Banks v. United States

• Decision Date: 22 October 1986
• Docket Number: No. 84-1797.,84-1797.
• Citation: 516 A.2d 524
• Parties: Kenneth BANKS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

516 A.2d 524

Kenneth BANKS, Appellant, v. UNITED STATES, Appellee.

No. 84-1797.

District of Columbia Court of Appeals.

Argued April 22, 1986.

Decided October 22, 1986.

As Amended October 28, 1986.

Gary T. Brown, appointed by this court, for appellant.

Lee F. Satterfield, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty. and Michael W. Farrell, Asst. U.S. Atty., were on the brief, for appellee.

Before BELSON, ROGERS and STEADMAN, Associate Judges.

ROGERS, Associate Judge:

Appellant Kenneth Banks appeals his convictions in a trial by the court of three counts of unlawful distribution of cocaine and one count of unlawful distribution of heroin. D. C. Code § 33-541(a)(1) (1985 Supp.). He contends the trial judge abused his discretion in denying the motion for a mistrial because of judicial partiality, and in refusing to hear at the time of sentencing Banks' proffer of eligibility for sentencing under the addict exception of D.C.Code § 33-541(c)(2) (1985 Supp.) because at trial Banks had denied distributing heroin.¹ We hold that although the trial judge should have recused himself from sitting as the trier of fact after Banks admitted his guilt on the cocaine charges in a Super.Ct. Crim.R. 11 proceeding, the refusal to grant a mistrial is reversible error.² Resentencing is required, however, because the trial judge erred in ruling that Banks' denial at trial of selling heroin deprived the court of jurisdiction to consider whether the addict exception should apply; accordingly we remand the case for resentencing.

I.

On the second day of trial, after a second undercover police officer had testified in the government's case-in-chief about Banks' sale of cocaine, Banks expressed a willingness to accept the government's latest plea offer.³ The trial judge proceeded to inquire pursuant to Super.Ct.Crim.R. 11. Banks told the judge, "Well, Your Honor, the only part that I did sell [is] the cocaine, but I didn't sell any heroin." The judge responded "I can't take the plea of guilty if you did not do it. So there is no way you can accept the government's plea offer if you are not guilty because they are not offering you an Alford plea and principally it's not your offer, right?" Thereafter Banks' counsel moved for a mistrial because the judge had heard Banks' admission of guilt of the cocaine charges and would no longer be able to be impartial as the trier of fact. At trial Banks' testimony was consistent with his Rule 11 statement.

The trial judge denied the motion for a mistrial on the ground that there was no impediment to his continuing as the trier of fact because he would be able to evaluate the sufficiency of the government's evidence without prejudice or bias. On appeal Banks argues that the judge abused his discretion because the only issue in the case involved the credibility of Banks and the government witnesses, and the trier of fact had heard him admit his guilt to three of the four pending charges. The decision to declare a mistrial is reversible only for an abuse of discretion, Beale v. United States, 465 A.2d 796, 799 (D.C.), cert. denied, 465 U.S. 1030, 104 S.Ct. 1293, 79 L.Ed.2d 694 (1983), and, under the circumstances of the instant case, we find none.

This court has considered the issue of judicial impartiality in several cases which provide useful guidance. In each case the trial judge heard powerful incriminating evidence prior to trial and subsequently sat as trier of fact. See Butler v. United States, 414 A.2d 844 (D.C. 1980) (en banc); In re L.J. W., 370 A.2d 1333 (D.C. 1977); In re W.N. W., 343 A.2d 55 (D.C. 1975). The court concluded in each case that the trial judge should have recused himself after hearing this evidence and certified the case to another judge for trial. Our reasoning has been based on two principles: first, the trial judge must actually remain impartial and able to consider only relevant and admissible evidence in making adjudications; second, there must not be an appearance of partiality in the proceeding regardless of the judge's subjective state.

In evaluating a judge's impartiality, this jurisdiction has long recognized a presumption that trial judges, absent a showing of prejudice, consider only relevant and admissible evidence in making their findings. Riley v. District of Columbia, 207 A.2d 121, 122 (D.C. 1965), citing Fennel v. United States, 116 U.S.App.D.C. 62, 320 F.2d 784 (D.C.Cir. 1963); Teate v. United States, 297 F.2d 120 (5th Cir. 1961). See also United States, ex rel. Placek v. Illinois, 546 F.2d 1298, 1304-05 (7th Cir. 1976) (in appeal from pretrial denial of habeas corpus petition, held that where evidence on the voluntariness of the defendants' confessions also admitted at trial, learned and experienced state court judges are presumed, in the absence of a showing of substantial prejudice, not to have been improperly influenced). The presumption reveals a basic faith that trial judges sitting as triers of fact are able to perform their essential functions as adjudicators in the same manner that they are able to make numerous other rulings: by weeding out inadmissible, incompetent evidence and relying only on admissible, competent evidence in making findings of fact. See United States v. Menk, 406 F.2d 124, 126-27 (7th Cir. 1968) (per curiam), cert. denied, 395 U.S. 946, 89 S.Ct. 2019, 23 L.Ed.2d 464 (1969), quoting United States v. Bolden, 355 F.2d 453, 456 (7th Cir. 1965), cert. denied, 384 U.S. 1012, 86 S.Ct. 1919, 16 L.Ed.2d 1018 (1966).

Trial judges are invariably called upon to conduct impartial trials despite whatever opinion they may have or which they may formulate during the course of the trial concerning the guilt or innocence of an accused. Such impartiality is precisely what is expected of them, and an experienced trial judge must be assumed capable of performing his [or her] essential function. In short, prejudice must be shown by trial conduct; it may not be presumed or inferred from the subjective views of the judge.

Bolden, supra, 355 F.2d at 456.

The appearance of impropriety requires different considerations. Section 6-1.7 of the American Bar Association's Standards for Criminal Justice (Special Functions of the Trial Judge) (2d ed. 1980) provides:

The trial judge should recuse himself or herself whenever the judge has any doubt as to his or her ability to preside impartially in a criminal case or whenever the judge believes his or her impartiality can reasonably be questioned. [Emphasis supplied].

See Commonwealth v. Goodman, 454 Pa. 358, 311 A.2d 652 (1973) (applying ABA Standard) and concluding that a trial "judge should honor request for recusation where prejudicial information is received in a pre-trial proceeding that would otherwise be inadmissible during the course of the trial of the cause," cited in W.N. W., supra, 343 A.2d at 58 n. 2.

These principles have been applied in the following manner. In W.N. W., supra, the court held that there was no violation of the statute⁴ or due process under the Fifth Amendment when, over defense objection, the trial judge presiding at the fact-finding hearing in a non-jury juvenile delinquency proceeding had previously seen the juvenile's social history report during a detention hearing in another case involving the same juvenile. The court recognized the "presumption that a trial court will disregard all irrelevant matters in making its adjudications," but noted that since the judge had seen the juvenile's social history report, the better course would have been for the judge to recuse himself in order to avoid "an impermissible appearance of partiality and probability of unfairness." Id. at 58. The holding was restricted to juvenile proceedings, and did not consider similar circumstances in adult nonjury criminal prosecutions. Id. at 58 n. 2. In L.J.W, supra, 370 A.2d 1333, also a juvenile delinquency proceeding, the trial judge had heard sworn testimony in a pretrial suppression hearing in which the co-respondent had implicated L.J.W. In rejecting a claim that L.J.W. was entitled to a separate trial under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the court relied on the presumption stated in W.N. W., that the trial judge will disregard irrelevant matters, observing that "the core of Bruton, was that a jury would not be able to do what we presume a judge is able to do, namely accept evidence for one purpose and disregard it for another." Id. at 1336.

In Butler, supra, 414 A.2d 844, the en bane court held that the defendant was deprived of due process where the trial judge sitting as the trier of fact in a criminal prosecution failed to certify the proceeding to another judge after defense counsel told the judge immediately before a hearing on a pretrial motion to suppress, that the government could prove its case beyond a reasonable doubt and his client intended to commit perjury. Counsel's statement was made following the defendant's request for new counsel on the ground counsel had failed adequately to communicate with him. The trial judge refused to appoint new counsel and tried to convince the defendant to accept the government's plea disposition. This court stated "[i]t is difficult to imagine how the neutrality of a judge could remain free from compromise . . ." in such a situation. Id. at 852. "When the [trial] court has regard for the ability and honesty of the lawyer, as the court apparently did here, the credibility of the defendant would necessarily suffer in direct proportion to such regard." Id. The court concluded that

recusal and certification to another court is the desired procedure (see Thornton [v. United States, 357 A.2d 429, cert. denied, 429 U.S. 1024, 97 S.Ct. 644, 50 L.Ed.2d 626 (1976)]) and we hold that it is mandated. Error in failing to do so is compounded when the judge sits as the trier-of-fact. The due process clause commands fundamental fairness in factfinding. See McKeiver v. Pennsylvania, 403...