State v. Bader

• Decision Date: 13 September 2002
• Docket Number: No. 98-472.,98-472.
• Citation: 808 A.2d 12,148 N.H. 265
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Seth BADER.

148 N.H. 265

808 A.2d 12

The STATE of New Hampshire

v.Seth BADER.

No. 98-472.

Supreme Court of New Hampshire.

Argued Feb. 6, 2002.

Opinion Issued Sept. 13, 2002.

Philip T. McLaughlin, attorney general(N. William Delker, senior assistant attorney general, on the brief and orally), for the State.

Law Office of Paul J. Haley, of Hillsborough (Paul J. Haley on the brief and orally), for the defendant.

DALIANIS, J.

The defendant, Seth Bader, was convicted of first degree murder, seeRSA 630:1-a (1996), and conspiracy to commit first degree murder, seeRSA 629:3(1996), in the death of his former wife, Vicki Lynn Bader, following a jury trial in the Superior Court(Murphy , J.).The defendant appeals both convictions and the denial of his motion for a new trial.We affirm.

This appeal has a convoluted procedural history.Following his convictions in the superior court, the defendant filed a notice of appeal, which alleged thirteen grounds for error.Subsequent to our acceptance of his appeal, the defendant filed a motion for a new trial in the superior court.We granted the defendant's motion to remand the case to the superior court so that it could decide the five issues raised in the motion for a new trial.In one issue, the defendant contended that now-Chief Justice Walter L. Murphy(Judge Murphy) should have recused himself from presiding over the defendant's trial, and he moved to recuse Judge Murphy from presiding over the motion for a new trial.After a hearing, the Superior Court(Murphy , J.) denied the defendant's motion to recuse.

After a subsequent hearing, the superior court rejected the remaining four issues in the defendant's post-trial motion.Thereafter, we granted the defendant's motion to amend his notice of appeal to include the five issues raised in his motion for a new trial.In his brief, however, the defendant pursued only the five issues raised in his motion for a new trial.Consequently, we limit our review to those issues, specifically: 1) recusal of the trial judge; 2) discovery of exculpatory evidence; 3) hearsay evidence; 4) alleged intra-jury misconduct; and 5) newly discovered evidence.SeeState v. Bathalon,146 N.H. 485, 490, 778 A.2d 1109(2001)(issues raised in the notice of appeal, but not briefed, are deemed waived).

I. Recusalof the Trial Judge

After the defendant was arrested in April 1997 and charged with murder and conspiracy to commit murder in the death of his former wife, the administrator of her estate brought a wrongful death suit against the defendant on behalf of the estate.The administrator also sought an ex parte attachment on the defendant's assets and an injunction to bar him from expending any of those assets.Judge Murphy granted the ex parte attachment and ordered the defendant not to make "any extraordinary expenditures" without court approval.

Judge Murphy also granted the defendant's request for an extension of time to file an objection and request for hearing on the attachment.The attachment was later modified by agreement of the parties and the matter was deferred pending resolution of the criminal charges.In May 1997, then-Chief Justice Joseph P. Nadeau assigned all criminal, civil or equity cases involving the defendant to Judge Murphy.

Judge Murphy set bail at $750,000, an amount the defendant contends he could have met but for the previously-ordered attachment.The defendant then petitioned this court for a writ of habeas corpus in order to challenge the bail order.On September 18, 1997, we denied the defendant's petition.On the same date, the superior court was notified that the defendant's counsel in the civil cases withdrew from representation.In October 1997, the defendant's new counsel in the civil cases filed a motion for summary judgment and a motion to vacate the attachment.In November 1997, "[i]n light of the allegations contained in [the]defendant's pleadings ... [and] having been specially assigned to, and having made various rulings in the criminal case," Judge Murphy recused himself from further participation in the civil cases.At a later hearing on the status of counsel, Judge Murphy declined to discuss the merits of the defendant's argument regarding the civil cases, stating that he had recused himself "because of a writ of habeas corpus that was filed on [the defendant's] behalf, which I thought contained all kinds of misstatements."

The defendant contends that Judge Murphy's failure to recuse himself from presiding over both his trial and motion for a new trial violated his due process rights under the United States and New Hampshire Constitutions.We first address his claim under the State Constitution, State v. Ball,124 N.H. 226, 231, 471 A.2d 347(1983), and look to the principles of fundamental fairness, seeState v. Graf,143 N.H. 294, 302, 726 A.2d 1270(1999).Because the Federal Constitution offers the defendant no greater protection in these circumstances, we need not conduct a separate federal analysis.Seeid.Accordingly, we rely upon our State Constitution and cite federal opinions for guidance only.Ball,124 N.H. at 232-33, 471 A.2d 347.

The Code of Judicial Conduct requires disqualification of a judge in a proceeding in which the judge's impartiality might reasonably be questioned and to avoid even the appearance of impropriety.SeeBlaisdell v. City of Rochester,135 N.H. 589, 593, 609 A.2d 388(1992);Sup.Ct. R. 38, Canon 3C(1)(amended 2001, current version at Canon 3E(1))."Whether an appearance of impropriety exists is determined under an objective standard, i.e. , would a reasonable person, not the judge himself, question the impartiality of the court."Blaisdell,135 N.H. at 593, 609 A.2d 388.

The defendant argues that because Judge Murphy presided over both the tort action and the criminal proceeding, which stemmed from the same alleged transaction, his grant of the ex parte pre-trial attachment necessarily meant that he found the defendant"very likely guilty of the criminal charge and ... very likely lacking any defense."He contends that this "mindset" required Judge Murphy's recusal from the trial and the post-trial motions.Further, he contends the judge had received evidence concerning the defendant in the ex parte civil attachment proceeding before being assigned to the criminal matter, and that the judge had become "embroiled in mutual criticism with the defendant."He argues that Judge Murphy's statement regarding the "misstatements" in the petition for writ of habeas corpus meant that the judge had

concluded that the defendant was not telling the truth and that he could no longer preside over the matter....It is reasonable to assume that if his hostility towards the defendant stemming from the criminal matter was sufficient to recuse himself from the civil matter, it must have extended to any and all cases in which the defendant and Judge Murphy came face-to-face....[O]nce bias sufficient to require recusal exists in any case, it exists in all cases involving that judge and that litigant.

We disagree.

The defendant's first argument ignores the fact that the executor of Vicki Bader's estate sought an ex parte attachment of his assets in order to ensure that they would be available to satisfy any potential judgment in the civil action.RSA 511-A:8 (1997) states, in pertinent part:

Upon application to the court, in exceptional circumstances, an attachment may be ordered in advance of notice to the defendant if the plaintiff establishes probable cause to the satisfaction of the court of his basic right to recovery and the amount thereof and in addition thereto the existence of any of the following:

I.There is substantial danger the property sought to be attached will be damaged, destroyed, concealed, or removed from the state and placed beyond the attachment jurisdiction of the court.

That Judge Murphy found the estate's administrator to have shown facts upon which he could determine that the administrator had a claim and that it was likely that the defendant's assets would be placed beyond the attachment jurisdiction of the court does not mean that the court found the defendant both "very likely guilty" of, and lacking any defense to, the criminal charge.While the civil and criminal cases were grounded in the same facts, they cannot be equated, and the defendant's argument ignores the different standards and burdens of proof germane to each.We find the defendant has failed to show any evidence of Judge Murphy having acquired the "mindset" to which the defendant refers.

The defendant's remaining arguments also fail to demonstrate that Judge Murphy erred in not recusing himself from hearing the criminal trial or post-trial motions.In State v. Fennelly,123 N.H. 378, 461 A.2d 1090(1983), we stated that, due to the probability of unfairness, a per se rule of disqualification applies when a judge "has pecuniary interests in the outcome, ... has become personally embroiled in criticism from a party before him, ... has heard evidence in secret at a prior proceeding, or ... is related to a party."Fennelly , 123 N.H. at 384, 461 A.2d 1090(quotation omitted).None of these factors is present here.

That the judge may have received evidence concerning the defendant in connection with the ex parte attachment petition before being assigned to the criminal matter does not rise to the level of "hearing evidence in secret at a prior proceeding."Hearing evidence in secret refers to a trial judge acting as a "one-man grand jury" with the power to compel witnesses to appear before the judge in secret to testify about suspected crimes.SeeState v. Aubert,118 N.H. 739, 741, 393 A.2d 567(1978);see alsoIn re Murchison,349 U.S. 133, 133-34, 75 S.Ct. 623, 99 L.Ed. 942(1955).No such situation existed in this case.While an ex parte attachment petition was filed, there was no secrecy involved.The defendant was afforded the opportunity to object and request a hearing.The attachment was subsequently modified...