District Court, Provo Department The Honorable Samuel D.
McVey and Kraig Powell No. 151402980
D. Skousen, Attorney for Appellant
D. Reyes, Nathan D. Anderson, and Christopher D. Ballard,
Attorneys for Appellee
Diana Hagen authored this Opinion, in which Judges David N.
Mortensen and Jill M. Pohlman concurred.
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.
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.
counsel offered no response to the judge's comment, and
the hearing proceeded. The judge bound Gavette over for
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
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 ...