Opinion
(ID. No. 0003008673)
Submitted: May 30, 2002
Decided: July 19, 2002
Motion To Recuse DENIED.
Colleen K. Norris, Esq., Wilmington, Delaware. Attorney for the State.
Joseph Hurley, Esq., Wilmington, Delaware. Attorney for Defendant.
Upon consideration of the defendant's motion to recuse and the record of the case, it appears that:
1. On May 23, 2002, the defendant was sentenced to eight years at Supervision Level V, followed by probation, for convictions on fifteen counts of Unlawfully Dealing in Material Depicting a Child Engaging in a Prohibited Sexual Act and fifteen counts of Possession of Child Pornography ("the child pornography case"). These convictions were in Criminal Action Numbers IN00-05-1260-1285; IN00-05-1752-1755. Shortly thereafter, the defendant filed two motions, one asking the Court to vacate his May 23 sentence, and one asking me to recuse myself from further proceedings in that case and in this separate case. By order dated June 14, 2002, the motion to vacate sentence and to recuse in IN00-05-1260-1285 and IN00-05-1752-1755 was denied. The order indicated that a separate order would be issued for this case, which is currently scheduled for trial on July 23, 2002. In this case the defendant is charged with four counts of theft.
2. The facts and circumstances which form the basis for the defendant's request are set forth in the June 14 order. As described more fully therein, the defendant contends that an interrelationship between a notation in his psychiatric records, which contains remarks he made critical of me, and which were attached to the pre-sentence report, and the length of the sentence the Court imposed, create an appearance of bias on my part. In other words, he argues that there is an appearance that the notation in his psychiatric records caused me to have prejudice against him which is reflected in the sentence he received in the child pornography case.
3. As stated in the June 14 order, I have no bias or prejudice against the defendant, nor any personal view of animosity or irritation toward him. I have no partiality against him, and no doubt that I can preside over the trial of the theft charges without bias or prejudice.
4. It is generally held that the fact that a judge has presided over an earlier trial involving a defendant does not disqualify that judge from presiding over a later trial involving the same defendant. This is true even where the judge has made adverse rulings against the defendant in the first case, or where the second case is a retrial and/or re-sentencing of a first case which was remanded on appeal.
Weber v. State, 547 A.2d 948 (Del. 1988).
Id.
5. The Court's analysis denying the defendant's motion to recuse in the child pornography case is set forth in the June 14 order. It is incorporated into this order by this reference. After having carefully considered the defendant's motion, I have concluded that the circumstances complained of surrounding his sentencing in the child pornography case do not create an appearance of bias sufficient to cause doubt as to my impartiality as judge at the trial of the theft charges.
6. Therefore, the defendant's motion for recusal is denied.
IT IS SO ORDERED.