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State v. Gavette

Court of Appeals of Utah

May 2, 2019

State of Utah, Appellee,
v.
Kevin Gavette, Appellant.

          Fourth District Court, Provo Department The Honorable Samuel D. McVey and Kraig Powell No. 151402980

          Neil D. Skousen, Attorney for Appellant

          Sean D. Reyes, Nathan D. Anderson, and Christopher D. Ballard, Attorneys for Appellee

          Judge Diana Hagen authored this Opinion, in which Judges David N. Mortensen and Jill M. Pohlman concurred.

          OPINION

          HAGEN, Judge:

         ¶1 When faced with a motion to disqualify, a judge has only two options: grant the motion or certify the motion to a reviewing judge for decision. Under rule 29(b)(2)(A) of the Utah Rules of Criminal Procedure, "[t]he judge shall take no further action in the case until the motion is decided." Failure to comply with this rule renders void any further proceedings presided over by that judge. Because this case proceeded to trial despite a pending motion to disqualify the judge, we must vacate the conviction and remand for a new trial.

         BACKGROUND

         ¶2 Kevin Gavette was charged with one count of filing a false or fraudulent insurance claim. During the preliminary hearing, the trial judge saw Gavette shaking his head during a witness's testimony. The trial judge interrupted the State's direct examination and advised defense counsel:

[Y]our client's shaking his head. He ought to know that that makes me think he's lying so-he's a liar, so he shouldn't be doing that. So, okay? Go ahead.

         Defense counsel offered no response to the judge's comment, and the hearing proceeded. The judge bound Gavette over for trial.

         ¶3 About eight months later, Gavette filed a motion to disqualify the judge under rule 29 of the Utah Rules of Criminal Procedure. In support of the motion, Gavette argued that the judge's comments at the preliminary hearing would cause a reasonable person to doubt whether the judge could be impartial and unbiased toward Gavette. Specifically, Gavette argued that the judge's "comment regarding [Gavette] to be a liar, evidences [the judge's] opinion that [Gavette] would not tell the truth if he were to testify at trial."

         ¶4 The judge did not grant the rule 29 motion nor did he certify the motion to a reviewing judge. See Utah R. Crim. P. 29(b)(2)(A). Instead, the judge proceeded with a previously scheduled hearing on a motion to continue the trial. At the outset of that hearing, defense counsel raised the issue of the pending motion:

[DEFENSE COUNSEL]: . . . I did find-file a motion to recuse. Personally I thought ...

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