        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE

               STATE OF TENNESSEE v. ANTONIO FREEMAN

                          Criminal Court for Sumner County
                        No. 2010-CR-820 Dee David Gay, Judge


               No. M2012-02691-CCA-10B-CD - Filed January 15, 2013


                                          OPINION

        On December 19, 2012, Appellant, Antonio Freeman, pursuant to Tennessee Supreme
Court Rule 10B, section 2.01, filed a petition for an interlocutory appeal as of right. The
petition sought an appeal of the trial court’s order denying his motion to have the trial judge
recused. The Appellant asks this Court to review the trial judge’s order denying his motion
to recuse. See Tenn. Sup. Ct. R. 10B, Sec. 1. Appellant presents the following issues for our
review on appeal: (1) whether a person of ordinary prudence in the trial court’s position,
knowing all the facts known to the trial court, would find a reasonable basis for questioning
the trial court’s impartiality in the present case; and (2) whether Rule 10B requires specific
language as to why the motion for recusal is not presented for any improper purpose, such
as to harass or to cause unnecessary delay or needless increase in the cost of litigation. After
a thorough de novo review of the record and relevant authorities, we conclude that the trial
court properly denied Appellant’s motion for recusal. The judgment of the trial court is
affirmed.

Tenn. Sup. Ct. R. 10B; Appeal as of Right; Judgment of the Trial Court is Affirmed.

J ERRY L. S MITH, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and
R OBERT W. W EDEMEYER, JJ., joined.

Sharlina Pye-Mack, Hendersonville, Tennessee, for the appellant, Antonio Freeman.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney
General, for the appellee, State of Tennessee.
                                    Factual Background

        Appellant herein was prosecuted and convicted on drug charges in Sumner County
in March of 2000. The trial judge was the assistant district attorney at that time. After
Appellant was released from that sentence, he was arrested for driving under the influence.
He posted bond and was released from custody. Several months later, Appellant was arrested
for possession of cocaine with intent to sell, possession of marijuana, and possession of drug
paraphernalia. Appellant was unable to post bond and, thus, remained incarcerated while the
charges were pending. An indictment was issued and Appellant appeared in front of the trial
judge. Prior to trial, Appellant filed numerous pro se motions, all of which were denied by
the trial court.

        While awaiting trial, Appellant was charged with and convicted of possession of
contraband in a penal facility. As a result he was sentenced to serve ten years in prison. It
is from this conviction that the appeal herein arises. Appellant’s previous court-appointed
attorney filed two motions to recuse, the first before trial and the second prior to the
sentencing hearing. Both motions alleged as the sole ground in support of recusal that the
trial judge was a named defendant in two federal civil lawsuits filed by the Appellant pro se.
The trial judge denied both motions. Appellant’s current court-appointed counsel filed a
third motion to recuse in this case following the filing of the motion for new trial but prior
to the hearing on that motion.1 In addition to the pro se federal lawsuits against the trial
judge, current counsel alleged as a second ground for recusal that the trial judge served as
the prosecuting attorney on a criminal charge against the Appellant in 1999. The trial judge
denied the motion.

       The trial judge ruled that the recent motion to recuse did not comply with the
requirements of Rule 10B because counsel “did not state with specificity that the third
motion would not cause ‘unnecessary delay or needless increase in the cost of litigation.’”
The trial judge noted that the Appellant had included in his motion for new trial, which had
already been filed, the recusal issue addressed in the first two motions filed by previous
counsel. The trial judge thus stated that “[t]here was no satisfactory reference in the [third]
motion, or explanation that this third motion would not ‘cause unnecessary delay or needless
increase in the cost of litigation.’”

      The trial judge nevertheless addressed the merits of the third motion to recuse and
concluded that he “had no doubt as to his ability to preside impartially in the case, and that

       1
         This most recent motion to recuse was filed pursuant to the provisions of Rule 10B,
which became effective July 1, 2012. The two previous motions were filed by former counsel
prior to the enactment of Rule 10B.

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a person of ordinary prudence in the Judge’s position, knowing all the facts known to the
Judge, would not find a reasonable basis for questioning the Judge’s impartiality.” In his
written order denying the motion, the trial judge ruled as follows:

              Concerning the Federal lawsuit, as stated by the Court during the third
      recusal hearing, the Court was one (1) of a “host” of defendants sued by
      [Appellant] in Federal Court. All the allegations in the pro se lawsuit were
      vague and hard to figure out. The lawsuit involved incidents directly related
      to the investigation, prosecution, and incarceration of [Appellant] in cases in
      the Criminal Justice System in Sumner County, Tennessee.

              This Court is fully aware of appearances of impropriety, but a
      “reasonable person” would have no difficulty in discerning the motive and
      timing of [Appellant] in the filing and prosecution of the Federal lawsuit.
      There were numerous defendants who were involved in the Criminal Justice
      System in Sumner County including the prosecutor, the General Sessions
      Judge, and the Criminal Court Judge. While we must be sensitive to
      appearances of impropriety, we must also recognize occasions where
      defendants will intentionally create conflicts by their own choices.
      [Appellant’s] lawsuit was a creation of a conflict that he now tries to use to his
      benefit in a motion for recusal. Our system of justice cannot allow this nor can
      it provide for new judges to take over cases where defendants file lawsuits or
      judicial complaints against judges to use as a ground for recusal. If this Court
      were to grant a motion to recuse under these circumstances, there would be a
      legion of lawsuits filed against the trial judge by defendants who do not want
      the trial judge presiding over their cases.

              Although the involvement of the trial judge in the former drug
      conviction of Appellant] as a prosecutor had not been raised in the two (2)
      other motions for recusal, that fact makes no difference in the ruling of this
      Court. It is clear that this conviction was never in contest in this case. Recusal
      is required when a judge has previously served as prosecutor of the defendant
      in the same case. Wilson v. State, 281 S.W.2d 151 (Tenn. 1926). Recusal is
      not required when a judge presides over a proceeding where the defendant is
      found to be an habitual criminal based upon defendant’s earlier indictments,
      guilty pleas, and convictions when the judge was the district attorney general.
      State v. Warner, 659 S.W.2d 580 (Tenn. 1983). A judge who previously
      prosecuted the defendant for DUI is not required to recuse himself as judge in
      a subsequent DUI case. Owens v. State, 13 S.W.3d 742 (Tenn. Crim. App.
      1999) [sic]. Even a trial judge who presided over a prior death penalty case of

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       the defendant is not required to be recused in a second death penalty case.
       State v. Reid, 213 S.W.3d 792 (Tenn. 2006).

              The conviction of [Appellant] in March 2000 was one of many cases
       that the trial judge prosecuted in his twenty-six (26) year career with the
       Sumner County District Attorney’s Office. There is nothing significant,
       eventful, or even contested that would cause a reasonable person to question
       the judge’s impartiality in connection with that case.

       The Appellant now appeals from the denial of the motion to recuse.

                                            Analysis

        On appeal, Appellant argues that a reasonable person of ordinary prudence in the trial
court's position, knowing all the facts known to the trial court, would find a reasonable basis
for questioning the trial court's impartiality. Specifically, Appellant contends that a
reasonable person of ordinary prudence in the trial court’s position would find a reasonable
basis for questioning the trial court’s impartiality because of: (1) the pending civil litigation
filed by Appellant in which the trial court is a party; and (2) the fact that the trial court was
a prosecutor in a case in which Appellant was a defendant.

                                      Standard of Review

        As an initial matter, we address the standard by which this Court reviews petitions for
recusal on appeal. Pursuant to Tennessee Supreme Court Rule 1 0B, section 2.01, a party is
entitled to an “accelerated interlocutory appeal as of right” from an order denying a motion
for disqualification or recusal. As amended, effective July 1, 2012, Tennessee Supreme
Court Rule 10B, section 2.06, directs this Court to review the appeal “on an expedited basis
based upon a de novo standard of review.” Prior to July 1, 2012, the appellate courts
reviewed recusal decisions pursuant to the more deferential abuse of discretion standard. See
State v. Hester, 324 S.W.3d 1 (Tenn. 2010). The timing of the motion for recusal requires
this Court will review the appeal under the new de novo standard.

                             Timeliness of the Motion to Recuse

       Before addressing the merits of the recusal issue, this Court must comment on the
procedural requirements of the filing of a motion to recuse under Rule 10B. Section 1.01 of
that Rule provides in its entirety:

              Any party seeking disqualification, recusal, or a determination of

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       constitutional or statutory incompetence of a judge of a court of record, or a
       judge acting as a court of record, shall do so by a timely filed written motion.
       The motion shall be supported by an affidavit under oath or a declaration under
       penalty of perjury on personal knowledge and by other appropriate materials.
       The motion shall state, with specificity, all factual and legal grounds
       supporting disqualification of the judge and shall affirmatively state that is not
       being presented for any improper purpose, such as to harass or to cause
       unnecessary delay or needless increase in the cost of litigation. A party who
       is represented by counsel is not permitted to file a pro se motion under this
       Rule.

Tenn. Sup. Ct. R. 10B Section 1.01.

        Although the trial judge concluded that current counsel’s Rule 10B motion did not
state, with specificity, that the motion would not cause “unnecessary delay or needless
increase in the cost of litigation,” both the motion and amended motion did, in fact, state that
they were “not being presented for any improper purpose, such as to harass or to cause
unnecessary delay or needless cost of litigation.” This Court does not agree with the trial
court’s interpretation of the language of Section 1.01. We conclude that the “with
specificity” requirement refers to the “factual and legal grounds supporting disqualification,”
rather than the requirement of an affirmative statement that the motion is not being filed for
any improper purpose. Nevertheless, the fact that the third motion reasserted the same
ground raised in the previous two motions for recusal, as well as one of the grounds for relief
raised in the motion for new trial, does suggest that it was being presented for an improper
purpose.

       Section 1.01 of Rule 10B also mandates that a motion for recusal must be timely filed.
As the Court of Appeals recently recognized in addressing a Rule 10B motion for recusal:

               It is also important to recognize that a party may lose the right to
       challenge a judge's impartiality by engaging in strategic conduct. Kinard v.
       Kinard, 986 S.W.2d 220, 228 (Tenn. Ct. App.1998). Further, our “[c]ourts
       frown upon the manipulation of the impartiality issue to gain procedural
       advantage and will not permit litigants to refrain from asserting known
       grounds for disqualification in order ‘to experiment with the court . . . and
       raise the objection later when the result of the trial is unfavorable.’” Id.
       (quoting Holmes v. Eason, 76 Tenn. 754 (Tenn. 1882)); Gotwald v. Gotwald,
       768 S.W.2d 689, 694 (Tenn. Ct. App.1988). “Thus, recusal motions must be
       filed promptly after the facts forming the basis for the motion become known,
       and the failure to assert them in a timely manner results in a waiver of a party's

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       right to question a judge's impartiality.” Id. (internal citations omitted).

Kathryn A. Duke v. Harold W. Duke, III., M2012-01964-COA10B-CV, 2012 WL 4513613
at *3 (Tenn. Ct. App., at Nashville, Oct. 2, 2012). Given our de novo review of the matter
at hand, this Court has determined that the Rule 10B motion of current counsel, which was
filed after trial and sentencing and just prior to the scheduled hearing on the motion for new
trial, was not filed in a timely manner. As noted above, only one new ground for recusal was
alleged in the third motion. This ground, however, was known to the Appellant prior to the
filing of the first two motions and could have been included as a ground for recusal in either
of the two motions filed by previous counsel. To allow the Appellant to proceed on this
known ground at this late of a date in the trial court proceeding would thwart the intent of
Rule 10B. The fact that the Appellant received the appointment of new counsel who may not
have been aware that the trial judge previously prosecuted the Appellant provides the
Appellant no relief. Therefore, the petition was untimely.

                                    Merits of the Petition

       Despite these procedural impediments, we determine that the trial judge correctly
denied the motion to recuse on its merits. The “filing of a lawsuit against the trial judge is
normally insufficient to warrant recusal. State v. Parton, 817 S.W.2d 28, 29-30 (Tenn. Crim.
App. 1991). To hold otherwise would mean that a litigant could automatically disqualify a
judge by the filing of a frivolous suit and would set a dangerous precedent inviting additional
frivolous litigation, manipulation of the judicial system, and forum shopping. State v.
Michael W. Parsons, W2010-02073-CCA-R3-CD, 2011 WL 6310456, at *23 (Tenn. Crim.
App., at Jackson, Dec. 15, 2011), perm. app. denied, (Tenn., May 23, 2012); State v. William
Everett Chouinard, 03-C-01-9310-CR00340, 1994 WL 318984, at *2 (Tenn. Crim. App., at
Knoxville, June 30, 1994); In re Conservatorship of Tate, M2012-01918-COA-10B-CV,
2012 WL 4086159 at *3 (Tenn. Ct. App., at Nashville, Sept. 17, 2012). Furthermore, “a
judge is not required to recuse [himself or] herself merely because [he or] she prosecuted the
defendant in a prior crime.” State v. Terry Byington, No. E2008-01762-CCA-R3-CD, 2009
WL 5173773, at *4 (Tenn. Crim. App., at Knoxville, Dec. 30, 2009) (citing State v. Warner,
649 S.W.2d 580, 581 (Tenn.1983)).

       For these reasons, the ruling of the trial court is affirmed.




                                            _________________________________________
                                            JERRY L. SMITH, JUDGE

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