State v. List

#24972-a-PER CURIAM

2009 SD 73

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

DENNIS CHARLES LIST, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT
OF THE FIRST JUDICIAL CIRCUIT
YANKTON COUNTY, SOUTH DAKOTA

* * * *

HONORABLE GLEN W. ENG
Judge

* * * *

LAWRENCE E. LONG
Attorney General

FRANK GEAGHAN
Assistant Attorney General Attorneys for plaintiff
Pierre, South Dakota and appellee.

DOUGLAS R. KETTERING Attorney for defendant
Yankton, South Dakota and appellant.

* * * *

CONSIDERED ON BRIEFS
ON MARCH 23, 2009

OPINION FILED 8/12/09
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PER CURIAM

[¶1.] Dennis List appeals his conviction for accessory to possession of a

controlled substance. We affirm.

FACTS

[¶2.] List, a sixty-year-old resident of Yankton, South Dakota, was

romantically involved for a time with a twenty-seven-year-old woman named Sara

Auch. Auch had a history of mental illness and substance abuse and was placed on

probation for a forgery offense in 2005. Auch used methamphetamine and

methadone during her probation, which exacerbated her mental health problems

and resulted in her placement at a treatment center and halfway house in

Watertown, South Dakota. Auch was eventually transferred back to custody in

Yankton and, in 2006, her probation was revoked and she was sentenced to three

years in the Women’s Penitentiary. Auch was on parole in January 2008, when she

was taken into custody as a result of a domestic disturbance. Her urinalysis tested

positive for the presence of methamphetamine. Because of her behavior while in

custody, Auch was transferred to the Human Services Center for a mental health

evaluation. On January 23, 2008, List visited Auch at the Human Services Center

and was caught by staff in the act of providing Auch with several methadone

tablets. The incident was reported to the authorities and a prosecution was

commenced against List.

[¶3.] List was initially charged by complaint with one count of distribution

of a controlled substance. Plea bargaining ensued and he ultimately pleaded guilty

to one count of accessory to possession of a controlled substance.
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[¶4.] Following List’s entry of his plea, a presentence investigation was

conducted. The report informed the court of Auch’s parole revocation and the

difficulties she had experienced with substance abuse while on probation and

parole. The report further disclosed Auch’s allegations that List provided her with

oxycontin and methadone and used methamphetamine with her for years in return

for sexual favors. Auch specifically named List as the person who provided her with

numerous methadone tablets during her stay at the treatment center in Watertown.

[¶5.] List was sentenced on July 15, 2008. Pursuant to the plea bargain, the

State recommended a suspended imposition of sentence and a period of three years

of probation along with a $1,000 fine. The State also recommended an extended

period of house arrest. List addressed the court during sentencing and expressed

remorse for his offense and the embarrassment it had caused his family. Before

imposing sentence, the court made the following comments that are the genesis of

this appeal:

. . . The court many times is presented with cases and the
court only peripherally knows victims.

In this case, the victim, Sara Auch, the court knows very
well because the court dealt with her on numerous
occasions.

We attempted to guide her through recovery at many
different levels, many different kinds of institutions and
she had a very difficult time.

She has not just addiction issues, but also mental health
issues that have to be dealt with and, so, she is a person
who this court worked with over a long period of time, and
ultimately this court revoked her sentence and sentenced
her to three years in the pen[itentiary] because she could
not comply with what this court required.

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Now, the reason I bring that up is because I think that
you contributed to her failure. You contributed to her
inability to stay sober because you provided her with the
drugs that allowed her to continue her addiction and also
to avoid the compliance with this court’s order.

The court went on to state:

. . . I abhor people who take advantage of the
disadvantaged.

I think you [preyed] upon Ms. Auch knowing that she had
these issues. Now, whether you loved her or not, I don’t
know, but providing a person with the ability to continue
an addiction is not my view of any love.

[¶6.] Following these remarks and some additional comments, the court

sentenced List to three years in the penitentiary and a fine of $1,000 plus costs and

restitution. List appeals, arguing that the trial court’s comments at sentencing

demonstrate bias and prejudice, depriving him of due of process of law.

DECISION

[¶7.] We recently examined the issue of judicial bias and prejudice in State

v. Page, 2006 SD 2, 709 NW2d 739. Citing Page, the State argues that List waived

his claims of bias and prejudice by pleading guilty and by failing to seek a change of

judge during the trial court proceedings. Page provided that entry of a guilty plea

waived the “statutory right” to seek recusal of a judge. See Page, 2006 SD 2, ¶ 14,

709 NW2d at 750 (emphasis added)(citing State v. Burgers, 1999 SD 140, ¶¶ 11 –

13, 602 NW2d 277, 279 – 80). However, Page also cautioned that, although the

opportunity to disqualify a judge is statutory, and not a constitutional right, it “’may

be implicit in [the] right to a fair trial.’” Id., 709 NW2d at 749 (quoting State v.

Hoadley, 2002 SD 109, ¶ 32, 651 NW2d 249, 257). This recognition of a potential

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due process concern was recently reaffirmed by the Supreme Court in reviewing a

claim of judicial bias. In its analysis, the Court observed that, “[i]t is axiomatic that

‘[a] fair trial in a fair tribunal is a basic requirement of due process.’” Caperton v.

Massey Coal Co., Inc., __ US __, __, No. 08-22, 2009 WL 1576573, at *6 (June 8,

2009)(quoting In re Murchinson, 349 US 133, 136, 75 SCt 623, 625, 99 LEd 942

(1955)). 1

[¶8.] Presumably, in light of this constitutional concern in a capital case, we

declined the State’s invitation to invoke waiver in Page, and we reviewed the claim

of judicial bias under the plain error doctrine. We did, however, caution that: “Given

the level of deference ordinarily afforded a circuit judge’s decision to sit on a case, it

would be rare for this Court to review such a decision under the rubric of plain

error.” Page, 2006 SD 2, ¶ 15, 709 NW2d at 750. Nevertheless, considering the fact

that List’s claimed ground for disqualification did not arise until after the time for

filing an affidavit of statutory disqualification had expired, and considering the fact

that List is raising a due process issue, we elect to review the issue for plain error.

[¶9.] We did not find plain error in Page because we found no error in the

circuit court’s decision to sentence the defendant. Id. ¶ 16. In our analysis, we

applied the following standards for identifying judicial bias or prejudice:

“The decision to preside over a case lies within the sound
discretion of the trial judge.” As we have consistently
stated, this Court presumes a judge was impartial absent
a specific and substantial showing to the contrary. The

1. At the same time, the Court “recognized, however, [that] ‘most matters
relating to judicial disqualification [do] not rise to a constitutional level.’”
Caperton, __ US at __, 2009 WL 1576573, at *6 (quoting FTC v. Cement
Institute, 333 US 683, 702, 68 SCt 793, 92 LEd 1010 (1948).

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Code of Judicial Conduct directs a judge to disqualify
himself or herself where “the judge’s impartiality might
reasonably be questioned” due to his or her “personal bias
or prejudice concerning a party . . . .” In regard to judicial
bias, we have recognized that:

Opinions formed by the judge on the basis of
facts introduced or events occurring in the
course of the current proceedings, or of prior
proceedings, do not constitute a basis for a
bias or partiality motion unless they display
a deep-seated favoritism or antagonism that
would make fair judgment impossible.

Hoadley, 2002 SD 109, ¶ 32, 651 NW2d at 257 (quoting
Von Kahl v. United States, 242 F3d 783, 793 (8thCir
2001)(quoting Liteky v. United States, 510 US 540, 114
SCt 1147, 127 LEd2d 474 (1994))). Similarly, this Court
defined prejudice in Hoadley as:

The attitude of personal enmity towards the
party or in favor of the adverse party to the
other party’s detriment. It is not the mere
possession of views regarding the law or the
conduct of a party. Prejudice is in the
personal sense rather than in the judicial
sense and refers to a mental attitude or a
disposition of the judge towards a party. In
order for the alleged bias and prejudice to be
disqualifying, it must stem from an
extrajudicial source and result in an opinion
on the merits on some basis other than what
the judge learned from participation in the
case.

Id. ¶ 33, 651 NW2d at 258 (citing In re C.N.H., 998 SW2d
553, 560 (MoCtApp 1999)).

Page, 2006 SD 2, ¶ 16, 709 NW2d at 750 – 51 (some citations omitted).

[¶10.] As in Page, the trial court’s decision to preside over List’s case was

within its sound discretion. This Court must presume that the trial court was

impartial absent a specific and substantial showing to the contrary. List has made

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no such showing. The comments of the trial court at sentencing reflect knowledge

gained and opinions formed from facts introduced or disclosed in the presentence

investigation in the proceedings against List or in the prior proceedings against

Auch. Under Page, those facts and opinions do not constitute a basis for finding

bias or partiality. See id. List has also made no showing of deep-seated favoritism

or antagonism by the trial court that made fair judgment impossible. Certainly

there has been no showing of “personal enmity” toward List which would have

required evidence of a personal and deep seated hatred. See The American

Heritage College Dictionary 457 (3rd ed 1997)(defining “enmity” as “[d]eep-seated,

often mutual, hatred.”). In this vein, we note that the court’s strongest comment

was not directed toward List personally, but was a general expression of abhorrence

regarding taking advantage of “the disadvantaged.” This was nothing more than a

reflection of the values of our society. Further, the court’s comments failed to

disclose personal favoritism for Auch. Instead, they expressed disappointment with

the lack of progress in her recovery efforts as learned by the court in the course of

its official duties. These comments are no different than those expressed every day

by sentencing judges who are considering the impact of criminal conduct on the

victims of crime.

[¶11.] List has shown that the trial court possessed views regarding the law

and List’s conduct that led to the criminal proceedings against him and the prior

proceedings against Auch. However, “mere possession of views regarding the law or

the conduct of a party” does not constitute disqualifying prejudice. Page, 2006 SD 2,

¶ 16, 709 NW2d at 751 (emphasis added) (quoting Hoadley, 2002 SD 109, ¶ 33, 651

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NW2d at 258). Here, List has failed to show any examples of bias or prejudice in

the personal sense rather than the judicial sense or that the trial court had a

particular mental attitude or disposition toward him. It is also notable that List

has made no showing of trial court bias or prejudice stemming from extrajudicial

sources.

[¶12.] List, however, contends that it was improper for the trial court to rely

on knowledge acquired during the prior criminal proceedings against Auch . This

contention was rejected by the Supreme Court in Liteky, 510 US 540, 114 SCt 1147,

127 LEd2d 474. 2 In Liteky, defendants charged with willful destruction of

government property in connection with a protest moved to disqualify the district

judge based upon events that occurred in an earlier case against one of the

defendants before the same judge. 3 The judge denied the motion to disqualify on

the basis that matters arising from judicial proceedings (such as the prior case)

were not a proper basis for recusal. The defendants were convicted and appealed,

challenging the denial of the motion to recuse. Their convictions were affirmed by

the Court of Appeals and certiorari was granted to consider recusal under the

“extrajudicial source doctrine.”

2. Liteky was decided under a federal statute that required disqualification for
the same ground List asserts here; i.e., when “the judge before whom the
matter is pending has a personal bias or prejudice either against him or in
favor of any adverse party . . ..” Liteky, 510 US at 544, 114 SCt at 1152
(citing 28 USC § 144).

3. The earlier case also arose out of a protest and the trial took place
approximately eight years before the trial in Liteky. Liteky, 510 US at 542,
114 SCt at 1150-51.

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[¶13.] The extrajudicial source doctrine provides that, to be disqualifying,

trial court bias and prejudice must arise from “an extrajudicial source.” Liteky, 510

US at 544 – 545; 114 SCt at 1152. The Court clarified in Liteky that, although an

“extrajudicial source” is a “factor” to consider in identifying disqualifying bias or

prejudice, it is not always determinative (though it often is). See Liteky, 510 US at

554 – 55, 114 SCt at 1157. More pertinent to List’s case, the Court explained that:

[N]ot subject to deprecatory characterization as “bias” or
“prejudice” are opinions held by judges as a result of what
they learned in earlier proceedings. It has long been
regarded as normal and proper for a judge to sit in the
same case upon its remand, and to sit in successive trials
involving the same defendant.

Liteky, 510 US at 551, 114 SCt at 1155. The Court elaborated:

[O]pinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current
proceedings, or of prior proceedings, do not constitute a
basis for a bias or partiality motion unless they display a
deep-seated favoritism or antagonism that would make
fair judgment impossible. Thus, judicial remarks during
the course of a trial that are critical or disapproving of, or
even hostile to, counsel, the parties, or their cases,
ordinarily do not support a bias or partiality challenge.

Liteky, 510 US at 555, 114 SCt at 1157 (emphasis added).

[¶14.] These passages from Liteky make clear that opinions held or formed by

a judge in a case that result from something the judge learned in prior judicial

proceedings do not alone establish judicial bias or prejudice. Liteky was followed by

this Court in Hoadley, 2002 SD 109, ¶ 33, 651 NW2d at 257 – 58 and later in Page,

2006 SD 2, ¶ 16, 709 NW2d 739 at 751. Both Hoadley and Page specifically quoted

Liteky in stating that, “[O]pinions formed by the judge on the basis of facts

introduced or events occurring in the course of . . . prior proceedings, do not

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constitute a basis for a bias or partiality motion[.]” Page, 2006 SD 2, ¶ 16, 709

NW2d at 751 (quoting Hoadley, 2002 SD 109, ¶ 32, 651 NW2d at 257).

[¶15.] The facts and procedural scenario in Page also fail to support List’s

argument that bias and prejudice resulted from the trial court’s experience in the

prior case involving Auch. Page and two codefendants committed a murder.

Although the three codefendants were separately prosecuted, the same circuit court

judge presided over all three cases. One codefendant was tried by a jury and

sentenced to life in prison and another codefendant pleaded guilty and was

sentenced to death. Page also pleaded guilty and was sentenced to death. On

appeal, he argued that the circuit court should have recused itself from sentencing

him after imposing the death penalty on his codefendant because the judge

developed empathy and sympathy for the victim through its sentencing of the

codefendant. Page, 2006 SD 2, ¶ 13, 709 NW2d at 749. Page asserted that these

feelings compromised the judge’s ability to sentence him in an objective and neutral

manner. Id. This is very similar to the argument List presents here. However, this

Court rejected the argument in Page, reasoning:

As grounds for disqualification, Page contends the circuit
judge exhibited empathy and/or sympathy for the victim
and did not sufficiently consider mitigation evidence.
These arguments, however, do not establish a deep-seated
antagonism against Page by the circuit judge or suggest
Page was prejudiced from an extrajudicial source. Absent
such a showing that a fair judgment was impossible, it
was not error for the circuit judge to sentence Page after
sentencing his codefendant Piper, and therefore, Page has
failed to show plain error.

Page, 2006 SD 2, ¶ 17, 709 NW2d at 751. List has similarly failed to show that a

fair judgment was impossible.

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[¶16.] Based upon the foregoing, we hold that List has failed to establish trial

court bias or prejudice in sentencing constituting a denial of due process of law. The

information at issue was obtained in the course of a prior judicial proceeding and

from the presentence investigation in this proceeding, which gave List the

opportunity to respond. Although we have some concern with the court’s expression

of “abhorrence,” we note that it was an isolated comment and we reiterate that it

was not addressed to List personally, but was a general reference to those taking

advantage of the disadvantaged. Based upon our review of the entire record, we do

not believe that the comments by the court during sentencing reflected such a deep-

seated antagonism against List as to make a fair judgment impossible. Cf. Sentis

Group, Inc. v. Shell Oil Company, 559 F3d 888, 904 – 05 (8thCir 2009)(finding an

appearance of trial court bias or prejudice making a fair judgment impossible where

the court directed profanities at the plaintiff or the plaintiff’s’ counsel over fifteen

times in the course of numerous conferences and hearings, denied the plaintiffs a

meaningful opportunity to respond during a sanctions hearing, misconstrued its

own discovery orders and cut off the plaintiffs’ attempts to explain them). Rather

we hold that the court’s comments are of the type: “Not establishing bias or

partiality [but constituting] expressions of impatience, dissatisfaction, annoyance,

and even anger, that are within the bounds of what imperfect men and women, even

after having been confirmed as . . . judges, sometimes display.” Liteky, 510 US at

555 – 56, 114 SCt at 1157. After all:

The Judge who presides at a trial may, upon completion
of the evidence, be exceedingly ill disposed towards the
defendant, who has been shown to be a thoroughly
reprehensible person. But the judge is not thereby

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recusable for bias or prejudice, since his knowledge and
the opinion it produced were properly and necessarily
acquired in the course of the proceedings, and are indeed
sometimes (as in a bench trial) necessary to completion of
the judge’s task.

Id. at 550 – 51, 114 SCt at 1155.

[¶17.] Affirmed.

[¶18.] GILBERTSON, Chief Justice, KONENKAMP, ZINTER,

MEIERHENRY, Justices, and SABERS, Retired Justice, participating.

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