Appeal from SUPERIOR COURT GRANT COUNTY. Superior Court No: 93-1-00001-7. Date filed in Superior Court: 3/26/93. Superior Court Judge signing: KENNETH JORGENSEN.
Author: John A. Schultheis, Concurring: Dennis J. Sweeney & Ray E. Munson
SCHULTHEIS, J.--Gary Dominguez appeals his convictions of residential burglary and third-degree theft. His only contention on appeal is that he is entitled to a new trial because the judge's failure to disqualify himself violated the appearance of fairness doctrine. In previous criminal trials, the judge had once represented Mr. Dominguez as defense counsel and Mr. Dominguez claimed he had filed a complaint against the judge regarding that representation, and the judge had once prosecuted Mr. Dominguez. We affirm.
On January 3, 1993 Louise Schuh returned to her home near Moses Lake and discovered someone had broken into it. She called the police from the neighbors' house. Three police cars responded within minutes. As two officers checked the house, another found a single set of footprints in the snow leading from the back door diagonally across to a roadway. The tracks led the police directly to Mr. Dominguez. They matched his shoe print to the tracks in the snow and arrested him.
The police placed Mr. Dominguez in a patrol car while they completed their investigation, then moved him to a second patrol car for transport to jail. An officer's observation that Mr. Dominguez squirmed a lot while he was in the first car led to discovery of a chisel stuffed behind the back seat. It fit pry marks on the frame of the Schuhs' back door. A search of the back seat in the second patrol car yielded two pieces of Mrs. Schuh's jewelry.
Mr. Dominguez was charged the following day with residential burglary. On February 1, 1993 his appointed attorney filed an affidavit of prejudice on his behalf and moved for the removal of Judge Evan Sperline as presiding judge. Judge Sperline granted the motion. After a stay for determination of competency and a continuance, the case was set for jury trial on March 4.
On March 2 Mr. Dominguez moved for removal of Judge Ken Jorgensen as presiding judge. Acknowledging he had used the one affidavit of prejudice to which he had a statutory right, defense counsel raised issues of actual or apparent prejudice. Mr. Dominguez asserted Judge Jorgensen had (1) been his defense attorney years earlier, and in 1986 Mr. Dominguez had filed a civil suit (or possibly a disciplinary complaint) against him with regard to that representation; and (2) later prosecuted him in other criminal cases. The court denied the motion.
On March 4, just before trial, Mr. Dominguez renewed his motion for removal. Given an opportunity to explain why he believed the judge was prejudiced against him, Mr. Dominguez stated:
He's been a prosecutor against me many times before. I think he's been my attorney one time before this, and that's why I had a lawsuit against him back in '86--filed in '86. He got the served paperwork. He knows he was served the paperwork. It's in the process. The last letter I got was about a year ago when I was at Walla Walla. He's still under investigation.
My mom's got copies of the originals.
Judge Jorgensen recalled representing Mr. Dominguez, but not prosecuting him:
My recollection is that I represented Mr. Dominguez many years ago as a defendant when I was doing criminal defense work. I don't know that I have ever prosecuted him, although the prosecutor's office has prosecuted him while I was deputy prosecutor. However, this particular action ...