ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
GREGORY PAUL KAUFFMAN STEVE CARTER
Hilgendorf & Kauffman Attorney General of Indiana
South Bend, Indiana
JODI KATHRYN STEIN
Deputy Attorney General
COURT OF APPEALS OF INDIANA
DANIEL J. CARR, JR., )
vs. ) No. 20A03-0302-CR-55
STATE OF INDIANA, )
APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable George Biddlecome, Judge
Cause No. 20D03-0110-CF-112
December 8, 2003
OPINION FOR PUBLICATION
Appellant-Defendant Daniel J. Carr, Jr. (Carr) appeals his conviction for sexual misconduct with
a minor, a Class B felony.
See footnote We affirm.See footnote
Carr raises one issue, which we restate as whether Carrs fundamental right to
a fair trial was violated when the judge did not recuse himself after
indicating that he had previously represented Carr in an unrelated family matter.
Facts and Procedural History
On October 1, 2001, the State charged Carr with one count of sexual
misconduct with a minor. On October 19, 2001, the trial court conducted
a bond reduction hearing, and the following discussion occurred:
Court: Did I represent you in a dissolution ofor a paternity case at one
Carr: Yes, sir.
Defense: Do you have any objection with him being the judge in this case?
Court: That would have been at least 15 years ago, would it not?
Carr: Eleven, twelve.
Court: I dont believe that that would interfere with my ability to be objective
in this case, and Im not going to recuse myself, but I will
make thaton my own motion, I will make that fact known to the
Defense: Your Honor, my client has no objection to you being the Judge in
State: The State has no objection with regard to this matter at this time.
Ill discuss the matter with Mr. Hill andas to the long-term handling
of the case, but I have no objection to-
Court: If youre gonna [sic] file a motion for recusal, please do so promptly.
Bond Red. Tr. 3. Neither party filed a motion for recusal, and
after Carr proceeded to trial, the jury found him guilty.
On December 19, 2002, the trial court conducted Carrs sentencing hearing. After
acknowledging the pre-sentencing report, the trial court again noted its prior representation of
Carr, as follows:
Court: I want to address one issue myself. Early on in this case
I disclosed that I represented the defendant at one time in a domestic
relations matter. And in that domestic relations matter, and some time ago,
there were some allegations of child abuse. I offered at the time
to recuse myself. Neither the State nor the defendant wished that I
do so. I note that there were some references to that in
some letters which I received from members of the defendants family. I
would not have continued as Judge in this case if I believed that
mymy prior representation of the defendant would impact my decisions in this case
either for or against the defendant. I still believe that, but nevertheless,
should either party wish me to recuse, I will be happy to do
so and I will name a panel from which a sentencing Judge can
Defense: Your [H]onor, we would not be interested in that. Werewere very content
with you as the Judge in this matter.
State: No objection, Judge, of course.
Court: Very well. I want both sides to understand that my representation of
the defendant, and this was some time ago, I would estimate 20 years
ago, but I wont swear to that. May have been a little
less than that. May have been a little more. Will not affect
mymy decision in this case one way or another. Very well.
Sentencing Tr. 13. The trial court sentenced Carr to a presumptive 10-year
term of imprisonment. This appeal ensued. Discussion and Decision
Initially, we note that Carr failed to object or move for recusal after
the trial court indicated its prior involvement with Carr. Timeliness is important
on recusal issues. Tyson v. State, 622 N.E.2d 457, 460 (Ind. 1993)
(Shepard, C.J., writing on recusal). A party may not lie in wait
and only raise the recusal issue after receiving an adverse decision. Id.
Thus, Carr has waived this issue.
Waiver notwithstanding, the law presumes that a judge is unbiased in the matters
that come before him. Hammond v. State, 594 N.E.2d 509, 514 (Ind.
Ct. App. 1992). Absent a showing of actual prejudice, a judges prior
representation of a defendant in an unrelated civil matter does not mandate reversal
of a conviction. See id. (prior representation in unrelated criminal matter did
not warrant reversal).
Here, Carr offers no evidence of prejudice, and we have discovered none upon
our own review of the record. Instead, Carr focuses on Indiana Judicial
Conduct Canon 3(E), which provides, A judge shall disqualify himself or herself in
a proceeding in which the judges impartiality might reasonably be questioned . .
The commentary to Canon 3(E) states, A judge should disclose on the record
information that the judge believes the parties or their lawyers might consider relevant
to the question of disqualification, even if the judge believes there is no
real basis for disqualification. This is precisely what the trial court did
here, and neither Carr nor his counsel objected. As the representation of
Carr involved an unrelated family law proceeding, we find no error.
Hammond, 594 N.E.2d at 514 (recusal not required based on prior representation of
defendant in unrelated criminal matters).
KIRSCH, J., and VAIDIK, J., concur.
Ind. Code § 35-42-4-9(a)(1). We note that the Chronological Case Summary
entries in the Appendix indicate Carr was charged and convicted under Indiana Code
Section 35-42-4-9(b)(2). However, the instructions given to the jury listed the elements
of Indiana Code Section 35-42-4-9(a)(1), and our review of the record shows this
to be the applicable section. Neither party noted this issue in its
briefs, nor did Carr include the charging information in the Appendix for our
We also grant the States motion to strike pages 10-14 of the
Appendix, as this material was not part of the record before the trial
See Ind. Appellate Rule 50(B).
Unlike the Model Code of Judicial Conduct, Indianas Code of Judicial Conduct
does not include a provision for the remittal of disqualification.
Carlson, 704 N.E.2d 163, 167 (Ind. Ct. App. 1999) (citing Tyson, 622 N.E.2d