¶1concurring in part and dissenting in part: In State v. Patton, 280 Kan. 146, Syl. ¶ 21, 120 P.3d 760 (2005), we held:
“Allegations of judicial misconduct during trial must be decided on the particular facts and circumstances surrounding such alleged misconduct. In order to require the granting of a new trial, it must affirmatively appear that the conduct was of such a natiire that it prejudiced the substantial rights of the complaining party. The mere possibility of prejudice from a judge’s remark is not sufficient to overturn a verdict or judgment.” (Emphasis added.)
¶2The majority opinion cites Pattonas the yardstick to be applied in determining judicial misconduct issues. Interestingly, the majority opinion omits citation of the significant third sentence of the Pattontest (shown boldfaced herein). Pattonis not an ancient case; the opinion was filed in September 2005. The rationale.is consistent with a long unbroken series of cases, as recognized in the majority opinion. As the majority opinion correctly notes, this court has previously “reversed a conviction and remanded for a new trial only where a judge’s misconduct would have made him or her appear less than impartial.”
¶3Although I strongly disapprove .of the trial judge’s conduct in this case, reversal of the convictions and remand for a new trial are not legally justified under the Pattontest and all of our prior cases.
¶4Both parties agree that the trial court’s rudeness and inappropriate conduct were impartial — exhibiting no bias in favor of the State or against the defendant. Contrary to the yardstick set forth *134in Patton, the facts do not “affirmatively appear” to have prejudiced the defendant. As noted in Patton, the mere possibility of prejudice is not sufficient to overturn a verdict.
¶5The majority opinion cites page after page from the trial transcript of examples of the judicial conduct herein, and then malees some generalized speculations as to the atmosphere engendered thereby. The only reference to any specific conduct requiring reversal is the following:
“Among the other deleterious effects of the judge’s behavior was limitation of Fuller’s cross-examination. This segment of the trial was particularly critical, and the ability of die system to do reliable justice was impaired.”
¶6The record on this matter, as cited in the majority opinion, shows the trial court refused to allow defense counsel to have Fuller express his opinion as to how much taller defendant was than Fuller. Both men were in the courtroom at the same time and the jurors could decide this without Fuller s guess as to any height differential. Presumably the point of this line of questioning was which man better fit the height description of assailants given to the police by the victims. It is difficult to understand how the majority opinion could conclude this area of questioning was “particularly critical.”
¶7The main thrust of the rationale expressed in the majority opinion appears to be aimed at punishing the judge for his inappropriate conduct and admonishing other judges against engaging in like conduct. Neither is a legitimate basis for reversal of the conviction herein under Pattonand all of our prior case law.
¶8Kansas has a procedure for determining whether judicial misconduct has occurred and imposing sanctions including removal where appropriate. A complaint may be filed with the Commission on Judicial Qualifications. The complaint is investigated, and a hearing held where necessary, to determine the facts. If the panel deems discipline is warranted, the panel makes recommendation as to discipline to the Supreme Court. See Supreme Court Rule 602 (2005 Kan. Ct. R. Annot. 584).
¶9The brutal home invasion herein involving the beating of an elderly couple with a shovel is a horrendous crime. The wife lingered for 18 days before dying from her injuries. Displeasure with *135a trial judge’s conduct which has not been affirmatively shown to have prejudiced the defendant’s rights is no basis for reversal of the jury’s verdict herein. I would affirm the convictions.