STATE OF MISSOURI,                       )
                                         )
      Plaintiff-Respondent,              )
                                         )
vs.                                      )      No. SD32542
                                         )
DANNY K. THOMAS,                         )      Filed: February 14, 2014
                                         )
      Defendant-Appellant.               )

       APPEAL FROM THE CIRCUIT COURT OF MCDONALD COUNTY

                Honorable John R. LePage, Associate Circuit Judge

AFFIRMED

      This is a direct appeal from criminal convictions for second-degree murder

and armed criminal action. Danny K. Thomas ("Defendant") argues the trial

judge plainly erred in denying Defendant's motion seeking a change of judge for

cause. Defendant's argument is without merit, and his convictions and sentences

are affirmed.

                              Standard of Review

      Defendant did not obtain a ruling on his motion for change of judge, and

he did not include this claim in his motion for new trial. Consequently, the claim

is not preserved for review. See State v. Bryant, 362 S.W.3d 46, 50 (Mo. App.
S.D. 2012). Under Rule 30.20,1 "plain errors affecting substantial rights may be

considered in the discretion of the court when the court finds that manifest

injustice or miscarriage of justice has resulted therefrom." Rule 30.20. Plain

error review involves a two-step analysis. State v. Smith, 293 S.W.3d 149, 151

(Mo. App. S.D. 2009). First the appellate court determines whether the trial

court committed "evident, obvious, and clear error affecting the defendant's

substantial rights[.]" Id. Only where such error appears will the appellate court

move on to the second step, during which the appellate court considers whether

"such plain error actually result[ed] in manifest injustice or a miscarriage of

justice[.]" Id.

                        Factual and Procedural Background

        Defendant shot and killed his sister's fiancé. Defendant was charged with

first-degree murder and armed criminal action. He was arraigned and pled not

guilty on September 12, 2011. Defendant made a first motion for change of judge

pursuant to Rule 32.07(b) on September 20, 2011, which was sustained on

October 17, 2011. 2 Defendant filed a subsequent motion for change of judge on

December 5, 2011. In that motion, Defendant made the following allegations:

        3.      Defendant respectfully submits that the following issue could
                cause ". . . an onlooker [to] . . . reasonably question whether
                . . . " Judge LePage is impartial: a) a social relationship with
                the longtime paramour of the deceased, Velda [sic] Rideout,
                who is a witness in this case.

        4.      In addition, defendant states Judge LePage presided over a
                civil suit filed against him and entered a judgment in favor of
                the plaintiff.

1All rule references are to Missouri Court Rules (2013).
2Rule 32.07(b) states that "[i]n felony and misdemeanor cases the application must be filled out
not later than ten days after the initial plea is entered[,]" which was properly done on the first
motion for change of judge.

                                                 2
      5.     Defendant states Judge LePage heard allegations against him
             and ruled against him in regard to an application for
             restraining order.

A hearing on the motion was scheduled to take place on January 27, 2012. The

docket entry for that date indicates the hearing was cancelled but does not give a

reason. The docket sheets do not thereafter reflect a ruling on the motion.

      Defendant was tried by a jury. The jury found Defendant guilty of second-

degree murder and armed criminal action and recommended sentences of

thirteen years and three years respectively. Defendant filed a motion for new

trial but did not include a claim regarding his motion for change of judge. The

judge overruled Defendant's motion for new trial and sentenced Defendant in

accordance with the jury's verdict. Defendant appeals.

                                   Discussion

      Defendant argues the trial court plainly erred when it failed to grant

Defendant's motion for change of judge "because the motion raised allegations

which would cause the judge's impartiality reasonably to be questioned" as "the

motion alleged that (a) the judge was in a social relationship with the longtime

paramour of the deceased, who was a witness; (b) the judge presided over a civil

suit against appellant and ruled against him; and (3) [sic] the judge heard

allegations against appellant and ruled against him in regard to an application for

restraining order." This argument is without merit.

      As Defendant's first motion for change of judge was properly sustained

under Rule 32.07, his second motion for change of judge is governed by Rule

32.09. Under Rule 32.09(c) nothing prohibits a judge from ordering a change of

judge "when fundamental fairness so requires[.]" Rule 32.09(c). "The rule is not

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limited to actual prejudice and also requires recusal when 'a reasonable person

would have factual grounds to find an appearance of impropriety and doubt the

impartiality of the court.'" Anderson v. State, 402 S.W.3d 86, 91 (Mo. banc

2013) (quoting State v. Smulls, 935 S.W.2d 9, 17 (Mo. banc 1996)). However,

"[a] 'disqualifying bias or prejudice must be one emanating from an extrajudicial

source and result in an opinion on the merits on some basis other than what the

judge learns from participation in the case."' Burgess v. State, 342 S.W.3d

325, 328 (Mo. banc 2011) (quoting Haynes v. State, 937 S.W.2d 199, 202 (Mo.

banc 1996)). Furthermore, "[t]here is a presumption that a judge acts with

honesty and integrity and will not preside over a trial in which he or she cannot

be impartial.'" Id. (quoting Worthington v. State, 166 S.W.3d 566, 579 (Mo.

banc 2005)).

       None of the allegations in Defendant's motion for change of judge, even if

true, would create an appearance of impropriety. As for Defendant's suggestion

that the judge should have granted the motion because the judge had a social

relationship with a witness, the general rule is that "[a]n acquaintanceship

between a judge and a victim is not a basis for requiring the judge to disqualify."

State v. Fortner, 84 S.W.3d 507, 513 (Mo. App. S.D. 2002) (quoting State v.

Ayers, 911 S.W.2d 648, 651 (Mo. App. S.D. 1995)). There was no indication that

the judge's relationship in this case was anything more than a mere

acquaintanceship.

       Defendant's remaining two allegations involve the judge's adverse rulings

against Defendant in other, unrelated court actions. However, "[s]ituations

where a judge has made adverse rulings against an individual or where there has

                                         4
been previous contact between a judge and a criminal defendant are not an

unusual event in the crowded schedules of trial judges and does not necessarily

establish bias." State v. Reeter, 848 S.W.2d 560, 564 (Mo. App. W.D. 1993).

Thus, "Missouri courts have consistently held that a judge's prior contacts with

the defendant or with the underlying proceeding[s] themselves or with the fact

that the court made adverse rulings against the defendant in a prior proceeding

do not necessitate disqualification." Id. at 565. Defendant's allegations did not

warrant relief.

       As there is no evident, obvious, and clear error, this Court need not

consider whether there was manifest injustice or a miscarriage of justice. The

trial court did not plainly err in failing to grant Defendant's motion for change of

judge. Defendant's sole point is denied.

                                     Decision

       The trial court's judgment is affirmed.



MARY W. SHEFFIELD, J. - OPINION AUTHOR

GARY W. LYNCH J. - CONCURS

DON E. BURRELL, J. - CONCURS




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