COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Willis and Bray 

Argued at Norfolk, Virginia 

KAMA DEARBORN DAVIS 

v. Record No. 1257-94-1 OPINION 

 BY JUDGE JOSEPH E. BAKER 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

Johnny E. Morrison, Judge 

 Dianne G. Ringer, Assistant Public Defender, 

 for appellant. 

 Richard H. Rizk, Assistant Attorney General 

 (James S. Gilmore, III, Attorney General; 

 Katherine P. Baldwin, Assistant Attorney General, 

 on brief), for appellee. 

 Kama Dearborn Davis (appellant) appeals from a judgment of 

the Circuit Court of the City of Portsmouth (trial court) that 

approved a jury verdict convicting him of aggravated sexual 

battery and forcible sodomy. Appellant contends that the 

judgment must be reversed because the trial judge erroneously 

refused to recuse himself from presiding over the trial, and 

because he denied motions made during the course of the trial by 

appellant's trial counsel to withdraw as counsel for appellant. 

 Finding no error, we affirm. 

 In this appeal, as sufficiency of the evidence to support 

the convictions is not at issue, we consider only the evidence 

relevant to recusal and counsel's professional responsibility. 

The record discloses that in the summer of 1985, the victim was 

five years old. She lived with her mother and her seven-year-old 
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brother. Appellant, a friend of the victim's mother, lived with 

them for a period of time and baby-sat the children during their 

mother's absence. The victim testified that one evening that 

summer when her mother was not at home she and her brother 

watched television with appellant in the living room. After 

watching a movie, appellant sent the victim's brother to bed 

early. Appellant then changed into one of the mother's 

bathrobes, lay on the living room couch, and told the victim to 

come over and "suck" his penis. When she refused, he took hold 

of the back of her head with his hand and forced her mouth onto 

his penis. While this was occurring, the brother appeared. He 

stated that he needed to go to the bathroom, which was across the 

living room, and he testified that he saw his sister on her knees 

close to appellant and that appellant's penis was exposed. He 

then went back to bed and fell asleep. 

 The victim further testified that appellant forced her to 

place her mouth on his penis again. He ejaculated into her 

mouth, after which she went into the bathroom, washed out her 

mouth, and then went to bed. Appellant followed her to her bed, 

pulled up her gown and pulled down her panties and began manually 

"messing" with her genitals. 

I. The Recusal

 Prior to trial, appellant made two separate motions 

requesting the trial judge to recuse himself on the ground that 

as a former Commonwealth Attorney he had previously prosecuted 
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appellant on criminal charges. The court denied the motion both 

times. On the second occasion, the trial judge stated, "I don't 

know this gentleman, and I don't remember him. . . . if I 

prosecuted him, it would have been before I took the Bench [in] 

February, 1991." It is clear that the trial judge had no 

preconceived bias against appellant. Appellant had requested 

that he be tried by a jury and his guilt or innocence was to be 

decided by that jury. The jury would not be aware of appellant's 

prior convictions, if any, unless appellant testified on his own 

behalf. No ruling by the trial court demonstrates any bias 

prejudicial to appellant. 

 Canon 3(C) of the Canons of Judicial Conduct, which guides 

our decision in this matter, provides: 

C. Disqualification. 

 (a) A judge shall disqualify himself in 

any proceeding in which his impartiality 

might reasonably be questioned. 

 (1) To this end, he should abstain from 

performing or taking part in any judicial act 

in which his personal interests are involved. 

He should not act in a controversy where a 

near relative is a party. He should not 

suffer his conduct to justify the impression 

that any person can improperly influence him 

or unduly enjoy his favor, or that he is 

affected by his kinship, rank, position or 

influence of any party or other person. 

 (2) A judge should inform himself about 

his personal and fiduciary financial 

interests, and make a reasonable effort to 

inform himself about the personal financial 

interests of his spouse and minor children 

residing in his household. 
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The requirement of this Canon is clear; a judge must diligently 

avoid not only impropriety but a reasonable appearance of 

impropriety as well. Exactly when a judge's impartiality might 

reasonably be called into question is a determination to be made 

by that judge in the exercise of his or her sound discretion. 

Justus v. Commonwealth, 222 Va. 667, 673, 238 S.E.2d 905, 908 

(1981), cert. denied, 455 U.S. 983 (1982). Judges are presumed 

to be aware of the provisions of Canon 3, and their decisions 

will not be disturbed absent an abuse of that discretion. 

 Subsections (1) and (2) of the Canon provide that judges 

should abstain from presiding when either they, or a near 

relative, have an "interest," financial or otherwise, in the 

proceeding. These subsections specify particular situations when 

a judge's impartiality might reasonably be called into question. 

 While these subsections do not provide an exhaustive list, they 

certainly provide insight into the type of situations which give 

rise to a reasonable appearance of impropriety. What is certain 

is that Canon 3(C) does not require a judge to recuse himself or 

herself and disrupt the orderly flow of the docket at the whim or 

unsupported suggestion of a party. 

 Appellant argues that Broady v. Commonwealth, 16 Va. App. 

281, 429 S.E.2d 468 (1993) requires this Court to reverse his 

convictions because the trial judge refused to recuse himself. 

We disagree. The facts in Broady are substantially different 

from those before us. In addition, Broady's conviction was 
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reversed because of a Batson issue, not because of the trial 

judge's knowledge of the accused's prior criminal record. 

 In effect, appellant asks that we adopt a per se rule 

declaring that trial judges who as Commonwealth Attorneys 

previously have prosecuted an accused may not preside over the 

accused's trial on criminal charges. We decline to declare such 

rule. As stated previously, the trial judge must exercise 

discretion in determining whether he or she harbors bias or 

prejudice that might impair the judge's ability to give the 

defendant a fair trial. Justus, 222 Va. at 673, 283 S.E.2d at 

908 (1981); see also Terrell v. Commonwealth, 12 Va. App. 285, 

403 S.E.2d 387 (1991). 

 We find nothing in the record to show abuse of trial court 

discretion and further find that under the facts here, the trial 

judge's impartiality cannot reasonably be questioned. 

II. Counsel's Professional Responsibility

 On cross-examination, appellant's public defender counsel 

asked the victim if she had testified at the preliminary hearing 

regarding the incident in the bedroom. The victim answered, 

"Yes." After the Commonwealth rested and the trial court 

overruled appellant's motion to strike based upon the 

insufficiency of the evidence, appellant's counsel advised the 

court that she had learned from another assistant public defender 

(Lambert) that the victim had not testified at the preliminary 

hearing regarding the incident in the bedroom. Lambert had 
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represented appellant in that proceeding. Appellant's counsel 

then moved to withdraw, based upon the fact that the defense 

intended to call Lambert as a witness to impeach the credibility 

of the victim. The trial court denied counsel's motion to 

withdraw. 

 In support of appellant's position that the trial court 

erred when it refused to permit his counsel to withdraw, 

appellant cites Rule 5-102(A) of the Disciplinary Rules of the 

Virginia Code of Professional Responsibility that provides: 

 If, after undertaking employment in 

contemplated or pending litigation, a lawyer 

learns or it is obvious that he or a lawyer 

in his firm ought to be called as a witness 

on behalf of his client, he shall withdraw 

from the conduct of the trial and his firm, 

if any, shall not continue representation in 

the trial, except that he may continue the 

representation and he or a lawyer in his firm 

may testify in the circumstances enumerated 

in DR 5-101(B)(1) through (3). 

 After the trial court denied the motion to withdraw, 

appellant's counsel presented several witnesses, including 

appellant. At trial, counsel did not argue that it would be 

prejudicial to appellant's defense if Lambert was not permitted 

to testify. Counsel appeared to be concerned with her personal 

professional responsibility, not with the fact that her continued 

representation of appellant would be prejudicial to him.1

 We 

hold that under the facts presented here, the trial court did not 

 1When the trial court denied counsel's motion to withdraw, 

counsel responded, "Thank you, Your Honor, as long as it's on the 

record that I made a motion to withdraw." 
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erroneously refuse to permit counsel to withdraw. 

 Accordingly, the judgment of the trial court is affirmed. 

 Affirmed.