State v. Barker

• Decision Date: 18 March 1988
• Docket Number: No. 87-095,87-095
• Citation: 420 N.W.2d 695,227 Neb. 842
• Parties: STATE of Nebraska, Appellee, v. Arthur H. BARKER, Appellant.
• Court: Nebraska Supreme Court

Page 695

420 N.W.2d 695

227 Neb. 842

STATE of Nebraska, Appellee, v. Arthur H. BARKER, Appellant.

No. 87-095.

Supreme Court of Nebraska.

March 18, 1988.

Syllabus by the Court

1. Trial: Judges: Recusal. A judge, who initiates or invites and receives an ex parte communication concerning a pending or impending proceeding, must recuse himself or herself from the proceedings when a litigant requests such recusal.

2. Trial: Judges: Witnesses: Rules of Evidence. The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point. Neb.Evid.R. 605 (Neb.Rev.Stat. § 27-605 (Reissue 1985)).

3. Trial: Judges: Witnesses: Rules of Evidence: Recusal. Although a judge is not sworn as a witness, Neb.Evid.R. 605 contains a bar to the judge's testifying and disqualifies the judge as a competent witness in proceedings over which the judge presides. (Neb.Rev.Stat. § 27-605 (Reissue 1985)).

Thomas M. Kenney, Douglas County Public Defender, and Timothy P. Burns, Omaha, for appellant.

Robert M. Spire, Atty. Gen., and LeRoy W. Sievers, Lincoln, for appellee.

BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and GRANT, JJ., and BRODKEY, J., Retired, and COLWELL, District Judge, Retired.

SHANAHAN, Justice.

Although the information charged Arthur H. Barker with murder in the second degree, see Neb.Rev.Stat. § 28-304 (Reissue 1985), the jury found Barker guilty of the lesser-included offense of manslaughter, see Neb.Rev.Stat. § 28-305 (Reissue 1985), concerning the death of Patricia A. Pappas. As his sole assignment of error, Barker contends that the sentencing judge should have recused himself, as requested by Barker, on account of the judge's ex parte contact with members of the victim's family. Barker's contention presents a question of first impression in Nebraska. We set aside the sentence imposed on Barker and remand this matter for a sentence hearing and imposition of sentence on Barker.

Shortly after the verdict was announced in court, the prosecutor approached the trial judge and informed the court that the victim's parents and sister wished to visit with the judge because the victim's family were nonresidents of Nebraska. The judge conferred with the prosecutor and Barker's lawyer, informing counsel about the family's wish. Barker's lawyer objected to the court's meeting with the victim's family. The prosecutor and Barker's lawyer declined to attend the meeting requested by the family. Apparently in chambers, the judge met with the victim's parents and sister in the absence of counsel and without recording what transpired at that meeting.

Later, immediately before the sentence hearing, for which the presiding judge was the same judge who had visited with the victim's family, Barker's lawyer requested that the judge recuse himself in view of the meeting in question and its prejudice to Barker regarding any prospective sentence. In connection with Barker's request for recusal, the judge recounted what had transpired during his meeting with the victim's family. According to the court, the family was "overwrought" and "upset by the verdict being manslaughter and not second-degree murder." In the course of the meeting, the judge suggested that the family write him so that "first of all, their thoughts could be disclosed in a rational way, and secondly, it would be available to Counsel as well as to the Court." The judge further expressed:

The Court was in no way prejudiced by the meeting with the family and as far as the Court's reassessing its own ability to be fair and consider all the facts and circumstances in this case, its opinion and judgment would not be colored at all by the visit had with the family.

In refusing to recuse himself from the sentence hearing, the judge stated: "Based upon the statements made by the Court on the record at the time you referred to on the record, the Court sees no basis or grounds to recuse itself from this matter."

The presentence report on Barker does not contain any correspondence from the victim's family, although the record indicates that such correspondence was sent by the family. Therefore, in the form presented by this appeal, the record does not contain a verbatim record of the judge's visit with the victim's family, but reflects the judge's characterization or description of what transpired at that meeting. At the sentence hearing, which was attended by members of the victim's family, neither the State nor Barker presented evidence regarding the sentence to be imposed. After counsel's comments, the court sentenced Barker to imprisonment for a term of 6 2/3 to 20 years, which is the maximum penalty of imprisonment prescribed for manslaughter, a Class III felony. See Neb.Rev.Stat. § 2-105(1) (Reissue 1985).

To counter Barker's claim that the trial judge should have recused himself as a result of meeting with the victim's family, the State argues that "[s]ince the appellant has not shown that the sentencing judge was in any way influenced by his contact with the victim's family, there was no error in the refusal of the judge to recuse himself from sentencing [Barker]." Brief for Appellee at 8-9.

[I]t is now clear that the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause.... The defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence even if he may have no right to object to a particular result of the sentencing process.

Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1205, 51 L.Ed.2d 393 (1977).

While consideration of questions reaching constitutional dimensions is unnecessary for disposition of Barker's appeal, the expression in Gardner, supra, does emphasize the unquestioned importance of the sentencing process in the criminal justice system.

Characterizing the burden of proof for a motion to disqualify a judge, we have stated: " ' "A party seeking to disqualify a judge on the basis of bias or prejudice bears the heavy burden of overcoming the presumption of judicial impartiality." ' " State v. Dondlinger, 222 Neb. 741, 751, 386 N.W.2d 866, 872 (1986) (quoting from State v. Gillette, 218 Neb. 672, 357 N.W.2d 472 (1984)).

"A motion to disqualify a trial judge on account of prejudice is addressed to the sound discretion of the trial court.... Generally, the ruling on a motion to disqualify a trial judge on the ground of bias and prejudice will be affirmed on appeal unless the record establishes bias and prejudice as a matter of law."

State v. Dondlinger, supra, 222 Neb. at 751, 386 N.W.2d at 872-73 (quoting from In re Estate of Odineal, 220 Neb. 168, 368 N.W.2d 800 (1985)).

To support its argument, the State directs us to The People v. Hicks, 44 Ill.2d 550, 256 N.E.2d 823 (1970), which involved a conviction for murder and the trial judge's unsolicited ex parte contact with a prospective witness, who was alleged to be a relative of the homicide victim and who asked to be allowed to sit in the front of the courtroom. The Illinois Supreme Court found that the questioned contact did not prevent a fair trial for the defendant and explained:

In our opinion the judge's conversations with [the prospective witness] ... did not give cause for his disqualification, or give rise either to unfairness or a probability of unfairness which fatally infected the trial. Most certainly the occurrences relied upon do not support the major premise of defendant's argument here, viz., that the judge "entertained members of the deceased's family in his chambers prior to trial." To say that any involuntary meeting or conversation, no matter how trivial, gives rise to cause for disqualification would present too easy a weapon with which to harass the administration of criminal justice and to obtain a substitution of judges.

44 Ill.2d at 557, 256 N.E.2d at 827.

The State also suggests that People v. Dunigan, 96 Ill.App.3d 799, 52 Ill.Dec. 247, 421 N.E.2d 1319 (1981), is applicable regarding recusal of a sentencing judge. After the jury found Dunigan guilty of several felonies, the judge fortuitously met the victims at a local tavern and discussed "generalities" with them, which did not relate to any aspect of Dunigan's trial. In Dunigan the court expressed: "[T]he involuntary meeting that occurred between the judge and the victims of the crime did not, in itself, disqualify him from presiding at the sentencing hearing." 96 Ill.App.3d at 813, 52 Ill.Dec. 258, 421 N.E.2d at 1330.

The State believes that the appropriate standard to determine whether prejudice has resulted from an ex parte communication with a presiding judge is expressed in State ex rel. Irby v. Israel, 100 Wis.2d 411, 302 N.W.2d 517 (1981): "An ex parte communication, moreover, is a material error only if the adverse party is prejudiced by an inability to rebut the facts communicated and if improper influence on the decision maker appears with reasonable certainty to have resulted." 100 Wis.2d at 425, 302 N.W.2d at 525.

Finally, the State then refers to State v. Packett, 206 Neb. 548, 294 N.W.2d 605 (1980), in which a prosecutor initiated an ex parte communication with the trial judge and complained about the latitude extended to the defendant's lawyer on cross-examination. Finding that the ex parte contact did not warrant reversal of the defendant's conviction, this court stated:

It would appear that objections to, arguments about, or evidence affecting the limits of cross-examination ought to be made only in the presence of, or after appropriate notice to, opposing counsel. In this case, however, there is nothing in the record from which it may be reasonably inferred that prejudice resulted to the defendant. The record does not show that the defense was subsequently improperly restricted in either direct or cross-examination.

206 Neb. at 552, 294 N.W.2d at 608.

To counter the State's argument, Barker calls our attention to cases such as State...