Scoot v. U.S.

• Decision Date: 04 December 1987
• Docket Number: No. 86-423.,No. 85-206.,85-206.,86-423.
• Citation: 536 A.2d 1040
• Parties: Monroe W. SCOTT, Jr., Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

536 A.2d 1040

Monroe W. SCOTT, Jr., Appellant, v. UNITED STATES, Appellee.

No. 85-206.

No. 86-423.

District of Columbia Court of Appeals.

Argued February 18, 1987.

Decided December 4, 1987.^*

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Maureen T. Cannon, Public Defender Service, with whom James Klein and Jennifer P. Lyman, Public Defender Service, were on the brief, for appellant.

Saul M. Pilchen, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell and Zinora M. Mitchell, Asst. U.S. Attys., were on the brief, for appellee.

Before ROGERS and STEADMAN, Associate Judges, and NEBEKER, Associate Judge, Retired.^**

NEBEKER, Associate Judge, Retired:

These consolidated appeals stem from appellant's conviction by a jury of a single count of assault with intent to kill while armed, D.C.Code §§ 22-501, — 3202 (1981 & Supp. 1986), and a denial of collateral relief under D.C.Code § 23-110 (1981). Reversal is sought primarily in the collateral attack proceeding on the ground of the trial judge's failure to disclose his then ongoing negotiations for an attorney position with the Department of Justice. The Department of Justice is the federal entity under which this jurisdiction's federal prosecuting authority, the United States Attorney's Office, operates. Appellant submits that the trial judge's undisclosed conflict of interest while presiding over his trial and sentencing deprived him of due process of law. Appellant also assigns as reversible errors in the direct appeal the judge's refusal to instruct the jury on his claim of self-defense, and prosecutorial misconduct during closing arguments. We affirm appellant's conviction and the order denying collateral relief, but for the reasons discussed below, we remand for resentencing.

In October 1984, appellant was indicted for the instant offense as well as for additional counts of assault with a deadly weapon and obstruction of justice. The charge on which he was ultimately convicted, assault with intent to kill while armed, was based on an incident earlier that year in which appellant stabbed one Herbert Hayes with a knife during a fist fight between the two men. The other charges stemmed from an incident occurring a few months thereafter in which appellant was said to have slashed the hand of a principal witness to the Hayes assault and threatened the witness in connection with his anticipated testimony.

A jury trial on the indicted offenses was held before the Honorable Tim C. Murphy in late November and early December 1984. After the government presented its case-in-chief, and upon defense motion, Judge Murphy directed a verdict of acquittal for appellant, but only as to the charge of assault with a deadly weapon. The defense then proceeded with its case which, as to the remaining assault charge, rested on a theory of self-defense. Appellant did not testify on his own behalf. The jury, after hearing all the evidence on both incidents, convicted appellant for his aggravated assault on Hayes and acquitted him of obstruction of justice. In January 1985, Judge Murphy sentenced appellant to a term of imprisonment of twelve to thirty-six years and fined him $500. The sentence was to run concurrently with a sentence imposed on appellant by another Superior Court judge in an unrelated matter. Appellant then timely filed a notice of appeal.

Several months later, in August 1985, appellant moved to vacate his sentence under § 23-110, raising for the first time the conflict arising from Judge Murphy's negotiations with the Department of Justice during the period of appellant's trial and sentencing. As his direct appeal was still pending, appellant successfully moved to hold the appellate proceedings in abeyance until the § 23-110 motion was acted upon by the trial court. In February 1986, the trial court (Walton, J.) denied the motion to vacate without an evidentiary hearing and without actually reaching the merits of the issue presented, citing Womack v. United States, 129 U.S.App.D.C. 407, 395 F.2d 630 (1968). The court held that an evidentiary hearing was not required because the facts bearing on the merits, as fully recounted in an affidavit from Judge Murphy, were not in dispute.¹ We agree with the parties that the merits of the due process claim are before us on an adequate record. We proceed first with this disclosure or recusal issue.

I.

The undisputed facts are that on October 23, 1984, Judge Murphy attended a reception following the investiture of a newly appointed Superior Court judge where he met the Director of the Office of Management Information, Services and Support (OMISS) of the Department of Justice's Executive Office for United States Attorneys (EOUSA). Judge Murphy had known the Director from the days the latter prosecuted cases before him as an Assistant United States Attorney. In the course of their conversation, Judge Murphy mentioned that he was contemplating a career change in 1985.² In response, the Director informed the judge that the position of Assistant Director for the Debt Collection Staff of OMISS had been vacant since July 1984. He said that the available position was managerial in nature and did not directly involve litigation. As explained to Judge Murphy, the Debt Collection Staff provided policy and oversight guidance to the debt collection units of the United States Attorney's Offices across the country. OMISS, under which the Debt Collection Staff operated, had essentially a record-keeping and computer systems management function.

On October 31, 1984, and then again on December 10, Judge Murphy and the Director discussed the directorship vacancy over lunch. On these occasions, the position was described to the judge in detail and was then offered to him "subject to higher approval."³ In the interim, Judge Murphy presided over appellant's jury trial. The case had been certified to the judge by the Felony Clerk's Office on November 15, 1984. On November 23, Judge Murphy conducted a hearing at which he denied appellant's motion for review of detention and for bond pending trial. A separate pretrial hearing on appellant's motion to suppress identification evidence was held before Judge Murphy on November 29. This motion was also denied. On November 30, the jury was impaneled and trial commenced. Following the completion of the trial on December 4, appellant was convicted as charged for the assault on Hayes, and acquitted of the obstruction of justice charge.

On December 24, 1984, Judge Murphy advised the Director of OMISS of his interest in the position and asked him to discuss the matter with his superiors. Judge Murphy was formally offered the job on or about February 6, 1985. Approximately one week beforehand, on January 28, the judge had sentenced appellant on his December 4 conviction to the prison term and fine mentioned above. Then on February 8, Judge Murphy informed the late Chief Judge H. Carl Moultrie I and the Commission on Judicial Disabilities and Tenure of his decision to leave the bench by April 15, 1985, to accept the new position.

Appellant learned of Judge Murphy's negotiations with the Department of Justice approximately two weeks after he was sentenced when an article announcing the judge's retirement and his acceptance of a position with the department appeared in a local newspaper. Judge Murphy had not disclosed the fact of these negotiations to the parties or counsel either before or during the proceedings on appellant's trial and sentencing. In his affidavit, however, Judge Murphy declared that "[his] discussions with [the Director] in no way influenced [his] trial or sentencing decisions."

Appellant contends that Judge Murphy's failure to disclose his then-potential employment interest at the Department of Justice, while presiding over a criminal case, both violated the Code of Judicial Conduct and denied him the due process required by the fifth amendment. Significantly, in his brief to this court and at oral argument, counsel for appellant conceded that there is no basis for concluding Judge Murphy was actually biased against him as a result of the employment negotiations. Simply stated, appellant's due process challenge rests on the theory that he was denied a fair trial because of the "appearance of partiality" created by the judge's failure to disclose his conflict of interest or, in the alternative, to recuse himself from the case. The government counters that Judge Murphy did not violate the judicial code by participating in this case because, given the nature of his negotiations with the department and the type of position he was seeking, no reasonable person would have questioned his ability to preside impartially. On this point, the government emphasizes how far removed the judge's duties with OMISS's debt collection unit, which are managerial in kind and national in scope, are from the Justice Department's prosecution of local criminal matters in the Superior Court through this jurisdiction's United States Attorney's Office. The government argues alternatively that even if a violation of the judicial code is deemed to have occurred, the violation is not of the sort which implicates the denial of due process and requires reversal of the conviction.

Appellant specifically contends that reversal is warranted because Judge Murphy violated Canon 3(C)(1) of the American Bar Association's Code of Judicial Conduct which was adopted for the District of Columbia courts in 1973 by the D.C. Joint Committee on Judicial Administration. E.g., In re Evans, 411 A.2d 984, 996 (D.C. 1980). That canon provides in relevant part that "[a] judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned." ABA/BNA Lawyers' Manual on Professional Conduct, at 01:3003 (Oct. 17, 1984) (emphasis added). By way of illustration, the canon calls for disqualification in instances such as where the presiding judge "has a personal bias or prejudice concerning a party" or...