         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs July 28, 2009

                 STATE OF TENNESSEE v. TERRY BYINGTON

                     Appeal from the Criminal Court for Sullivan County
                      No. C50,820    Jon K. Blackwood, Senior Judge



                  No. E2008-01762-CCA-R3-CD - Filed December 30, 2009


The Defendant, Terry Byington, appeals his convictions by a jury in the Sullivan County Criminal
Court for driving under the influence (DUI), fourth offense, a Class E felony; driving under the
influence, a Class A misdemeanor; and driving on a revoked license, a Class B misdemeanor. The
trial court merged the DUI convictions and sentenced the Defendant to four years for DUI and to six
months for driving on a revoked license, to be served concurrently, for an effective four-year
sentence in the Department of Correction. In this delayed appeal, the Defendant contends that the
trial judge committed reversible error by refusing to recuse herself because she had formerly
prosecuted the Defendant. We affirm the judgments of the trial court.

    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR. and
D. KELLY THOMAS, JR., JJ., joined.

Michael F. McClellan Carrico, Gate City, Virginia, for the appellant, Terry Byington.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney
General; H. Greeley Wells, Jr., District Attorney General; and William B. Harper, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

        The Defendant was convicted in 2003 and appealed his conviction. This court concluded that
his motion for new trial was untimely and affirmed the judgment of the trial court, holding that the
evidence was sufficient and his sentence appropriate. State v. Terry Byington, No. E2003-02814-
CCA-R3-CD, Sullivan County, slip op. at 4, 6 (Tenn. Crim. App. Apr. 30, 2004), app. denied (Tenn.
Oct. 4, 2004). The Defendant sought post-conviction relief, and this court granted him a motion for
new trial and this delayed appeal. Terry Lynn Byington v. State, No. E2006-01712-CCA-R3-PC,
Sullivan County, slip op. at 6 (Tenn. Crim. App. Nov. 26, 2007).

       The facts of this case were summarized by this court in the Defendant’s first appeal:
               Officer Eric Alford, a patrol officer with the Kingsport Police
               Department, testified that on June 15, 2001, while traveling on East
               Stone Drive in Kingsport, Tennessee, he observed the defendant drive
               his pickup truck across the center line of a six-lane road twice within
               a short distance. Officer Alford stated he further observed the
               defendant’s vehicle approach a yellow light at an intersection without
               slowing. The light changed to red as the vehicle entered the
               intersection, and the vehicle stopped in the middle of the intersection
               under the traffic light. Officer Alford initiated a traffic stop.

               Officer Alford testified he observed a “very strong” odor of alcohol;
               the defendant’s speech was slurred; and he appeared to be
               intoxicated. The defendant informed the officer that he had been to
               Hog Wild, a local bar, that he had consumed seven or eight beers, and
               that he knew he should not be driving.

               Officer Alford asked the defendant to exit his vehicle and conducted
               a series of field sobriety tests. The officer testified the defendant
               performed “poorly” on the finger-to-nose test and touched his upper
               lip rather than the tip of his nose on two occasions. Officer Alford
               stated the defendant performed “very poorly” on the walk-and-turn
               test and was “staggering.” The officer explained that he did not ask
               the defendant to perform the one legged stand test because “it was
               pointless as far as his balance and trying to perform the test
               accurately.” Officer Alford testified that based upon his experience
               and observations, he believed the defendant was too intoxicated to
               operate a vehicle.

               Upon transporting the defendant to the city jail, Officer Alford asked
               the defendant to take a breathalyzer test and explained the
               consequences of his refusal; nevertheless, the defendant refused. The
               officer subsequently learned that the defendant’s license had been
               revoked.

State v. Terry Byington, No. E2003-02814-CCA-R3-CD, Sullivan County, slip op. at 1-2 (Tenn.
Crim. App. Apr. 30, 2004), app. denied (Tenn. Oct. 4, 2004).

         The Defendant did not move to seek recusal of the trial judge during the trial. At the trial,
a certified copy of the Defendant’s driving history was received into evidence. The trial court ruled
that if the Defendant testified, the State could question about an old conviction for perjury because
its probative value substantially outweighed its prejudicial effect.




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       At the sentencing hearing, the Defendant stated that he was concerned because the trial judge
had prosecuted him when she was an assistant district attorney general. The following exchange
took place:

               [DEFENSE COUNSEL:]             You indicated last time [the judge]
                                              had no recollection of ----

               [THE DEFENDANT:]               Well, no, she said she had a
                                              recollection.  She just said she
                                              couldn’t remember what for exactly.

               [DEFENSE COUNSEL:]             Is there anything that you can
                                              remember that you think would be a --
                                              -- she could remember against you,
                                              sir?

               [THE DEFENDANT:]               I don’t really know.

               [THE COURT:]                   You want him to jog my memory
                                              because I don’t remember you.

               [THE DEFENDANT:]               I don’t really know whether there was
                                              any one recollection. To be honest
                                              with you, she was the prosecuting
                                              attorney on the HTO.

               [DEFENSE COUNSEL:]             Okay, and you had asked your prior
                                              attorney to bring that to the Court’s
                                              permission [sic] about asking her to
                                              recuse herself?

               [THE DEFENDANT:]               Well, he brought it up but that’s about
                                              as far as it went.

       The Defendant raised the issue of recusal again as a ground for relief in his first motion for
new trial. At that hearing, the following exchange took place:

               [DEFENSE COUNSEL:]             If Your Honor please, I think the
                                              [issue of recusal] we’ve raised at every
                                              step, and Your Honor may recall that.
                                              I think [the Defendant] indicated in, I
                                              believe it was 1985, that he was
                                              prosecuted for violation of HTO and .
                                              . . he indicates you were the
                                              prosecutor and based upon that he was

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                                               asking that the trial would have not
                                               gone forward, that respectfully that
                                               would not have been proper for Your
                                               Honor to have heard that case, and that
                                               is the basis of that ground.
                                               ....

               THE COURT:                      I have discussed on the record and
                                               ruled before on whether I should
                                               recuse myself, and again, I find that
                                               that ground, there’s no basis for that
                                               ground for a Motion for New Trial.
                                               There’s no allegation of anything
                                               other than I just previously prosecuted
                                               him . . . .
                                               If I prosecute you I don’t sentence you
                                               but, you know, I don’t know, if I
                                               recuse myself just because I’d
                                               prosecuted somebody I’d have about
                                               three cases a year . . . you know, I had
                                               no specific recollection. I don’t think
                                               there were any allegations of anything
                                               that I knew about him that ---- his
                                               record, it’s in the presentence report.
                                               It’s public record of whether or not
                                               he’s been convicted before and
                                               nothing ---- I didn’t represent him or
                                               anything to where I’d have knowledge
                                               of any matters that weren’t presented
                                               in open court on the previous
                                               prosecution, so it’s denied . . . .

        At the post-conviction hearing, the Defendant testified that his attorney made a motion for
recusal at “every stage” because the trial judge had prosecuted him in 1986 as a habitual traffic
offender and that the conviction was used to enhance his sentence. The trial court questioned the
Defendant about the habitual traffic offender conviction. The Defendant agreed that he pled guilty
to that offense and that he had two prior felony convictions, which made him a Range II offender.

        After this court granted a delayed appeal, a hearing was held on the second motion for new
trial. The Defendant testified that the judge had prosecuted him for being a habitual traffic offender
when she had served as an assistant district attorney general. He said that the issue was brought
before the trial court and that the judge would not agree to recuse herself from the trial proceedings.
He agreed that the judge had reserved judgment on whether evidence of an old perjury conviction
would be admitted until he decided whether he would testify. He said he did not testify at the trial.
He said that the perjury conviction was ultimately used against him and that the judge made

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references to his continuing to violate the law. He agreed that the judge’s reference could have
originated from her knowledge of his criminal record by virtue of her having served as an assistant
district attorney general. He said that he did not believe he received a fair trial and that he felt there
“was more of a possibility . . . than not” of bias against him.

        The trial court denied the Defendant’s motion for new trial. The court found that the trial
judge who presided over the Defendant’s trial, sentencing, and first motion for new trial acted within
her discretion when she declined to recuse herself from the proceedings.

         In this appeal, the Defendant contends that the trial judge committed reversible error in
failing to recuse herself because she had prosecuted the Defendant as an assistant district attorney
general for an offense that she used to enhance the Defendant’s sentence. The State contends that
the trial judge did not commit reversible error when she declined to recuse herself and claims that
the Defendant has waived this issue for failure to raise a contemporaneous objection.

        While the failure to seek recusal in a timely manner may result in a waiver of a party’s right
to question a judge’s impartiality, a reviewing court may nonetheless address the merits of a recusal
issue because of the fundamental right of a criminal defendant to a fair trial. See Bd. of Prof’l
Responsibility v. Slavin,145 S.W.3d 538, 548 (Tenn. 2004); Davis v. Tenn. Dep’t of Emp. Sec., 23
S.W.3d 304, 313 (Tenn. Ct. App. 2000); see also In re Cameron, 51 S.W. 64, 78 (Tenn. 1912).

       A trial judge should grant a motion to recuse whenever his or her impartiality can reasonably
be questioned. Alley v. State, 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994). Recusal is “warranted
when a person of ordinary prudence in the judge’s position, knowing all of the facts known to the
judge would find a reasonable basis for questioning the judge’s impartiality.” Id. The standard of
review on appeal is whether the trial court abused its discretion by denying the motion. Slavin, 145
S.W.3d at 546 (Tenn. 2004); State v. Cash, 867 S.W.2d 741, 749 (Tenn. Crim. App. 1993). The
Code of Judicial Conduct states in pertinent part:

                (1) A judge shall disqualify himself or herself in a proceeding in
                which the judge’s impartiality might reasonably be questioned,
                including but not limited to instances where:

                        (a) the judge has a personal bias or prejudice
                        concerning a party or a party’s lawyer, or personal
                        knowledge of disputed evidentiary facts concerning
                        the proceeding;

                        (b) the judge served as a lawyer in the matter in
                        controversy, or a lawyer with whom the judge
                        previously practiced law served during such
                        association as a lawyer concerning the matter, or the
                        judge has been a material witness concerning it[.]
                        ....


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Tenn. S. Ct. R. 10, Canon 3.E.(1)(a)-(b). The commentary to this section provides:

                A lawyer in a government agency does not ordinarily have an
                association with other lawyers employed by that agency within the
                meaning of Section 3E(1)(b); a judge formerly employed by a
                government agency, however, should disqualify himself . . . in a
                proceeding if the judge’s impartiality might reasonably be questioned
                because of such association.

        However, a judge is not required to recuse herself merely because she prosecuted the
defendant in a prior crime. See State v. Warner, 649 S.W.2d 580, 581 (Tenn. 1983). The
disqualification of a judge from a case in which she had been involved “is limited by its very
language to the cause on trial and does not include prior concluded trials or guilty plea convictions
used to support a habitual criminal charge.” Id.

        We conclude that the trial judge did not abuse her discretion when she refused to recuse
herself in the Defendant’s trial and sentencing. The judge was not precluded from presiding over
the Defendant’s case merely because she had prosecuted him in the past. The Defendant did not
show that the judge had a personal prejudice or bias against him. In addition, the record shows that
the judge did not rely on knowledge gleaned solely from her position as an assistant district attorney
when she sentenced the Defendant. The judge received a certified copy of the Defendant’s driving
history at the trial, which listed his traffic offenses. At the hearing on the first motion for new trial,
the judge stated that she relied on the presentence report, which detailed the Defendant’s criminal
convictions. The Defendant admitted that he had prior felony convictions, and his criminal history
was undisputed. The Defendant is not entitled to relief on this issue.

        In consideration of the foregoing and the record as a whole, we affirm the judgments of the
trial court.



                                                         ___________________________________
                                                         JOSEPH M. TIPTON, PRESIDING JUDGE




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