State v. Fennelly
Decision Date | 09 June 1983 |
Docket Number | No. 81-229,81-229 |
Citation | 461 A.2d 1090,123 N.H. 378 |
Parties | The STATE of New Hampshire v. Robert FENNELLY. |
Court | New Hampshire Supreme Court |
Gregory H. Smith, Atty. Gen. (Paul Barbadoro, Asst. Atty. Gen., on brief and orally), for the State.
Shaheen, Cappiello, Stein & Gordon, Concord (Steven M. Gordon, Concord, on brief, and Robert A. Stein, Concord, on brief and orally), for defendant.
The defendant Robert Fennelly was charged with receiving stolen property in violation of RSA 637:7. After a jury trial in Superior Court (Goode, J.), the defendant was convicted and sentenced. The defendant has appealed, alleging the commission of a multitude of errors by the trial judge. For the reasons which follow, we affirm the defendant's conviction, but remand for resentencing.
The theme underlying most of the defendant's arguments on this appeal is that the trial judge was biased against him and denied him his right to a fair trial. The defendant questions numerous rulings made by the trial judge prior to and during his trial, as well as the judge's general conduct of the trial and the sentencing hearing.
The defendant's first claim is that the trial judge erred when he denied the defendant's motion that he recuse himself. In the motion, the defendant stated that a number of years earlier, when he was a member of the New Hampshire Senate Judiciary Committee, he had participated in a special meeting called to discuss and vote on the qualifications of the trial judge prior to his appointment to the bench. The defendant asserted that he had voted on the record at that time against the trial judge's confirmation. At the hearing the motion, counsel for the defendant stated that the defendant had also taken a "public position" against the nomination of the trial judge.
However, the defendant presented no documentary or other evidence supporting these allegations. The only evidence in the record even remotely connected with the defendant's role in any aspect of any judicial appointment is a document produced by the State, showing that the defendant was present at a meeting on April 29, 1975, during which the senate judiciary committee briefly discussed a proposed bill to establish a judicial selection commission, whose duty it would be to recommend three candidates to the Governor and Executive Council whenever a judicial appointment was to be made. This document does not show the defendant as having made any statements whatsoever, nor does it reveal whether a vote of any kind was actually taken. No evidence in the form of newspaper clippings or any other public materials was presented to support the defendant's claim that his opposition to the trial judge's appointment was a matter of public knowledge.
In contrast, during the hearing on the motion, the trial judge stated that he had never seen the defendant before that time, was unaware of any role the defendant might have played in any judiciary committee meeting, and had no bias against him.
The defendant does not dispute that he could not in fact, have had any formal role in the confirmation of the trial judge's appointment to the bench, since judicial appointments are not within the control of the legislative branch in this State. Opinion of the Justices, 117 N.H. 398, 401, 374 A.2d 638, 639 (1977); see N.H. Const. pt. II, art. 46 and pt. I, art. 37.
Plaistow Bank & Trust Co. v. Webster, 121 N.H. 751, 754, 433 A.2d 1332, 1334 (1981) (citation omitted).
The defendant's failure to present any evidence that the trial judge had "become personally embroiled in criticism" from the defendant, coupled with the trial judge's statement that he had no knowledge of the defendant or his activities, clearly preclude application of the per se disqualification rule in the present case. In addition, the defendant simply failed to present any facts "from which a sane and reasonable mind might fairly infer personal bias or prejudice on the part of the judge." Bricker v. Sceva Speare Hosp., 114 N.H. 229, 233, 317 A.2d 563, 566 (1974) (quoting Hurd v. Letts, 152 F.2d 121, 122 (D.C.Cir.1945)).
Whether the issue of the propriety of recusal is discussed in terms of a "per se " rule or of a "reasonableness" standard, the defendant must show the existence of "bias, or such likelihood of bias, or an appearance of bias that the judge is unable to hold the balance between vindicating the interests of the court and the interests of the accused." State v. Linsky, 117 N.H. 866, 882, 379 A.2d 813, 823-24 (1977) (citing Ungar v. Sarafite, 376 U.S. 575, 588, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964)). Because the defendant failed to make any such showing, we hold that the trial judge committed no error when he denied the defendant's motion to recuse.
The defendant argues further, however, that the trial judge's rulings on certain motions both prior to and during the trial and at the time of sentencing, as well as his general conduct of the trial, reveal that he was in fact biased against the defendant. The defendant therefore claims that his right to a fair trial was violated. He also argues that each of these disputed rulings constitutes an independent ground for reversal on appeal. We will deal with each of the defendant's claims separately, but state as a preliminary matter that our review of the almost 1,200 pages of trial transcript and our consideration of the conduct and rulings of the trial judge reveal a fair, even-handed and impartial treatment of the defendant. "Considering the record as a whole, we cannot say that the presumption of our trial judges' honesty and integrity has been overcome or that there was any bias that influenced the decision in the case." State v. Aubert, 118 N.H. 739, 742, 393 A.2d 567, 569 (1978).
The defendant argues initially that the trial court erred in denying his pre-trial motion for a bill of particulars. He claimed in that motion that the indictments were vague and insufficiently detailed in four principal respects and that as a result, he would be unable adequately to prepare his case, would be subject to prejudicial surprise at trial, and would be insufficiently protected by the indictments for double jeopardy purposes. On appeal, the defendant claims that the indictments insufficiently described the particular items of stolen property he was alleged to have received. In addition to claiming that denial of his motion constituted reversible error, the defendant argues that the denial is evidence of the trial judge's bias against him.
The two indictments in question read:
These indictments clearly set forth the elements of the offenses for which the defendant was charged, the exact location at which he was alleged to have received the stolen goods, the party from whom he received them, the homes from which the goods were stolen, the amount of money paid by the defendant for them and a generic description of the goods themselves. We are also mindful of the fact that the State cooperated fully with the defendant in making extensive pre-trial discovery through which the defendant obtained lists of the items taken during the burglaries in question, statements from the burglars who later sold the items to the defendant, and other extensive information. We have held previously that:
"Whether an indictment is sufficient depends on whether 'it gives the defendant enough information so that he can prepare for trial' ... by setting forth 'all of the necessary elements constituting the offense,' and enables the defendant to 'plead his conviction or acquittal as a bar to further prosecution for the same offense....' "
State v. Taylor, 121 N.H. 489, 495, 431 A.2d 775, 778 (1981) (citations omitted).
We conclude that the State was not required to list in the indictments the specific items the defendant received, particularly in light of the fact that the defendant was entitled to and participated in extensive pre-trial discovery, and considering the fact that, as the State has explained, the...
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...specific language requested by a party, as long as the court otherwise adequately states the law of the case. State v. Fennelly, 123 N.H. 378, ---, 461 A.2d 1090, 1097 (1983); State v. Taylor, 121 N.H. 489, 495-96, 431 A.2d 775, 779 (1981). We have also held that a single instruction should......
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