State of Louisiana v. Robbie Ray Frith

• Court: Louisiana Court of Appeal
• Decided: April 11, 2018
• Docket: KA-0017-1004
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

17-1004

STATE OF LOUISIANA

VERSUS

ROBBIE RAY FRITH

**********

APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST. MARTIN, NO. 11-241841, DIVISION “H” HONORABLE LORI A. LANDRY, DISTRICT JUDGE

ULYSSES GENE THIBODEAUX CHIEF JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Van H. Kyzar, Judges.

SENTENCES VACATED AND CASE REMANDED.

James E. Boren 830 Main Street Baton Rouge, LA 70802 Telephone: (225) 387-5788 COUNSEL FOR: Defendant/Appellant - Robbie Ray Frith

M. Bofill Duhé District Attorney – 16th Judicial District W. Claire Howington Assistant District Attorney – 16th Judicial District 300 Iberia Street – Suite 200 New Iberia, LA 70560 Telephone: (337) 369-4420 COUNSEL FOR: Plaintiff/Appellee - State of Louisiana Jane Hogan 310 North Cherry Street Hammond, LA 70401 Telephone: (985) 542-7730 COUNSEL FOR: Defendant/Appellant - Robbie Ray Frith THIBODEAUX, Chief Judge.

A jury convicted Robbie Ray Frith of five counts of aggravated incest,

in violation of La.R.S. 14:78.1.1 Defendant was subsequently sentenced to serve

thirty-five years at hard labor with the first twenty-five years served without

benefit of probation, parole, or suspension of sentence on counts one and five;

twenty-five years at hard labor without probation, parole, or suspension of sentence

with regard to counts two and three; and ten years at hard labor plus a $50,000 fine

with regard to count four. All of these sentences were ordered to run concurrently

and Defendant was given credit for time served.

In a previous appeal, Defendant alleged three assignments of error:

(1) that the trial court committed reversible error in denying Defendant’s challenge

for cause of Gilbert Blanchard; (2) that Defendant was incompetent to stand trial;

and (3) that the trial court improperly interjected its religious beliefs into

Defendant’s sentencing hearing. This court found the first two assignments of

error lacked merit, but remanded for resentencing due to the trial court’s failure to

observe the mandatory twenty-four-hour delay between ruling on a motion for new

trial and sentencing or obtaining a waiver of the delay. See State v. Frith, 15-630

(La.App. 3 Cir. 4/27/16) (unpublished opinion), writ denied, 16-1011 (La.

5/26/17), 221 So.3d 79. This court did not address the merits of Defendant’s claim

regarding the trial court’s interjection of its religious beliefs into Defendant’s

sentencing hearing.

1 We note that the crime of which Defendant was convicted has since been re-designated “aggravated crime against nature.” See 2014 La. Acts No. 177, § 3 and 2014 La. Acts No. 602, § 8. After remand and prior to resentencing, Defendant filed a “Motion to

Recuse Trial Court Judge” seeking mandatory recusal of the trial judge under

La.Code Crim.P. arts. 671(A)(1) and 671(A)(6). Both sections require recusal of a

trial judge when the judge is unable to conduct a fair and impartial trial, with

La.Code Crim.P. art. 671(A)(1) specifically being based on the judge being

“biased, prejudiced, or personally interested in the cause.”

The trial court held a hearing at which time it denied Defendant’s

motion to recuse without referring it to another judge and sentenced Defendant to

the exact same sentences he had previously received. Defendant objected to the

excessiveness of the sentences.

Defendant filed a “Motion for Reconsideration of Sentence,” arguing

his sentences were constitutionally excessive for a man of his advanced age

suffering from physical and mental health issues. His motion was denied.

Defendant now appeals his sentences, raising two assignments of

error: (1) the trial court erred in denying his motion to recuse without referring the

motion to another judge; and (2) the sentences are constitutionally excessive. For

the following reasons, we again vacate Defendant’s sentences and remand to the

trial court so that Defendant’s motion to recuse may be heard by a randomly

allotted judge pursuant to La.Code Crim.P. art. 675(B).

FACTS

On February 24, 2012, Defendant, Robbie Ray Frith, was charged with five counts of aggravated incest involving his five step-grandchildren, in violation of La.R.S. 14:78.1.1 Aside from count four, all other counts involved children under the age of thirteen. Counts two and three involved his two younger step-granddaughters, and Defendant was alleged to have kissed each of them inappropriately.

2 With respect to count four, involving his oldest step- granddaughter who was over the age of thirteen, Defendant was alleged to have made an inappropriate comment while she was wearing a bathing suit, licked icing off her finger inappropriately and touched her leg inappropriately. With respect to counts one and five, involving two step-grandsons, Defendant was alleged to have engage[d] in an ongoing pattern of indecent behavior with the two boys.

State v. Frith, p. 1.

Recusal

Defendant’s assertion that the trial court committed reversible error

when it denied his motion to recuse without referring the matter to another judge is

presented as a three-part argument: (1) the trial court applied the Louisiana Code

of Civil Procedure to a criminal proceeding; (2) the trial court’s conduct

demonstrated a personal bias against Defendant; and (3) the trial court failed to

follow the proper procedure in addressing the motion to recuse. This assignment

of error has merit and his sentences are vacated and the case remanded for the trial

court to follow the proper procedure in addressing the motion to recuse.

Initially, the trial court based its denial of Defendant’s motion to

recuse, at least in part, on its belief that “it’s a back-door effort to revisit the issues

that the courts have ruled on and/or have not ruled on.” Neither this court nor the

supreme court addressed the issue of whether the trial court’s repeated comments

invoking Christian scripture and ideology exhibited a judicial prejudice or bias

against Defendant.

Defendant’s motion to recuse alleged the trial judge revealed a

personal, religious bias against Defendant when she repeatedly invoked God and

Christian scripture during Defendant’s sentencing hearing. A few examples

3 include the trial court’s statement that “these children, the offense is an offense

against them, but the sin is a sin against God”; “[w]e are only made righteous

through Jesus Christ, if He’s your Lord and Savior”; and:

Those people who take care of the widows and children, the least of us shall be first in God’s Kingdom. And so we all have a special place in our heart for children. And so those are the things that are considered.

The trial court also blamed Defendant for allowing the devil to enter

his life:

You let the devil in when you first start looking at pornography, and that’s where that seed is planted. We’ve all heard, “When you let the Devil ride, he’s going to want to drive.” You gave him a foothold in your life, and it was him acting through you using you to perpetuate evil because he only comes to kill, steal, and destroy. And we open the door to him when we open the door to pornography.

The motion specifically invoked La.Code Crim.P. art. 671(A)(1) and

671(A)(6), both mandatory grounds for recusal based upon an inability to conduct

a fair and impartial trial. As the motion contained both accusations and factual

support which, if proven, would be mandatory grounds for recusal of the trial

judge, the motion should have been referred to another judge pursuant to La.Code

Crim.P. art. 674, which states:

A party desiring to recuse a trial judge shall file a written motion therefor assigning the ground for recusation. The motion shall be filed prior to commencement of the trial unless the party discovers the facts constituting the ground for recusation thereafter, in which event it shall be filed immediately after the facts are discovered, but prior to verdict or judgment. If a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion for hearing to another judge or to a judge ad hoc, as provided in Article 675.

4 As the basis for the motion to recuse is the alleged bias shown by the

trial court during Defendant’s sentencing, it would not have been possible for

Defendant to file his motion prior to trial. Defendant raised the issue immediately

in his direct appeal, as the case was no longer before the trial court once sentencing

had occurred and notice of intent to appeal had been made. Once the supreme

court denied Defendant’s writ on May 26, 2017, Defendant fax-filed his motion to

recuse the same day. Accordingly, Defendant could not have filed his motion to

recuse in a timelier fashion. In Kidd v. Caldwell, 371 So.2d 247, 252 (La.1979),

the supreme court acknowledged “the judge sought to be recused has a duty to

stand aside and to appoint a judge ad hoc to pass upon the validity of the

recusation.”

At the resentencing hearing, defense counsel stated:

Well, I think the only thing to add, Your Honor, to just emphasize, is that I believe when a motion to recuse is filed urging the grounds that we urged that Your Honor cannot rule upon it and that you must refer the motion to recuse to another judge.

The trial court responded that it thought “that procedure is when you

list something under 151. I don’t see this is one of those things.” As noted by

Defendant, this is clearly a reference to La.Code Civ.P. art. 151, which lists the

grounds for recusal of a judge in a civil case. The trial court’s reliance on a Code

of Civil Procedure article during a criminal proceeding is error. Furthermore,

Defendant’s claims in his motion to recuse, if proven, certainly fall into one of the

grounds for recusal enumerated in La.Code Crim.P. art. 671. However, we note

that “[t]here is a presumption that a trial judge is impartial, and in order to obtain a

recusation based on bias, prejudice, and personal interest, the party seeking the

recusation must establish more than conclusory allegations.” State v. Anderson,

5 96-1515, p. 4 (La.App. 3 Cir. 4/29/98), 714 So.2d 766, 768, writ denied, 98-1374

(La. 10/9/98), 726 So.2d 25. The motion to recuse provides more than mere

conclusory allegations, as it provides multiple examples of the trial court’s

invocation of Christian scripture and ideology.

In U.S. v. Bakker, 925 F.2d 728, 740 (4th Cir. 1991), the Fourth

Circuit stated “[c]ourts, however, cannot sanction sentencing procedures that create

the perception of the bench as a pulpit from which judges announce their personal

sense of religiosity and simultaneously punish defendants for offending it.” The

defendant in Bakker was a televangelist convicted of fraud and conspiracy. The

case mentions only a single comment by the trial court which was sufficient to

constitute an abuse of discretion which required the defendant to be resentenced by

a different judge: “‘He had no thought whatever about his victims and those of us

who do have a religion are ridiculed as being saps from money-grubbing

preachers or priests.’” Id. A neutral judge hearing Defendant’s motion to recuse

may find the trial court’s statements likewise indicate a personal bias which

requires resentencing carried out by a different judge.

As noted in La.Code Crim.P. art. 674, “[i]f a valid ground for

recusation is set forth in the motion, the judge shall either recuse himself, or refer

the motion for hearing to another judge or to a judge ad hoc, as provided in Article

675.” Defendant’s motion provides clear, fact-based allegations that the trial court

is biased or prejudiced against him and that the trial court cannot conduct a fair and

impartial hearing. Accordingly, the motion should have been referred to another

judge.

Under La.Code Crim.P. art. 673, a trial court’s authority to act on a

case ceases when a motion to recuse is filed. Once Defendant filed his motion to

6 recuse, the trial judge lacked authority to sentence him until another judge had

ruled on the motion to recuse. Because the motion was improperly denied without

referral to another judge pursuant to La.Code Crim.P. art. 675, the trial court

lacked authority to sentence Defendant. Therefore, the sentences imposed upon

Defendant on May 31, 2017, should be vacated, and the case should be remanded

to the trial court so that the proper procedure for ruling on Defendant’s motion to

recuse may be followed.

Excessiveness of Sentence

Because Defendant’s sentences are vacated and the case remanded to

the trial court, this court need not consider Defendant’s claim that his sentences are

excessive at this time.

CONCLUSION

Defendant’s sentences are vacated, and the case is remanded to the

trial court so that Defendant’s motion to recuse can be ruled upon following the

proper procedure enunciated in La.Code Crim.P. arts. 671, et seq.