Marchese v. Aebersold

• Decision Date: 28 September 2017
• Docket Number: 2016-SC-000644-DGE
• Citation: 530 S.W.3d 441
• Parties: Stephen MARCHESE, Appellant v. Allison AEBERSOLD, Appellee
• Court: United States State Supreme Court — District of Kentucky

530 S.W.3d 441

Stephen MARCHESE, Appellant

v.Allison AEBERSOLD, Appellee

2016-SC-000644-DGE

Supreme Court of Kentucky.

SEPTEMBER 28, 2017

COUNSEL FOR APPELLANT: Ryan C. Vantrease, 600 West Main Street, Suite 500, Louisville, KY 40202.

COUNSEL FOR APPELLEE: Courtney Kellner, 600 West Main Street, Ste. 100, Louisville, KY 40202.

OPINION OF THE COURT BY JUSTICE VENTERS

Appellant, Stephen Marchese, appeals from a decision of the Court of Appeals which affirmed the Jefferson Family Court's issuance of a Domestic Violence Order (DVO) upon a petition filed by Appellee Allison Aebersold. As grounds for relief, Marchese presents three arguments:

(1) the trial court improperly considered and relied upon extrajudicial evidence; (2) the extrajudicial evidence, even if properly received, was inadmissible hearsay; and (3) the DVO was issued against Marchese in violation of his due process rights.

Upon discretionary review, we conclude that the trial court committed structural error and that its use of extrajudicial evidence from an undisclosed source was improper. Accordingly, we reverse the Court of Appeals' opinion, vacate the DVO, and remand for additional proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Marchese and Aebersold had a romantic relationship. The couple broke up in January of 2016. A few days later Aebersold petitioned the Jefferson Family Court for an emergency protective order (EPO) and the corresponding domestic violence order (DVO). Her petition alleged that she and Marchese "have been apart for a few days now and [Marchese] will not leave me alone, he is stalking me showing up in my driveway at night...." The court entered an EPO and set a hearing date for the statutorily-mandated DVO hearing.

At the DVO hearing, both parties appeared pro se. Aebersold testified that Marchese had never hit her, but that he had shoved her when he was drunk. She also testified that after the issuance of the EPO, he parked in his car in her driveway, he asked third parties to contact her on his behalf, he sent text messages to her mother threatening to post sexually explicit photographs of Aebersold on the internet, and he repeatedly contacted her through social media. Aebersold testified that Marchese was very controlling and manipulative; that he would not leave her alone; and that he had shown up in her driveway at night on an unspecified number of occasions.

Aebersold's mother, Whitney Aebersold, testified that while the couple was together Marchese tried to prevent her from talking on the phone to her daughter. Whitney said that she had urged Marchese to leave her daughter alone. She also confirmed that Marchese threatened to post on the internet sexually explicit photographs of himself and Aebersold.

Marchese admitted that he had threatened to post the embarrassing photographs. He admitted that he repeatedly tried to contact Aebersold because they had "made a pact to not give up on each other." He denied obstructing Whitney's efforts to contact Aebersold. He also denied that he tried to contact her through a third party, stating that he had only asked friends about her, but had never asked them to contact her. Marchese also testified that he would soon relocate in New Hampshire and no longer had any desire to contact Aebersold.

Marchese's brother, Paul, testified that Marchese did not have a violent history. He said he had never seen any domestic violence occur between Aebersold and Marchese. Paul also testified that Marchese's work schedule would not have allowed him to stalk Aebersold. Amy Green, a woman who had formerly lived with Marchese, testified that she had never seen him engaged in domestic violence. She also said that his work schedule would not have allowed him to stalk Aebersold.

After hearing the testimony, the trial judge called for a brief recess and asked Marchese for his social security number. He complied, but apparently did so with some hesitation. When the hearing reconvened, the trial judge began with a review of the evidence that had been presented; she described what she perceived as Marchese's reluctance to give his social security number as a "red flag." The judge then said: "we have [Marchese's social security number]" and "we also have [Marchese's] record from other states." The judge then announced; "You have an assault and battery from Virginia Beach," to which Marchese responded, "It should have been dropped." The trial judge replied: "Well, it wasn't ... Your brother testified that you have never been violent." The trial judge then stated to Marchese that he had "engaged in every manipulative behavior that she had ever seen." Marchese attempted to respond but the trial court commanded him to stop, and then finished her recitation of the evidence. The trial court then announced from the bench that the DVO would be granted. The judge next instructed Marchese to wait outside the courtroom for his copy of the order. At no time did the trial judge disclose the source of her knowledge of the alleged Virginia Beach assault conviction or describe the legal grounds upon which that information was interjected into the DVO hearing; nor did the judge give Marchese an opportunity to address the issue.

The judge wrote the following findings on the docket sheet:

1) [Marchese] has exerted controlling behavior over Petitioner, limiting her contact w/ family and friends;

2) [Marchese] uses humiliation tactics to control Petitioner;

3) [Marchese] stalked Petitioner, parking in her driveway at night & inquiring of her through 3rd parties after EPO was entered;

4) [Marchese] shoved Petitioner while drunk and threatened her;

5) [Marchese] has a history of domestic violence;

6) [Domestic violence] could occur in the future.

Marchese appealed. The Court of Appeals concluded that the trial court's extrajudicial research concerning Appellant's criminal record was error, but it nevertheless affirmed the entry of the DVO on the basis of harmless error. We granted discretionary review.

II. THE TRIAL JUDGE'S RECEIPT OF EXTRAJUDICIAL EVIDENCE WAS STRUCTURAL ERROR

Although not raised or addressed as an issue by the Court of Appeals, we would be remiss if we chose to overlook the most fundamental flaw in the issuance of the DVO against Marchese. Even when a litigant fails to assert in a timely manner the grounds upon which a judge should recuse, "a trial judge is obligated to disqualify himself ‘when presiding over a matter that would violate statutory mandates for impartiality.’ " Alred v. Commonwealth, Judicial Conduct Commission, 395 S.W.3d 417, 443-44 (Ky. 2012) (citing Judicial Canon 3E(1)(a) and KRS 26A.015 ).

KRS 26A.015(2) requires a judge to "disqualify himself in any proceeding: (a) Where he has ... personal knowledge of disputed evidentiary facts concerning the proceedings ... [and] (e) Where he has knowledge of any other circumstances in which his impartiality might reasonably be questioned." The trial judge's extrajudicial investigation, apparently undertaken during the recess after she acquired Marchese's social security number, gave the judge personal knowledge of a disputed evidentiary fact—Marchese's history of violent behavior.

The judge in Alred conducted an extrajudicial investigation to discover incriminating information about a party in litigation before him. Citing Bussell v. Commonwealth, 882 S.W.2d 111, 112 (Ky. 1994), we commented upon the impropriety of considering "potentially incriminating information about [a party in litigation] from extrajudicial sources." We said: "Recusal is appropriate only when the information is obtained [by the judge] from an extrajudicial source." We further explained: "Because Judge Alred gathered information about the impending matters from extrajudicial sources, he was required to recuse when those cases came before him as judge." 395 S.W.3d at 443 n. 92. (Emphasis added.)

Upon the same subject, the United States Supreme Court stated that a judge's critical, disapproving, or even hostile comments directed to a litigant during a trial "ordinarily do not support a bias or partiality challenge" to disqualify the judge, but "[t]hey may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible." Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (emphasis in original).

After consulting some undisclosed source to obtain extrajudicial information about Marchese pertinent to a contested issue pending before the court, the trial judge was disqualified and at that point was obligated to recuse sua sponte. The judge's bias and antagonism against Marchese was demonstrated by comments she made after receiving the extrajudicial evidence. As further indicated by her refusal to allow Marchese to respond to the newly-disclosed evidence and ordering him to leave the courtroom, the judge's failure to recuse was structural error which indelibly tainted the remainder of the hearing and the issuance of the DVO. "Structural errors are defects affecting the entire framework of the trial and necessarily render the trial fundamentally unfair. Such errors preclude application of the harmless error rule and warrant automatic reversal under that standard." McCleery v. Commonwealth, 410 S.W.3d 597, 604 (Ky. 2013) (citing Neder v. United States, 527 U.S. 1, 8-9, 119 (S.Ct. 1827, 144 L.Ed.2d 35 1999) ). For that reason, we reverse the Court of Appeals and vacate the domestic violence order issued in this matter.

III. THE TRIAL COURT ERRONEOUSLY ACCEPTED AND USED EXTRAJUDICIAL INFORMATION

Our holding in the previous section of this opinion resolves this appeal. However, for further guidance of the bench and bar we address the merits of the evidentiary issue presented. The trial court never explicitly stated a rationale to justify the use of the extrajudicial information she received during the recess. Marchese and the...