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Ferguson v. State

Supreme Court of Arkansas

September 22, 2016

JACQUELINE FERGUSON APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT [NO. CR2014-241] HONORABLE BARBARA ELMORE, JUDGE

          Lightle, Raney, Streit & Streit, LLP, by: Jonathan R. Streit, for appellant.

          Leslie Rutledge, Att'y Gen., by: Kristen C. Green, Ass't Att'y Gen., for appellee.

          JOSEPHINE LINKER HART, Justice.

         Jacqueline Ferguson was convicted in a Lonoke County jury trial of second-degree domestic battery, for which she was sentenced to five years in the Arkansas Department of Correction with an additional one-year enhanced penalty for committing the offense in the presence of a child. On appeal, Ferguson argues that the circuit judge abused her discretion when she denied her motion asking the circuit judge to recuse and when she denied her waiver of a jury trial. We reverse and remand.

         Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(e) (2015), as we granted a petition for review filed by Ms. Ferguson after the Arkansas Court of Appeals affirmed her conviction. Ferguson v. State, 2015 Ark.App. 722, 479 S.W.3d 25. When we grant a petition for review, we consider the appeal as though it had been originally filed in this court. Lagios v. Goldman, 2016 Ark. 59, 483 S.W.3d 810.

         The legally significant facts in this case are not in dispute. On March 31, 2014, a call was placed to the Arkansas Child Abuse Hotline, reporting that Ferguson had physically abused her adopted children, LF and ZF. At the time, Ferguson and her husband Chris were serving as licensed foster parents. Their household included their biological child, AF, three adopted children, LF, LF2, and ZF, and three foster children, BK, AH, and AH's newborn child ZH. The children were subsequently adjudicated dependent-neglected on July 1, 2014, at a hearing presided over by Circuit Judge Barbara Elmore.

         At the adjudication hearing, there was testimony from Ferguson's two teenage foster daughters, BK and AH; Dr. Karen Farst, a pediatrician from Arkansas Children's Hospital, who specializes in child-abuse pediatrics; State Police Crimes Against Children Investigator Tanya Cross; and dermatologist Dr. Brad White, who testified that marks on LF were consistent with a skin condition called urticaria.[1] At the conclusion of the hearing, Judge Elmore made the following statements from the bench:

I find that there's dependent neglect. I do find that the allegations have been substantiated by proof beyond a preponderance of the evidence. The child is dependent neglect. There was physical abuse of the child younger than six years of age. I don't see how you can find anything else.

         Prior to the adjudication hearing, on June 13, 2014, the State charged Ferguson with second-degree domestic battering. The information alleged that Ferguson "did unlawfully, feloniously with the purpose of causing physical injury to a family or household member he or she knows to be twelve (12) years of age or younger" cause physical injury to LF. Judge Elmore was also assigned the criminal case.

         On September 2, 2014, Ferguson filed a motion for recusal, arguing that the judge had presided over a juvenile case with the "exact same" allegations in the criminal case. The motion further noted that Judge Elmore had "rendered a decision against [Ferguson] in the juvenile court proceeding." Ferguson asserted that Judge Elmore should recuse because Rule 2.11(A)(6)(d) of the Arkansas Code of Judicial Conduct requires a judge to disqualify herself in any proceeding in which her "impartiality might reasonably be questioned, " including circumstances in which the judge "previously presided as a judge over the matter in another court." Ark. Code Jud. Conduct R. 2.11 (2015). Ferguson also invoked Rule 2.11(A)(1), which states that a judge should recuse if "the judge has a personal bias or prejudice concerning a party . . . or personal knowledge of facts that are in dispute in the proceeding." Ferguson also moved to waive her right to a jury trial.

         After a November 3, 2014 hearing, Judge Elmore entered orders on November 26, 2014, denying the recusal motion and denying Ferguson's jury-trial waiver. On February 3, 2015, the circuit court entered a supplemental order regarding its denial of Ferguson's waiver request. That order expressed the circuit court's rationale for its earlier denial of Ferguson's waiver. It attributed the decision to Ferguson's stated belief that, because the circuit judge had presided over the dependency-neglect case, the circuit judge had "some sort of bias or prejudged disposition toward" Ferguson. The order acknowledged Ferguson's argument that "some of the same testimony and evidence" from the juvenile case would be heard in the criminal trial but found that to be irrelevant because of the different burdens of proof in the two proceedings. In fact, BK, AH, Farst, Cross and Dr. White, [2] who were the key witnesses in the dependency-neglect case also testified in the criminal case. Ferguson was convicted as charged.

         On appeal, Ferguson first argues that the circuit court abused its discretion when it refused to recuse from the case. She asserts that the circuit court abused its discretion for two reasons: the circuit judge had presided over the matter in another court and she had personal knowledge of the facts that were in dispute. In support of her argument, Ferguson relies on the plain wording of Rule 2.11 of the Arkansas Code of Judicial Conduct, which states in pertinent part that

(A) A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to the following circumstances:
(1) The judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of facts that are in dispute in the proceeding.
. . . .
(6) The judge . . .

(d) previously presided as a judge over the matter in another court. Ferguson contends that presiding over the dependency-neglect case constituted presiding "over the matter in another court." She notes that the witnesses were the same and that their testimony addressed the same alleged conduct. Additionally, she asserts that the "purpose" of both the dependency/neglect and the criminal proceedings were "identical"-to prove that she ...


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