George G., In re

• Decision Date: 01 September 1984
• Docket Number: No. 1317,1317
• Citation: 64 Md.App. 70,494 A.2d 247
• Parties: In re GEORGE G. ,
• Court: Court of Special Appeals of Maryland

Page 70

64 Md.App. 70

494 A.2d 247

In re GEORGE G.

No. 1317, Sept. Term, 1984.

Court of Special Appeals of Maryland.

July 3, 1985.

Julia Doyle Bernhardt, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.

Jillyn K. Schulze, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Kurt L. Schmoke, State's Atty., and Cornelia Bright, Asst. State's Atty. for Baltimore City, Baltimore, on brief), for appellee.

Submitted before BISHOP, ALPERT and BLOOM, JJ.

ALPERT, Judge.

The issues presented by this appeal are: (1) whether the trial judge should have recused himself after presiding at the trials of appellant's co-defendants; and (2) whether the court lacked the authority to mandate the terms of appellant's confinement to the Maryland Training School for Boys.

Appellant, a juvenile, brings this appeal from a judgment of the Circuit Court for Baltimore City. Appellant was found delinquent by that court in connection with the rape of a young girl in appellant's apartment building. Appellant allegedly engaged in the rape accompanied by six other males, five of whom engaged in sexual relations with the victim. During the course of appellant's trial, appellant did not deny the incident but asserted that the young lady in question consented to the activity.

Appellant was tried in late May, 1984, by the same judge who, just three weeks earlier, heard the withdrawn admissions and subsequent bench trials of three of appellant's six co-respondents. The judge found these respondents delinquent. At trial appellant's counsel, pointing to the trial judge's prior adjudication of the co-defendants, requested that the judge recuse himself with respect to appellant's bench trial. This request was refused.

On appeal, appellant contests the propriety of this refusal. He argues that this case is analogous to one where a judge hears prior damaging facts made in connection with a guilty plea and then when the plea is withdrawn the same judge attempts to hear the defendant's trial on the merits. We observe that under Maryland Rule 4-243(c)(5) this is not permitted. If a guilty plea is withdrawn, the same judge may not hear the subsequent trials if requested to recuse himself. See Brent v. State, 63 Md.App. 197, 492 A.2d 637 (1985).

Appellant also relies upon our decision in Mason v. State, 12 Md.App. 655, 280 A.2d 753 cert. denied, 263 Md. 717 (1971), which alludes to a distinction between a court and jury trial. In Mason, the defendant, although tried by a jury, argued that the trial judge who had earlier heard the nolo contendere plea of a co-defendant and presided at the trial of another co-defendant ought to recuse himself from the defendant's trial. In disagreeing, we noted that the prior adjudications "were beside the point, since [the trial judge] was not acting as a fact finder upon the appellant's case but was simply presiding over the presentation of that case to a jury." Id. at 683 (emphasis added). See also Silbert v. State, 12 Md.App. 516, 537-38, 280 A.2d 55 cert. denied, 263 Md. 720 (1971). There we decided that a motion to disqualify the trial judge was properly denied where, in earlier cases, although ruling on questions of law and the admissibility of evidence, "[t]he judge had made no ruling ... involving the substantive question of guilt or innocence." Id. at 537. Holding that a judge who was to preside over a jury trial need not recuse himself merely because he presided over an earlier trial which ended in a hung jury in McFadden v. State, 42 Md.App. 720, 402 A.2d 1310 (1979), we reasoned that "[h]e was not the fact finder and was not, therefore, in a position to be influenced by any testimony which he had heard on an earlier occasion." Id. at 729, 402 A.2d 1310.

At first blush, our decision in Carey v. State, 43 Md.App. 246, 405 A.2d 293, cert. denied, 286 Md. 744 (1979), cert. denied, 445 U.S. 967, 100 S.Ct. 1660, 64 L.Ed.2d 244 (1980) appears to be dispositive of the issue in the case sub judice. We held in Carey that a judge hearing a bench trial need not recuse himself "merely because he had found appellant's co-defendants guilty in a prior non-jury trial." Id. 43 Md.App. at 249, 405 A.2d 293. While we rejected a per se rule requiring recusal, we observed that a judge may be required to recuse himself where he was prejudiced toward or biased against a defendant. Our holding in Carey appears to be in accord with many jurisdictions which have addressed this issue. See United States v. Partin, 601 F.2d 1000, 1011 (9th Cir.1979), cert. denied, 446 U.S. 964, 100 S.Ct. 2939, 64 L.Ed.2d 822 (1980); United States v. Partin, 552 F.2d 621, 636-39 (5th Cir.), cert. denied, 434 U.S. 903, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977); United States v. Mathis, 550 F.2d 180, 182 (4th Cir.1976) ("The fact that the district judge presided over the trial of a codefendant is no ground for his disqualification, especially where no affidavit of bias or prejudice was filed."), cert. denied, 429 U.S. 1107, 97 S.Ct. 1140, 51 L.Ed.2d 560 (1977); United States v. DiLorenzo, 429 F.2d 216 (2nd Cir.1970), cert. denied, 402 U.S. 950, 91 S.Ct. 1609, 29 L.Ed.2d 120 (1971); In Re Richard W., 91 Cal.App.3d 960, 968, 155 Cal.Rptr. 11 (1979) ("A judge is not disqualified to try a case merely because he previously, in a separate proceeding, heard a case of a co-participant or passed on the application of a co-defendant for probation"; an affirmative showing of prejudice is required); Jones v. State, 416 N.E.2d 880 (Ind.App.1981). Contra People v. Zappacosta, 77 A.D.2d 928, 431 N.Y.S.2d 96 (1980).

In Carey we recognized the "assumed proposition that 'judges are men of discernment, learned and experienced in the law and capable of evaluating the materiality of evidence.' " Id. 43 Md.App. at 249, 405 A.2d 293 (quoting State v. Babb, 258 Md. 547, 550, 267 A.2d 190 (1970)). We believe, however, that "there nonetheless do exist those times when, to protect the defendant's and the public's right to a fair trial, and to ensure that the trial judge's impartiality cannot reasonably be questioned, the judge must remove himself from sitting as the trier of fact in the defendant's criminal trial." Brent, 63 Md.App. at 205-206, 492 A.2d 637. Maryland Rule 4-243(c)(5) seems to be a recognition by the Court of Appeals that such times do exist. Id. at 205, 492 A.2d 637.

This reasoning is fortified by Mason, Silbert and McFadden, where we perceive a subtle recognition that there may be times when a judge, as a fact finder, may unwittingly be influenced by some previous exposure to the facts of the case. We believe that may have occurred in the instant case. In fairness to the appellant and the trial judge, we set out in full the colloquy that ensued concerning the recusal motion.

MR. MURPHY: Judge, thank you, sir. I have other motions. I am making a motion for you to disqualify yourself in this case.

THE COURT: Okay. Do you want to be heard on that?

MR. MURPHY: Yes, sir. The reason is, with all due respect for this court, and I have a great deal of respect for this court, you have already heard the case involving two other co-defendants.

THE COURT: Two others?

MR. MURPHY: Yes, sir. They were tried approximately 3 weeks ago. The issue in this case is an issue of consent. Now, this court has heard the testimony from the victim in the case. He has heard the other two cases, and this court has decided that, in fact, this was not a consensual situation.

THE COURT: As to those, what was it 2 cases or 3 cases?

MR. MURPHY: 2, sir. 2 defendants.

THE COURT: As to those 2 cases, the court decided it was not a consensual situation?

MR MURPHY: Yes, sir. Now, in order to make that decision, you already had to make a decision on the credibility of the State's witnesses in this case.

THE COURT: Uh-huh.

MR. MURPHY: So, that you have made that decision before I have even had occasion to be a party to that other case, to hear her testimony or cross examine her. You have already made a decision in another case to believe her, which is fine, but it puts my defendant at a disadvantage. He wasn't here at the other case. He didn't get a chance to cross examine her at that time, and, in fact, Your Honor, in order for him to prevail at this time, you have to believe that this woman is not credible, and you have already ruled in another case that she was credible. So, it puts the court in a very difficult position.

THE COURT: Do you think so?

MR. MURPHY: Yes, sir.

* * *

MR. MURPHY: Let me say this, Judge. I honestly believe that this is crucial, this is not an alibi defense. This is a defense that goes right to the heart of what you have already ruled on. You have already ruled, essentially, that that man is guilty by ruling that it was a non-consensual situation. This man sits before you guilty today based on your ruling, because you have already ruled that this was a non-consensual situation. He doesn't sit before you innocent; that is his whole defense and you have already ruled in a case to which he was not a party that you believe the young lady, and that the young lady had been raped in a non-consensual situation. You have ruled that way, Your Honor, because you could not have ruled that way and found the other boys delinquent.

THE COURT: I understand what you are saying.

MR. MURPHY: And that is the only defense in this case, Judge.

THE COURT: I understand.

MR. MURPHY: There are other masters down the hall, and I say this with respect, due respect to the court, if we were here the first time--

THE COURT: I understand your position perfectly. I just disagree with you.

MR. MURPHY: How can I convince you otherwise, Judge?

THE COURT: I don't think you can.

MR. MURPHY: During the course of this trial, Your Honor, you are going to have to, in order for the defendant to prevail, you are going to have to reverse yourself in the prior decisions.

THE COURT: Doesn't make any difference; doesn't make a bit of difference. I mean,...