State v. Chamberlin

• Decision Date: 19 July 2007
• Docket Number: No. 79712-9.,79712-9.
• Citation: 161 Wn.2d 30,162 P.3d 389
• Parties: STATE of Washington, Respondent, v. Scott CHAMBERLIN, Appellant.
• Court: Washington Supreme Court

162 P.3d 389

161 Wn.2d 30

STATE of Washington, Respondent, v. Scott CHAMBERLIN, Appellant.

No. 79712-9.

Supreme Court of Washington, En Banc.

Argued May 15, 2007.

Decided July 19, 2007.

Eric Broman, Nielsen Broman & Koch PLLC, Seattle, for Appellant.

Gregory Marshall Banks, Island County Prosecutor's Office, Coupeville, for Respondent.

Lila Jane Silverstein, Washington Appellate Project, Sarah A. Dunne, ACLU, Nancy Lynn Talner, Seattle, Amicus Curiae-American Civil Liberties.

Lila Jane Silverstein, Washington Appellate Project, Amicus Curiae-Washington Association of Criminal Defense Lawyers.

Pamela Beth Loginsky, Wash. Association of Prosecuting Attorneys, Olympia, Amicus Curiae-Washington Association of Prosecuting Attorneys.

C. JOHNSON, J.

¶ 1 This case involves direct review of a judge's denial of a motion to suppress evidence obtained from the execution of a search warrant authorized by the same judge. Scott Chamberlin appeals the judge's denial of a motion to have the suppression motion heard by a different judge than the judge who issued the warrant. Chamberlin also challenges the veracity of the informant and whether probable cause existed to issue the search warrant. We accepted review and affirm.

FACTS

¶ 2 Randall Paxton, the informant, was arrested for driving while under the influence, attempting to elude a pursuing police vehicle, and reckless driving. Clerk's Papers (CP) at 15. Paxton told the arresting officer he was under the influence of methamphetamine and marijuana. He stated that he got the drugs from Chamberlin and offered to provide a statement and testify against Chamberlin. Police told him that they would not make any deal regarding his criminal charges. CP at 38-39. Nonetheless, Paxton gave a tape-recorded statement in which he described the transaction with Chamberlin. CP at 37-43. Based primarily on that statement, the Island County sheriff's office presented an affidavit for a search warrant to Judge Hancock.

¶ 3 The affidavit for the search warrant identified Paxton by name and relayed Paxton's claim that he purchased the drugs at Chamberlin's home, Chamberlin's address, and Paxton's description of the home's location. CP at 60-62. The affidavit described how Chamberlin retrieved the methamphetamine from a black duffel bag on a coffee table. Inside the duffel bag was a plastic "ziplock" bag containing roughly three to four ounces of methamphetamine. Paxton said that Chamberlin weighed out 1.75 grams of methamphetamine on a digital scale and Paxton paid $45 for it. The affidavit relayed Paxton's statement that he left the home and injected the methamphetamine. Paxton said he returned that day and was given marijuana from the same black bag from which Chamberlin had retrieved the methamphetamine. Paxton believed there was at least three-quarters of an ounce of marijuana in the duffel bag. He indicated he had been buying drugs from Chamberlin for around four months and that each time the drugs were kept either in the black duffel bag or a black metal lockbox. The affidavit contains the averment that Paxton was not threatened with or promised anything in regard to his pending charges. The affiant averred, "Paxton states that he had been doing well until CHAMBERLAIN [sic] provided him with methamphetamine approximately 4 months ago." CP at 62.¹

¶ 4 Judge Hancock issued a search warrant for Chamberlin's home. CP at 47. Based largely on evidence uncovered in that search, Chamberlin was charged with one count of possession with intent to manufacture or deliver marijuana. He was also charged with possession with intent to manufacture or deliver methamphetamine.

¶ 5 At a readiness hearing, defense counsel expressed concern about whether Judge Hancock could be impartial in hearing the suppression motion. Judge Hancock then said: "If, indeed, I issued the warrant in this case, I'm sure that I did read carefully the application for the warrant, sworn testimony in support of the warrant, issued the warrant." Report of Proceedings (RP) 1 RP at 5.² Judge Hancock indicated he did not remember issuing the warrant. He then said, "[I] also believe I would be capable of fairly and impartially hearing any motion to suppress despite the fact that I issued the warrant." 1 RP at 5. Concluding, he said he would review the warrant for issues he might have missed and, if wrong, suppress the evidence.

¶ 6 At a suppression hearing the defense asked Judge Hancock to recuse himself. 2RP at 2-5. Chamberlin said he did not want to use his statutory right to file an affidavit of prejudice. 2RP at 5-6. Judge Hancock denied the request. He stated that he did not know why he would not be fair and impartial. 3RP at 19.

¶ 7 Judge Hancock denied the suppression motion. 3RP at 40-48. He determined that the affidavit established Paxton's basis of knowledge. Judge Hancock also determined Paxton had the requisite veracity, finding he was a named citizen informant, he had given a statement against penal interest, and he gave a detailed description that established Paxton's credibility. After a bench trial, Chamberlin was found guilty of count II, possession of methamphetamine with intent to deliver in violation of RCW 69.50.401(2)(b), not guilty of count I, and sentenced to a standard range sentence of 16 months. CP at 3, 8.

ANALYSIS

¶ 8 Chamberlin argues Judge Hancock should have recused himself, citing actual bias and the appearance of fairness, and asks that the conviction be reversed and the case remanded for a suppression hearing before a different judge. Br. of Appellant at 6-14.³ The State argues that there is no evidence of actual bias and that the weight of legal authority supports the view that this scenario does not violate due process, the appearance of fairness doctrine, or the principles underlying the Washington Code of Judicial Conduct (CJC), Canon 3(D)(1). Br. of Resp't at 4-8.

¶ 9 Turning first to the appearance of fairness, Chamberlin argues that recusal was required based on the appearance of fairness doctrine and CJC Canon 3(D)(1). Evidence of a judge's actual or potential bias must be shown before an appearance of fairness claim will succeed. State v. Post, 118 Wash.2d 596, 619, 826 P.2d 172, 837 P.2d 599 (1992). Under the CJC, which is designed to provide guidance to judges and candidates for judicial office, "[j]udges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned. . . ." CJC Canon 3(D)(1). See also State v. Dominguez, 81 Wash.App. 325, 328, 914 P.2d 141 (1996) (judge must disqualify self if "his impartiality may reasonably be questioned").⁴

¶ 10 Chamberlin argues that potential bias is inherent in the scenario here, relying on three cases: Brent v. State, 929 So.2d 952 (Miss.Ct.App.2005), cert. denied, 929 So.2d 923 (Miss.2006); Russell v. Lane, 890 F.2d 947 (7th Cir.1989); Rice v. McKenzie, 581 F.2d 1114 (4th Cir.1978). Both Russell and Rice involve instances where the judge essentially sat on the appeal of his own case. This practice is clearly banned by federal law and practice. "[I]t is considered improper — indeed is an express ground for recusal, see 28 U.S.C. § 47 — in modern American law for a judge to sit on the appeal from his own case." Russell, 890 F.2d at 948 (citing Rice). While Brent involved a judge issuing the search warrant and denying a suppression motion. Important to the result was that the same judge, then acting as an assistant district attorney, had previously prosecuted Brent. Brent, 929 So.2d at 955. None of these cases support Chamberlin's argument under the facts of this case.

¶ 11 Amicus ACLU argues that participation in the investigatory process violates due process. Br. of Amicus ACLU at 11. ACLU argues that a judge who issues a warrant cannot be wholly disinterested in the suppression or admission of the evidence thereby obtained. Both Chamberlin and the ACLU, in essence, are advocating for a rule of automatic recusal of any judge from hearing a challenge to a search warrant he or she issues.

¶ 12 The right to a fair hearing under the federal due process clause prohibits actual bias and "`the probability of unfairness.'" Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975) (quoting In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955)). In certain instances the duty to recuse is nondiscretionary because the "probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable." Withrow, 421 U.S. at 47, 95 S.Ct. 1456. These instances include where the adjudicator has a pecuniary interest in the outcome or where the judge has been the target of personal abuse or criticism from the party before him. An assertion of an unconstitutional risk of bias must overcome a presumption of honesty and integrity accruing to judges. See Withrow, 421 U.S. at 47, 95 S.Ct. 1456; see also Jones v. Halvorson-Berg, 69 Wash.App. 117, 127, 847 P.2d 945 (1993) (presumption judges perform functions regularly and properly and without bias or prejudice).

¶ 13 The ACLU cites Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 in support of its argument that due process was violated here. In Murchison, the judge conducted secret grand jury proceedings, acting both as investigator, sole juror, and charging authority. The judge in Murchison interrogated two policemen. Based on the "secret hearings," the judge charged Murchison with perjury and the second police officer with contempt. The same judge then tried, convicted, and sentenced the police officers. The ACLU argues that, like the judge in Murchison, Judge Hancock acted as part of the investigatory process by reviewing evidence in an ex parte proceeding at which the defendant was not present, did not present evidence, and was not represented by counsel.

¶ 14 This analogy to Murchison fails in several regards. The judge in Murchison became "part of the prosecution and assumed an...