State v. Bilal

Decision Date03 May 1995
Docket NumberNo. 15261-4-II,15261-4-II
Citation77 Wn.App. 720,893 P.2d 674
CourtWashington Court of Appeals
PartiesThe STATE of Washington, Respondent, v. Abdullah Faruq BILAL, Appellant.

Pattie Mhoon (court appointed), Tacoma, for appellant.

Barbara Corey-Boulet, Deputy Pros. Atty., Tacoma, for respondent.

HOUGHTON, Acting Chief Judge.

Abdullah Faruq Bilal appeals from a conviction of rape in the second degree, contending the trial court erred in certain evidentiary rulings and in failing to recuse itself at the sentencing hearing. He also appeals on grounds of cumulative error, ineffective assistance of counsel and insufficiency of the evidence. We affirm.

On March 25, 1991, RW called the emergency 9-1-1 dispatcher to report she had been raped by Bilal. Officers responded to the call and later that day, Bilal was arrested and taken into custody. Bilal was charged by information with rape in the second degree.

A jury found Bilal guilty of rape in the second degree. Immediately after the verdict was read, Bilal assaulted the trial judge as he sat on the bench.

Prior to sentencing, Bilal submitted affidavits setting forth his belief that because of his assault on the judge, Bilal would not receive a fair and impartial sentence. At the sentencing hearing, Bilal brought a motion for the trial judge to recuse himself. The motion was denied. Bilal appeals.

Bilal contends that the trial judge erred in denying his recusal motion, asserting that the trial judge violated the appearance of fairness doctrine required by the Code of Judicial Conduct in sentencing Bilal, after Bilal assaulted him in open court. The State counters that remand on this issue would reward a defendant for outrageous courtroom behavior.

"Under the appearance of fairness doctrine, a judicial proceeding is valid only if a reasonably prudent and disinterested observer would conclude that all parties obtained a fair, impartial, and neutral hearing." 1 See State v. Ladenburg, 67 Wash.App. 749, 754-55, 840 P.2d 228 (1992). Before we can find a violation of this doctrine, however, there must be evidence of a judge's actual or potential bias. See State v. Post, 118 Wash.2d 596, 619 n. 9, 826 P.2d 172, 837 P.2d 599 (1992); State v. Carter, 77 Wash.App. 8, 888 P.2d 1230 (1995); State v. Eastabrook, 58 Wash.App. 805, 816, 795 P.2d 151, review denied, 115 Wash.2d 1031, 803 P.2d 325 (1990).

This is a case of first impression in Washington. However, other jurisdictions have dealt with the issue of trial court recusal under an appearance of impartiality analysis in circumstances of assault or threat by a party or person associated with a party. See Annotation, Disqualification of Judge because of Assault or Threat Against Him by Party or Person Associated With Party. 25 A.L.R.4th 923 (1983). We note that the federal courts are governed by the federal rules of judicial conduct. See 28 U.S.C. § 455 (federal bench regulated by the appearance of impartiality standard). We further note that other state jurisdictions apply an appearance of impropriety standard similar to Washington's appearance of fairness doctrine. Regardless of the standard used, however, all jurisdictions agree that a defendant should not benefit from his or her own misbehavior and that recusal lies within the sound discretion of the trial court. See, e.g., Bisignano v. Municipal Court of Des Moines, 237 Iowa 895, 23 N.W.2d 523 (1946), cert. denied, 330 U.S. 818, 67 S.Ct. 674, 91 L.Ed. 1270 (1947) (judge not required to recuse after being assaulted by defendant while court was in session).

In Wilks v. Israel, 627 F.2d 32 (7th Cir.1980), cert. denied, 449 U.S. 1086, 101 S.Ct. 874, 66 L.Ed.2d 811 (1981), the defendant was uncooperative throughout the trial. At a pre-trial hearing, the defendant threw a stamping machine and microphone at the judge. Later, outside the presence of the jury, he assaulted the judge. The Seventh Circuit, on a petition for habeas corpus, found that Wilks had received a fair trial, stating that:

[a] petitioner's deliberate attack on the trial judge calculated to disrupt the proceedings will not force a judge out of a case. Mayberry v. Pennsylvania, 400 U.S. 455, 463, 91 S.Ct. 499, 504, 27 L.Ed.2d 532 [893 P.2d 676] (1971). To permit such an attack to cause a new trial before a new judge would encourage unruly courtroom behavior and attacks on the trial judge and would greatly disrupt judicial administration.

Wilks, at 37.

Similarly, in Fitzgerald v. State, 5 Md.App. 558, 248 A.2d 667 (1968), the defendant was convicted of assault. After the verdict was read, he threw a chair at the trial judge. The defendant later apologized, but made no motion for mistrial or disqualification. On appeal, the court held the issue had not been preserved, but also noted that since the conviction had already been determined and the trial court judge had shown restraint in sentencing, there was no reason for the trial judge to disqualify himself. Fitzgerald, 248 A.2d at 670.

Other jurisdictions similarly follow the rule that a party cannot demand recusal after threatening or assaulting the judge, but rather that decision generally rests with the judge. In State v. Prater, 583 So.2d 520 (La.App.1991), the defendant sent a series of threatening letters to the judge throughout the course of the trial. Prior to sentencing, the defendant moved for the judge's recusal claiming a violation of the appearance of impropriety standard. The motion was denied. On appeal, the trial court's refusal to recuse was upheld on the basis that:

[g]ranting Prater's motion to recuse the trial judge based upon conduct by Mr. Prater would open the doors for any defendant to get rid of a presiding judge by the simple expedient of making a threat against the judge.

Prater, at 527-8. See also In re Marriage of Johnson, 40 Colo.App. 250, 576 P.2d 188 (1977) (recusal not required where wife made motion after husband threatened her, attorney and court); Smith v. District Court For Fourth Judicial Dist., 629 P.2d 1055 (Colo.1981) (threats overheard by officer and relayed to judge; refusal to recuse upheld); State v. Brown, 121 Idaho 385, 825 P.2d 482, 489 (1992) (trial court not required to disqualify itself after learning judge was on defendant's death threat list).

Genuine threats made outside of the courtroom, however, may warrant recusal. In U.S. v. Greenspan, 26 F.3d 1001 (10th Cir.1994), the FBI investigated allegations that the defendant, as part of an interstate conspiracy, had contracted to kill the judge and his family. FBI agents told the trial judge about the conspiracy after the defendant had been convicted, but before sentencing. At the sentencing hearing, Greenspan brought a motion to recuse the judge, based upon the alleged threats. The motion was denied. On appeal, the court found that in light of the extensive extrajudicial...

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