State v. Jacobson

2008 ND 73, 747 N.W.2d 481, 2008 N.D. LEXIS 71, 2008 WL 1747214
CourtNorth Dakota Supreme Court
DecidedApril 17, 2008
Docket20070103
StatusPublished
Cited by14 cases

This text of 2008 ND 73 (State v. Jacobson) 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. Jacobson, 2008 ND 73, 747 N.W.2d 481, 2008 N.D. LEXIS 71, 2008 WL 1747214 (N.D. 2008).

Opinions

MARING, Justice.

[¶ 1] Michael Jacobson appeals a district court criminal judgment. Jacobson was convicted of assault following a bench trial over which the Honorable Bruce B. Haskell presided. At trial, Judge Haskell disclosed to the parties that he was socially acquainted with a physician, Dr. Charles Allen, who was going to be a witness at trial, and that he would be inclined to believe Dr. Allen’s testimony. The parties agreed to proceed with the bench trial despite Judge Haskell’s familiarity with Dr. Allen. Jacobson argues that Judge Haskell committed reversible error by failing to recuse himself from the matter once he knew Dr. Allen would be testifying at trial.

[¶ 2] We affirm the district court criminal judgment. Judge Haskell, in compliance with the North Dakota Code of Judicial Conduct, disclosed on the record information he believed the parties might consider relevant to his disqualification and provided an opportunity for the parties to agree to waive his disqualification. Jacobson agreed to proceed with Judge Haskell conducting the bench trial. After Judge Haskell found Jacobson guilty of assault, Jacobson moved for a new trial. We conclude that Judge Haskell was disqualified from the proceeding. His disqualification, however, did not require him to immediately remove himself from the proceeding. He properly disclosed information relevant to the question of disqualification. The parties agreed to proceed, thus waiving Judge Haskell’s disqualification. Moreover, when a party has knowledge of information relevant to disqualification and waits until the final decision of the judge to object to the judge’s involvement in the case, the objection is untimely and results in a waiver.

I

[¶ 3] Jacobson was charged with assault. He waived his right to a jury trial, and the case came before Judge Haskell for a bench trial. During the bench trial, the State called Dr. Allen, an emergency room physician who treated the victim of the alleged assault, as a witness. When Dr. Allen was called to the stand by the State’s Attorney, Terry Elhard, the following dialogue ensued between the court, Elhard, and Jacobson’s counsel, Donavin Grenz:

Mr. Elhard: State will call Dr. Charles Allen.
The Court: All right. Hang on a second. I don’t know if this is going to make a difference to either party but I hadn’t gotten a witness list or anything prior and Dr. Allen and I are acquaintances. Our sons played base[484]*484ball together. If that makes a difference to either of you, you better let me know now and I’ll recuse myself. I hate to do that after coming down here and everything, but like I said, I didn’t have any witness list or any way to know [who] the witnesses were until I walked in this morning — so if that’s going to be a problem for you Mr. Grenz.
Mr. Grenz: Your Honor, it’s almost impossible to make that determination. I don’t know what to say, Your Honor. Clearly you believe that it may have an impact because of your knowledge.
The Court: Well let me put it this way. If Dr. Allen’s credibility is going to be an issue, which in most cases witnesses are, I would be inclined to believe what he had to say because I’ve known him for several years in a couple different contexts and I find him to be a credible, believable person. I mean if all he’s going to be testifying to is fact things where credibility isn’t much of an issue, then that may make a differen[ce]. I don’t know what else I can tell you. Obviously I would do the best I can not to let that unduly influence me, but as I say, I’ve known him for several years and I would find him believable in most circumstances.
Mr. Grenz: Well Your Honor, based upon the discovery that we made, I can’t find any statements or anything else that were given by the doctor. Again, if all he’s going to do is testify in regard to what the pictures show and confirm that that was her condition, that’s one thing, but if he’s going to testify to anything else, I’d ask that that be stricken.
Mr. Elhard: ... I have it in my discovery that he was a witness that we were going to call.
Mr. Grenz: He made that disclosure—
The Court: Well let me stop you. I’ll allow Dr. Allen to testify as to his examination in the emergency room, however if there’s any records or documents that weren’t provided to the defense, he’s not going to be able to introduce those into evidence or testify from them.
Mr. Elhard: Okay.
Mr. Grenz: With that proviso, Your Honor.
The Court: All right. Dr. Allen, if you want to come up here please and be sworn.

Dr. Allen provided testimony regarding the victim’s injuries. His testimony indicated the injuries were caused by blunt force. Jacobson’s attorney did not object to any of Dr. Allen’s testimony. Other testimony was provided by the victim, Jacobson, the victim’s treating nurse, and the Burleigh County Sheriffs Department investigator who was present during Dr. Allen’s examination of the victim.

[¶ 4] The district court found Jacobson guilty of assault. Jacobson moved for a new trial. Jacobson maintained that, after Judge Haskell disclosed his relationship with Dr. Allen, Jacobson was improperly forced to choose between proceeding with the trial or incurring additional costs by postponing the trial. Jacobson argued that Judge Haskell should have recused himself. The district court denied the motion for a new trial.

[¶ 5] Jacobson appeals the district court criminal judgment. He argues Judge Haskell committed reversible error by failing to recuse himself once he knew Dr. Allen would be testifying at trial.

[485]*485II

[¶ 6] It is important that our judicial system maintain an appearance of propriety. See Sargent County Bank v. Wentworth, 500 N.W.2d 862, 880 (N.D.1993). The Due Process Clause of the United States Constitution entitles parties in both criminal and civil matters to an impartial, neutral, and disinterested tribunal. State v. Anderson, 427 N.W.2d 316, 320 (N.D.1988). The public’s respect and confidence in the integrity of the judicial system “ ‘can only be maintained if justice satisfies the appearance of justice.’ ” Wentworth, 500 N.W.2d at 877 (citation omitted). A judge is presumed by law to be unbiased and not prejudiced. Farm Credit Bank of St. Paul v. Brakke, 512 N.W.2d 718, 720 (N.D.1994). However, to maintain the judiciary’s appearance of propriety, a judge is to recuse himself from any matter in which the judge’s impartiality would be questioned. See N.D.Code Jud. Conduct Canon 3(E).

[¶ 7] A judge’s disqualification decision is directed by the North Dakota Code of Judicial Conduct. Wentworth, 500 N.W.2d at 877. The Code mandates that a judge shall avoid impropriety and the appearance of impropriety. N.D.Code Jud. Conduct Canon 2. “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned_” N.D.Code Jud. Conduct Canon 3(E)(1).

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Cite This Page — Counsel Stack

Bluebook (online)
2008 ND 73, 747 N.W.2d 481, 2008 N.D. LEXIS 71, 2008 WL 1747214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jacobson-nd-2008.