State v. Dailey

2006 ND 184, 721 N.W.2d 29, 2006 N.D. LEXIS 188, 2006 WL 2439731
CourtNorth Dakota Supreme Court
DecidedAugust 24, 2006
Docket20060030
StatusPublished
Cited by9 cases

This text of 2006 ND 184 (State v. Dailey) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Dailey, 2006 ND 184, 721 N.W.2d 29, 2006 N.D. LEXIS 188, 2006 WL 2439731 (N.D. 2006).

Opinion

CROTHERS, Justice.

[¶ 1] Todd Dailey appeals from a criminal judgment entered after a jury found him guilty of driving under the influence and manslaughter. We conclude the district court’s statements after the jury returned its verdict do not indicate the court was biased or prejudiced against Dailey and the district court did not abuse its discretion in sentencing Dailey. We affirm.

I

[¶ 2] Dailey was charged with driving while under the influence of intoxicating liquor, a fifth offense in seven years, in violation of N.D.C.C. § 39-08-01, a class C felony; and manslaughter, in violation of N.D.C.C. § 12.1-16-02, a class B felony. After a jury trial on November 15 and 16, 2005, the jury found Dailey guilty of both charges.

[¶3] After the jury verdict was announced, the district court judge told the jury:

THE COURT: Members of the jury, thank you very much. We can’t do this without you. There’s a couple of things I’m going to take care of right now before you take off. The thanks of the Court. I really appreciate you doing this. This is a Kidder County case and the sentencing is going to be in Kidder County. But you should know the Count I, the Driving Under The Influence, this is a fifth offense for Mr. Dai-ley. This is a felony. And Mr. Dailey had written a letter to the Court asking that two of the Judges, Judge Hagerty and Judge Haskell, not be involved because Mr. Dailey thought they knew too much about him because he had been in drug court. Mr. Dailey, you finished drug court in December, 2004, did you not?
MR. DAILEY: August.
THE COURT: August of 2004. And I think when you finished drug court, you went in there for a fifth offense DUI, did you not?
MR. DAILEY: Fourth.
THE COURT: Fourth. All right. Well, in any case, Mr. Dailey is a graduate of drug court, and unfortunately, he’s not a success, one of the people who has not been able to succeed in drug court, and he had that opportunity. So, we are going to have a sentencing up in Kidder County, and that will be after a pre-sentence investigation is ordered. Mr. Dailey, your bond is now going to be revoked. The bail will be retained until we decide what to do with it. The deputy will take you into custody and the sentencing will be held after a pre-sen- *31 tence investigation is taken. So, if you will do that, I will appreciate that.
All right, members of the jury, that completes this matter. Thank you very much for your attention and thank you very much for your service. I really appreciate you taking care of this for us down here in Emmons County. Ok? Thank you.

[¶ 4] Two months later the district court sentenced Dailey to ten years in prison and ordered him to pay a fine of $10,000 on the manslaughter count. The court also sentenced Dailey to five years, with eighteen months in prison and forty-two months suspended for five years, and ordered him to pay a fine of $1,000 on the count of driving under the influence, with both sentences to run concurrently.

II

[¶ 5] Dailey argues the district court judge’s statements to the jury, made after the verdict was announced, indicates the judge was biased or prejudiced against him and the judge should have been disqualified from imposing the sentence. He claims it was unnecessary for the judge to tell the jury about his previous convictions and upcoming sentencing, and the only effect was to raise a question about the judge’s bias or prejudice. He admits the judge could have made the same comments at sentencing, but argues it is not appropriate for a judge to publicly comment on a defendant’s background and other sentencing issues before sentencing. Dailey requests his sentence be vacated and the case remanded for re-sentencing by a different judge.

[¶ 6] “[T]he failure to raise the question of judicial bias in the [district] court ordinarily precludes our review of that question on appeal.” Delzer v. United Bank, 484 N.W.2d 502, 509 (N.D.1992). Dailey did not object to the judge’s comments, raise the issue of judicial bias in the district court, or move for a new trial. Our review is therefore limited to whether the claimed error is obvious error under N.D.R.Crim.P. 52(b). See State v. Bertram, 2006 ND 10, ¶ 17, 708 N.W.2d 913. Error is not obvious unless there is a clear deviation from an applicable legal rule under current law, which affects substantial rights, and requires Dailey to show the error was prejudicial, or affected the outcome of the proceedings. Id. Dailey has the burden of establishing obvious error by showing error that is plain and affects his substantial rights. Id.

[¶ 7] Disqualification decisions are governed by the North Dakota Code of Judicial Conduct. Farm Credit Bank v. Brakke, 512 N.W.2d 718, 720 (N.D.1994). Cannon 3(A)(5), N.D.Code Jud. Conduct, states, “[a] judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice.... ” Cannon 3(E)(1), N-D.Code Jud. Conduct, states, “[a] judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned,....” The “ ‘primary concern is the preservation of public respect and confidence in the integrity of the judicial system,’ ” and even without intentional bias, disqualification may be necessary to satisfy the appearance of justice. Brakke, at 720 (quoting Sargent County Bank v. Wentworth, 500 N.W.2d 862, 877-78 (N.D.1993)). In Brakke, at 720 (quoting Terry v. State, 602 N.E.2d 535, 540 (Ind.Ct.App.1992)), this Court said, “ ‘[t]he law presumes a judge is unbiased and not prejudiced.’ ”

[¶ 8] In this case, the statements the district court judge made were facts the judge learned while presiding over the case. Dailey had four prior DUI convic *32 tions, he requested specific judges not preside over the case because of his past relationship with the judges, and he had failed drug court. It is in the nature of the judicial process for a judge to assess the defendant’s conduct and form an opinion on the merits of the case. See State v. Crescenzo, 114 R.I. 242, 332 A.2d 421, 432 (1975). Dailey does not allege any misconduct occurred during the trial. The jury had already reached a verdict and the judge’s statements did not affect the outcome of the trial.

[¶ 9] We cannot say that the district court judge’s comments are any indication of bias or prejudice against Dailey. Rather than being critical, we appreciate that courts explain after the verdict has been reached, what will occur after the jury’s role ends. Jurors may become confused about how they fit into the judicial process and they may feel like their role was not important.

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Cite This Page — Counsel Stack

Bluebook (online)
2006 ND 184, 721 N.W.2d 29, 2006 N.D. LEXIS 188, 2006 WL 2439731, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dailey-nd-2006.