BOYD v. STATE (2024)

MEMORANDUM DECISION

Case Summary

[1] Roger L. Boyd, Jr., pro se, appeals the trial court's order denying his motion to disqualify the trial judge. Boyd raises three issues on appeal, which we consolidate and restate as whether the court clearly erred when it denied his motion. We affirm.

Facts and Procedural History

[2] On September 5, 2020, the State charged Boyd with murder, a felony.¹ Following a trial, a jury found Boyd guilty. The court entered judgment of conviction and sentenced Boyd to fifty-three years in the Department of Correction. Boyd appealed his conviction and asserted that the court had abused its discretion when it declined to give his proffered jury instructions on self-defense. This Court affirmed. Boyd v. State, No. 22A-CR-1914, 2023 WL 3067055 at *3 (Ind. Ct. App. April 25, 2023), trans. denied.

[3] On January 17, 2023, while his appeal was pending, Boyd sent a letter to his trial counsel and asked for “a copy of everything in [trial counsel's] client file” so that he could prepare a petition for post-conviction relief. Appellant's App. Vol. 2 at 38. Boyd also requested that his trial counsel provide his mother, Susan Boyd (“Susan”) with “all physical evidence” from his case. Id. On March 1, Boyd sent another letter to his trial counsel with the same request.

[4] On April 20, Boyd, pro se, filed a motion to compel, in which he asked the trial court to order his trial counsel to provide him with a copy of his client file. The court granted Boyd's motion and ordered trial counsel to “turn over a complete copy of his case file to [Boyd] within 30 days of this order and to make arrangements to return any potential exhibits in counsel's possession to [Boyd] or his designee.” Id. at 41. On May 19, trial counsel sent a letter to Susan and advised her that, due to the “extensive amount of material in the file,” Susan needed to bring a hard drive to his office so that he could transfer the complete file. Id. at 46. Susan responded to counsel's letter and asserted that she had “no involvement for [the] attorney client file” and that she was only a “representative for physical evidence.” Id. at 47. She also informed counsel that Boyd did not have access to a flash drive and that Boyd “is expecting to have all evidence sent to him through the US mail to the prison.” Id.

[5] On June 26, Boyd filed a motion in which he asked the court to hold his counsel in contempt for failing to comply with the court's order granting his motion to compel. Boyd alleged that his counsel's letter to Susan did not comply with the court's order because the order required counsel to provide the case file to him, not Susan. Boyd also asserted that his counsel's actions violated the Indiana Rules of Professional Conduct and that the judge was required to report that violation to the “appropriate authority.” Id. at 44. On July 10, the court entered an order giving counsel until August 10 “to certify to the court that he has delivered a paper copy of the file” to Boyd or to appear on August 24 “to show cause, if any, why he should not be held in contempt[.]” Id. at 49.

[6] On August 24, the court held a hearing on Boyd's motion for rule to show cause.² Boyd's trial counsel and a representative for the State appeared. Boyd's counsel apologized to the court and indicated that he had “misread” the court's order. Id. at 50. The court took the issue of contempt under advisement and ordered counsel to send a paper copy of Boyd's file to Boyd no later than September 7.

[7] On October 2, Boyd filed a motion to disqualify the judge and to have a special judge appointed. Boyd asserted that the trial judge had recently granted Boyd's change of venue in his post-conviction proceedings because that judge had “demonstrated personal bias or prejudice” against Boyd. Id. at 51. In particular, Boyd, who is former police officer, contends that he “had several professional interactions with” the judge and had pulled the judge over for speeding. Id. at 51. He also asserts that the judge demonstrated bias when he held a hearing on Boyd's contempt motion in chambers without Boyd present. And Boyd maintained that the judge had violated the Indiana Code of Judicial Conduct when he failed to report trial counsel's actions to the Disciplinary Commission. Boyd also filed a renewed motion for contempt against his trial counsel.

[8] That same day, the trial court denied Boyd's motion to disqualify. Then, on December 15, the trial court held a hearing on Boyd's renewed motion for contempt. At that hearing, Boyd testified that he “didn't receive the bulk” of the file from his attorney. Tr. at 7. In response, Boyd's trial counsel testified that, as of the day of the hearing, “Mr. Boyd has everything in my file.” Id. at 18. Boyd's counsel also submitted as evidence a copy of a cover letter that he sent to Boyd on September 7, which indicated that he was sending Boyd the “complete file”; pictures of numerous files, binders, and stacks of paper related to the case; and a receipt from the United States Postal Service from September 9 showing that he had mailed those items to Boyd. Ex. at 8-13. Following that hearing, the court declined to find Boyd's counsel to be in contempt. In addition, the court stated that it would not “tak[e] any further action in this criminal case for any purpose.” Tr. at 18 (capitalization removed). This appeal ensued.

Discussion and Decision

[9] Boyd appeals the trial court's denial of his motion for a change of judge.³ We review a trial court's ruling on these motions under the clearly erroneous standard. See Allen v. State, 737 N.E.2d 741, 743 (Ind. 2000) (clarifying that “the standard of review is not whether the judge's decision was an abuse of discretion but rather whether it was clearly erroneous.”). Further,

[u]nder the applicable procedure, a change of judge is neither “automatic” nor “discretionary.” Blanche v. State, 690 N.E.2d 709, 714 (Ind. 1998). A party is entitled to a change of judge only “if the historical facts recited in the affidavit support a rational inference of bias or prejudice. Crim. R. 12(B). This is not limited to cases in which the judge has expressed an opinion on guilt or innocence or the merits of the case. It does not depend on a subjective showing that the trial judge is actually biased or prejudiced. In considering a motion for change of judge, the challenged judge's ruling does not depend upon a self-assessment of actual bias or prejudice. The judge must instead determine whether the historical facts presented in support of the motion lead to a rational inference of bias or prejudice.

Id. However, “merely asserting bias and prejudice does not make it so. The law presumes that a judge is unbiased and unprejudiced.” Smith v. State, 770 N.E.2d 818, 823 (Ind. 2002).

[10] On appeal, Boyd first asserts that the judge was biased against him because he had previously had “professional interactions” with the judge when he was a police officer, including visiting the judge at his house to get warrants signed and having pulled the judge over for speeding. Appellant's Br. at 13. However, while Boyd contends, without any support in the record, that he had those prior interactions with the trial judge, he does make any argument as to how those prior interactions caused the judge to be biased against him or otherwise prejudiced him. And the mere fact that the judge and Boyd may have had prior professional interactions does not demonstrate bias. Indeed, this Court has previously held that a judge who had worked as the defendant's probation officer and later argued a case against the defendant did not amount to bias or prejudice. See Brown v. State, 830 N.E.2d 956, 962 (Ind. Ct. App. 2005). Here, the alleged prior interactions between Boyd and the trial judge were even less confrontational than a judge who was a former probation officer. As such, those historical facts as alleged by Boyd do not lead to an inference that the judge was biased.

[11] Boyd next contends that the trial judge demonstrated bias when he violated the Code of Judicial Conduct when he did not report to the Disciplinary Commission Boyd's attorney's failure to comply with the order to compel and by holding the first hearing on the contempt motion without Boyd present. However, “the Indiana Supreme Court has exclusive jurisdiction over alleged violations of the Code of Judicial Conduct.” Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004). As such, whether the trial judge violated a Judicial Canon is not a proper consideration for this Court. See id.

[12] Boyd also asserts that the judge's action of holding the first hearing on Boyd's contempt motion in chambers without Boyd present amounted to bias or prejudice. But even if we were to assume, without deciding, that the court's action was improper, Boyd has not demonstrated that it prejudiced him. At the hearing on August 24, at which only Boyd's trial counsel and the State appeared,⁴ Boyd's trial counsel simply apologized to the court and explained that he had misunderstood the court's order. The court did not make any final ruling at that time but took the matter under advisement. The court then held another hearing on Boyd's contempt motion, at which Boyd appeared and had the opportunity to present evidence and be heard. It was only after that hearing that the court denied Boyd's motion. In other words, even if Boyd should have been at the first hearing, he had the opportunity to be heard on his motion for contempt before the court issued its ruling.

[13] Finally, Boyd argues that he was prejudiced by the court's statement at the December 15, 2023, hearing that it would not take any further action in the criminal case and that the resulting prejudice should have caused the judge to disqualify himself. But the court made this statement more than two months after the court ruled on Boyd's motion to disqualify, which the court denied on October 2. As such, we agree with the State that that statement had “no bearing on the propriety of the October ruling.” Appellee's Br. at 10. Further, the court made that statement months after this Court had affirmed his conviction and after he had filed his petition for post-conviction relief.⁵ Thus, contrary to Boyd's assertions, the judge did not “close the courtroom doors in [his] face.” Appellant's Br. at 18. Rather, he still has the ability to file motions and pleadings in his post-conviction case while it is pending.

Conclusion

[14] The historical facts alleged in Boyd's motion to disqualify the judge do not lead to an inference that the judge was biased against Boyd or that Boyd was prejudiced. We therefore affirm the trial court's denial of Boyd's motion.⁶

[15] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-1-1(1). In addition, the State charged Boyd with criminal confinement, as a Level 3 felony, but the court dismissed that charge with prejudice.

2.   The hearing was not transcribed. The only information we have about the content of that hearing is what the court provided in its order.

3.   Boyd directs us to Indiana Criminal Rule 2.4 for the rule governing a change of judge. However, there is no Criminal Rule 2.4. Rather, the rule governing a change of judge based on bias is Criminal Rule 12.

4.   It is not clear from the record why Boyd was not present. The court's July 10, 2023, order requiring trial counsel to either provide the record to Boyd by August 10 or appear on August 24 was distributed to Boyd, so he was aware of the date and time of the hearing in the event counsel failed to provide the record.

5.   We have taken judicial notice of the fact that Boyd filed his petition for post-conviction relief in Cause Number 38C01-2307-PC-5 on July 28, 2023.

6.   Boyd also briefly alleges that the court's August 24, 2023, hearing without Boyd present violated his rights under the Fourteenth Amendment to the United State Constitution. However, Boyd did not make that argument to the trial court. And it is well settled that a party may not raise an issue for the first time on appeal. Spainhower v. Smart & Kessler, LLC, 176 N.E.3d 258, 266 (Ind. Ct. App. 2021).

Bailey, Judge.

Altice, C.J., and Mathias, J., concur.