
sentence a defendant on drug charges, the FBI told the judge of an alleged conspiracy to
assassinate him and reported that the defendant in the drug case was involved in the
conspiracy. Id., 26 F.3d at 1006. The Tenth Circuit held that the judge should have recused
himself under 28 U.S.C. Section 455(a), which, like Rule 21-400, states that “[a]ny justice,
judge, or magistrate judge of the United States shall disqualify himself in any proceeding in
which his impartiality might reasonably be questioned.” See Greenspan, 26 F.3d at 1007.

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{10} The Tenth Circuit applied “[S]ection 455(a)’s objective standard” to “decide whether
the judge’s impartiality might reasonably have been questioned in this particular case.” Id.
at 1006. The court acknowledged that “threats or attempts to intimidate a judge will not
ordinarily satisfy the requirements for disqualification[.]” Id. Indeed, the court stated that
“if a death threat is communicated directly to the judge by a defendant, it may normally be
presumed that one of the defendant’s motivations is to obtain a recusal[.]” Id. However, in
reaching its conclusion that the judge should have recused himself, the court focused on the
judge’s knowledge of the threat and its effect on the totality of the circumstances
surrounding the sentencing hearing. Id. Specifically, the court observed that after being
told of the threat, the judge had “accelerated the date of Greenspan’s sentencing, for the
stated reason that the court wanted to get Greenspan into the penitentiary system as quickly
as possible,” and that the judge had “refused to grant a continuance of the sentencing hearing
even though defendant’s counsel had been appointed only two days before the sentencing
date.” Id. Under those circumstances, the court reasoned, “[a]lthough any one of these
actions standing alone would not provide sufficient reason to believe a judge was biased
against the defendant, when considered in light of the judge’s knowledge of the alleged
threats against him, these factors might provide further bases for questioning the court’s
impartiality.” Id. Thus, the court was convinced by the record that “the judge’s impartiality
might reasonably be questioned,” and held that his recusal was required. Id.

{11} The holding in Greenspan does not persuade us that Judge Parsons should have
recused herself from presiding over Defendant’s other three pending cases. Judge Parsons’
knowledge of the threat against her is not, in itself, a reason to require disqualification.
Indeed, a different federal appellate court has specifically noted that it was “wary” of the
Tenth Circuit’s focus on the judge’s awareness of the threat against him described in
Greenspan. In re Basciano, 542 F.3d 950, 957 n.6 (2nd Cir. 2008). In Basciano, in
determining whether a trial judge must recuse when learning of evidence that the defendant
has plotted or threatened to kill the judge, the Second Circuit wrote that “we must focus first
on whether ‘an objective, disinterested observer[,] fully informed of the underlying facts,
[would] entertain significant doubt that justice would be done absent recusal.’” Id. at 956
(quoting United States v. Amico, 486 F.3d 764, 775 (2nd Cir. 2007)). The court stated that
when there is a “significant possibility” that the defendant is attempting to manipulate the
system, deference should be given to the decision of the trial judge. Id. at 957. In
determining whether an objective observer would conclude that a judge’s impartiality was
questionable, an appellate court should look to see how the judge arrived at the decision not
to recuse and then should review the judge’s actions for bias. Id.

{12} In the case before us, the State argued to the trial court that Defendant’s conduct of
refusing to leave his cell for court proceedings, refusing to confer with his attorneys, refusing
to eat, and refusing medical treatment demonstrated a pattern of obstruction and delay.
Thus, there was evidence before the trial court that Defendant may have been attempting to
manipulate the system. In addition, in contrast to Greenspan, the judge found “that no
objective evidence of bias on the part of the Court has been presented and that under the
circumstances of this case there is no appearance of impropriety for the Court to remain on

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these cases.”

{13} In addition, we are persuaded that recusal should not automatically be required when
a judge is threatened. See Basciano, 542 F.3d at 956 (listing cases concluding that recusal
is not ordinarily required when a judge faces threats). State v. Robinson, 2008-NMCA-036,
¶ 10, 143 N.M. 646, 179 P.3d 1254 is also instructive. In Robinson, our Court of Appeals
addressed the situation of when threats against a prosecutor require the prosecutor’s removal
and held that a prosecutor does not have to be removed from a case simply because the
defendant has threatened the prosecutor. Id., ¶ 24. The court reasoned that “as [a] matter
of policy, a defendant does not create a disqualifying interest and cannot choose his or her
prosecutor for an underlying offense by the use of threats.” Id. Of direct import to the issue
before us, the Court of Appeals quoted Resnover v. Pearson, 754 F. Supp. 1374, 1388-89
(N.D. Ind. 1991) for the principle that “[t]he law is clear that a party, including a defendant
in a criminal case, cannot drive a state trial judge off the bench in a case by threatening him
or her.”). 2008-NMCA-036, ¶ 24. We endorse this statement as a sound principle to apply
to the issue of recusal when a judge is threatened by a defendant.

{14} Consistent with the view that absent some showing of bias, threats alone do not
require recusal, we have held that in the context of contempt hearings, recusal is only
required “when a judge has become so embroiled in the controversy that he cannot fairly and
objectively hear the case[.]” State v. Stout, 100 N.M. 472, 475, 672 P.2d 645, 648 (1983).
We agree, therefore, with the requirement in the federal cases that the facts and
circumstances of the case must demonstrate that “the defendant’s behavior has resulted in
actions by the judge which might be viewed by ‘an objective, disinterested observer’ as
evidencing bias.” Basciano, 542 F.3d at 957.

{15} Neither party provides us with a detailed account of the evidentiary hearing on the
recusal motion, and we note that it is the appellant’s burden under Rule 12-203(B) NMRA
to provide this Court with “a statement of the facts necessary to an understanding of the
controlling question of law[.]” However, the State represents that Defendant “offered no
examples of actual bias” and the judge stated that she had no personal bias or animosity
toward Defendant. Moreover, in the order denying Defendant’s motion, the court found
“that no objective evidence of bias on the part of the Court has been presented and that under
the circumstances of this case there is no appearance of impropriety for the Court to remain
on these cases.” Under these circumstances, where the judge held a hearing at which no
evidence was presented that the judge demonstrated bias against Defendant, we presume
Judge Parsons correctly declined to recuse herself from hearing Defendant’s cases. See State
v. Aragon, 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 (stating that there is a
presumption of correctness in the rulings or decisions of the trial court, and the party
claiming error bears the burden of showing such error).

{16} Defendant also argues that Judge Parsons’ status as an alleged victim in an unrelated
case involving Defendant (in which Judge Parsons has recused) gives her “a constitutionally
vested interest” in the case, which requires recusal in the pending cases under Rule 21-

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400(A). Specifically, Defendant contends that because Article II, Section 24 of the New
Mexico Constitution and the Victims of Crime Act, §§ 31-26-1 to 31-26-14, provide victims
of crimes with additional rights in court proceedings, this unique constitutional provision
makes federal case law inapplicable. Defendant’s application does not indicate, however,
that this argument was made to the trial court, and the court does not address it in its order.
Assuming that this argument was preserved, we are not persuaded that Article II, Section 24
of either the New Mexico Constitution or the Victims of Crime Act alters our analysis of this
case.

{17} Both Article II, Section 24 and Section 31-26-3 provide victims of specific crimes
listed in the Constitution and the Act with defined rights in judicial proceedings. Judge
Parsons is the alleged victim of conspiracy to commit aggravated battery, criminal damage
to property, and possession of a deadly weapon. None of these offenses are listed in Article
II, Section 24 or Section 31-26-3, for which rights are granted. Perhaps more importantly,
Judge Parsons does not have any “victim’s rights” in Defendant’s cases that are pending
before her. As a result, neither the New Mexico Constitution nor the Victims of Crime Act
gives Judge Parsons any additional rights that affect our analysis or would require her
recusal under Rule 21-400. Accordingly, we deny Defendant’s application for interlocutory
appeal from the trial court’s denial of his motion requesting her recusal in the capital case.

THE NON-CAPITAL CASES

{18} As discussed above in Smallwood, we concluded that “the legislature intended for
us to have jurisdiction over interlocutory appeals in situations where a defendant may
possibly be sentenced to life imprisonment or death.” 2007-NMSC-005, ¶ 11.

{19} The offenses with which Defendant was charged in the other two cases assigned to
Judge Parsons are fourth degree felonies, not capital crimes. Therefore, jurisdiction over the
interlocutory appeals from the trial court’s order in those cases lies in the Court of Appeals,
and we deny the application on those grounds. See NMSA 1978, § 34-5-8(A)(3) (1983); §
39-3-3. Although the Court of Appeals denied Defendant’s application, believing that it
lacked jurisdiction, Defendant did not petition this Court for a writ of certiorari in those
cases. We note, however, that such a petition would have been denied for the reasons set out
in this opinion.

CONCLUSION

{20} For the foregoing reasons, Defendant’s application for interlocutory appeal is denied.

{21} IT IS SO ORDERED.

__________________________________
EDWARD L. CHÁVEZ, Chief Justice

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__________________________________
PATRICIO M. SERNA, Justice

__________________________________
PETRA JIMENEZ MAES, Justice

__________________________________
RICHARD C. BOSSON, Justice

__________________________________
CHARLES W. DANIELS, Justice

Topic Index for State v. Riordan, No. 31,586

AE APPEAL AND ERROR
AE-AJ Appellate Jurisdiction
AE-IA Interlocutory Appeal
AE-ST Standard of Review

CA CRIMINAL PROCEDURE
CA-CI Capital Punishment
CA-EH Evidentiary Hearing
CA-SN Sentencing

CL CRIMINAL LAW
CL-AS Assault
CL-CS Conspiracy
CL-MU Murder

CT CONSTITUTIONAL LAW
CT-FT Fair Trial

JG JUDGES
JG-AD Abuse of Discretion
JG-CC Code of Judicial Conduct
JG-DS Disqualification
JG-EX Excusal or Recusal
JG-PC Propriety of Conduct

RE REMEDIES
RE-CR Criminal Contempt

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