STATE v. GARDNER

789 P.2d 273 (Utah 1989)

While being transported from the Utah State Prison to district court in the Metropolitan Hall of Justice, defendant attempted to escape, killing an attorney and wounding a bailiff.]

Defendant filed an affidavit of bias and prejudice against the trial judge because he worked in the Hall [of Justice]. On appeal. defendant does not allege any actual bias but argues that a trial judge should recuse himself where there is an appearance of bias. We agree. The canons of judicial ethics state that a judge should disqualify himself where his impartiality might reasonably be questioned. Code of Judicial Conduct 3(C)(1) (1972). If the allegations in the affidavit are true and they would give a reasonable person cause to doubt whether the judge could be impartial under the circumstances, he should recuse himself. Nothing is more damaging to the public confidence in the legal system than the appearance of bias or prejudice on the part of the judge. However, though we share defendant's statement of the controlling rule, we do not agree that the failure of the trial judge to recuse himself in the instant case requires reversal. The Code of Judicial Conduct establishes standards that, if violated, may subject a judge to discipline. However, it does not establish the parameters of a defendant's constitutional right to a fair trial. State v. Neeley. 748 P.2d 1091. 1094 (Utah 1988); Harvell v. State, 742 P.2d 1138, 1140 (Okla. Crim. App. 1987), State v. Wixon. 30 Wash. App. 63. 69, 631 P.2d 1033, 1038 (1981).

Failure of a trial judge to recuse even where he should have, based on the appearance of possible bias or prejudice, does not require reversal unless the 'substantial rights of the party are affected.' Utah R. Crim. P. 30. The test for harmless error under the just-quoted language from rule 30 is whether there was a ' reasonable likelihood of a more favorable result for the defendant.' State v. Hutchison. 655 P.2d 635. 637 (Utah 1982), State v. Knight, 34 P.2d 913. 918-20 (Utah 1987). No allegation of actual prejudice was made, nor does our careful review of the record reveal any basis for such an allegation. In the absence of any showing of actual prejudice to defendant, any error of the trial judge in failing to recuse was harmless.