State v. McBride

• Decision Date: 07 September 1994
• Docket Number: No. 94-0415-CR,94-0415-CR
• Citation: 187 Wis.2d 409,523 N.W.2d 106
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Challoner Morse McBRIDE, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 106

523 N.W.2d 106

187 Wis.2d 409

STATE of Wisconsin, Plaintiff-Respondent, v. Challoner Morse McBRIDE, Defendant-Appellant. ^d

No. 94-0415-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Aug. 8, 1994.

Opinion Released Sept. 7, 1994.

Opinion Filed Sept. 7, 1994.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

MYSE, Judge.

Challoner Morse McBride appeals a judgment of conviction for one count of theft by a bailee as a party to the crime in violation of § 943.20(1)(b), STATS., and three counts of theft by fraud as a party to the crime under § 943.20(1)(d), an order denying her motion for the suppression of physical evidence and an order denying her motion for postconviction relief. McBride contends that the evidence seized pursuant to the execution of the search warrant should be suppressed because the warrant was not issued by a neutral and detached magistrate as required by the United States and Wisconsin Constitutions. McBride further contends that the trial court committed reversible error when it failed to instruct the jury that the value of the items subject to the charge must be proven beyond a reasonable doubt. Because we conclude that the warrant was issued by a neutral and detached magistrate and that McBride waived her objection to the instruction involving proof of value beyond a reasonable doubt by failing to object either at the instructions conference or after the instructions were given, the judgment and the orders are affirmed.

The facts of this case are undisputed. Challoner Morse McBride, a practicing attorney in Door County, Wisconsin, was convicted of one count of being a party to the crime of theft by a bailee under § 943.20(1)(b), STATS., and three counts of theft by fraud under § 943.20(1)(d). The convictions stemmed from the theft of funds from McBride's client, Eulalia I. Addison.

At the time of the conviction, Door County had a single branch of the circuit court presided over by Judge John Koehn. Thomas Fassbender, a special agent for the State Department of Justice, applied to Judge Koehn for a warrant to search McBride's law office. The warrant sought records and documents relating to alleged thefts by McBride from Eulalia I. Addison and the Eulalia I. Addison Foundation. Based upon a finding of probable cause, which is not challenged in this appeal, Judge Koehn signed the search warrant that resulted in the discovery of a series of documents and business records used to obtain the convictions of McBride.

McBride contends that Judge Koehn was not a neutral and detached magistrate as required by the constitution because he harbored actual bias against her. McBride asserts that at the time of Judge Koehn's initial election, she was active in supporting Judge Koehn's opponent and that shortly after Judge Koehn took office she began to have problems with him. Based upon these problems, which included allegations of gender bias, McBride wrote letters to the chief judge of the eighth judicial district explaining the problems she was having with Judge Koehn. The record is silent as to any action taken by the chief judge. In addition to these letters, McBride filed a formal complaint against Judge Koehn with the Wisconsin Judicial Commission. The commission conducted an investigation and subsequently dismissed the complaint after finding that there was no probable cause to proceed further.

During the period that the complaint was pending, Judge Koehn's court reporter advised McBride that Judge Koehn intended to recuse himself from all cases in which McBride appeared as counsel. After Judge Koehn made this announcement, McBride appeared in hundreds of cases filed in Door County and Judge Koehn uniformly disqualified himself in each one of those cases. In over 150 of the judicial assignment orders submitted by Judge Koehn, he cited § 757.19(2)(g), STATS., as the basis for his disqualification. Section 757.19(2)(g) provides that a judge should disqualify himself if he "determines that, for any reason, he or she cannot or it appears that he or she cannot act in an impartial manner."

The State and McBride agree that the constitution requires that "inferences of probable cause be drawn by 'a neutral and detached magistrate' " before a search warrant may issue. Shadwick v. City of Tampa, 407 U.S. 345, 350, 92 S.Ct. 2119, 2122, 32 L.Ed.2d 783 (1972); see also State v. DeSmidt, 155 Wis.2d 119, 131, 454 N.W.2d 780, 785 (1990) ("A search warrant may only issue on the basis of a finding of probable cause by a 'neutral and detached magistrate.' "). If the issuing magistrate does not meet this constitutional mandate, the warrant is invalid. See Coolidge v. New Hampshire, 403 U.S. 443, 450, 91 S.Ct. 2022, 2029, 29 L.Ed.2d 564 (1971).

McBride contends that Judge Koehn was not a neutral and detached magistrate. In support of her contention, McBride cites three United States Supreme Court cases where the Court invalidated a search warrant on the ground that the issuing magistrate was not neutral and detached. A review of these three cases reveals that they are not dispositive of McBride's contention that Judge Koehn was not neutral and detached. In Coolidge, the Court held that the issuing magistrate was not neutral and detached because he was also the chief investigator and prosecutor on the case. Id. In Connally v. Georgia, 429 U.S. 245, 246, 97 S.Ct. 546, 546, 50 L.Ed.2d 444 (1977), the Court invalidated a search warrant on the ground that the justice of the peace was not neutral and detached because he received compensation for each warrant he issued. Finally, in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326-27, 99 S.Ct. 2319, 2324, 60 L.Ed.2d 920 (1979), the Court held that the issuing magistrate was not neutral and detached after he participated in the execution of the warrant. McBride's claim is wholly distinct from the claims made in Coolidge, Connally and Lo-Ji Sales.

McBride contends that Judge Koehn was not a neutral and detached magistrate because he harbored actual bias against her. This court has been unable to find a case that has dealt with this issue, and neither the State nor McBride has cited such a case. However, because McBride's claim centers on the question of whether Judge Koehn was impartial, we find those cases dealing with a defendant's constitutional right to an impartial and unbiased judge to be instructive.

Whether Judge Koehn was a neutral and detached magistrate as mandated by the United States and Wisconsin Constitutions is a question of constitutional fact that we review de novo without deference to the trial court. State v. Ledger, 175 Wis.2d 116, 122, 499 N.W.2d 198, 200-01 (Ct.App.1993). Furthermore, we note there is a presumption that a judge is free of bias and prejudice. See Ex Parte Twintech Indus., Inc., 558 So.2d 923, 926 (Ala.1990); State v. Rossi, 154 Ariz. 245, 741 P.2d 1223, 1225 (1987); Korolko v. Korolko, 33 Ark.App. 194, 803 S.W.2d 948, 950 (1991). To overcome this presumption, the party asserting judicial bias must show that the judge is biased or prejudiced by a preponderance of the evidence. ¹ See Rossi, 741 P.2d at 1225. With this in mind, we now turn to the question of whether Judge Koehn was a neutral and detached magistrate.

In determining whether Judge Koehn was actually biased, we must evaluate the existence of bias in both a subjective and an objective light. See State v. Rochelt, 165 Wis.2d 373, 378-79, 477 N.W.2d 659, 661 (Ct.App.1991). The subjective component is based on the judge's own determination of whether he will be able to act impartially. Id. In determining whether the subjective test is satisfied, it is only necessary to examine Judge Koehn's actions concerning the application for the search warrant. If Judge Koehn subjectively believed he would not be able to act impartially, he would have been required to disqualify himself from hearing the application for the search warrant. Because he did not disqualify himself, we may presume that Judge Koehn believed himself capable of acting in an impartial manner and therefore, our inquiry into the subjective test is at an end. See id. However, the fact that Judge Koehn did not believe that he was subjectively biased does not end our inquiry.

Under the objective test, we must determine whether there are objective facts demonstrating that Judge Koehn was actually biased. See id. Under this test, the defendant must show that the "trial judge in fact treated him unfairly." ² Id. Merely showing that there was an appearance of partiality or that the circumstances might lead one to speculate that the judge was partial is not sufficient. State v. Hollingsworth, 160 Wis.2d 883, 894, 467 N.W.2d 555, 560 (Ct.App.1991).

Here, McBride first contends that Judge Koehn's voluntary recusal in a large number of cases in which McBride appeared as attorney is proof of his prejudice. We do not agree. In the vast majority of cases in which Judge Koehn disqualified himself, he cited § 757.19(2)(g), STATS., as the basis for disqualification. Under § 757.19(2)(g), a judge must disqualify himself if he determines that he cannot act in an impartial manner or if there is an appearance that he is not impartial. Because Judge Koehn was required to disqualify himself if there would be the appearance of bias, the fact that he disqualified himself from McBride's cases, standing alone, does not establish actual bias. As long as no actual bias exists, the appearance of bias is not a sufficient basis upon which to make the constitutional challenge mounted here. See Hollingsworth, 160 Wis.2d at 894, 467 N.W.2d at 560. Therefore, in order for McBride's claim to succeed, she must demonstrate that Judge Koehn was actually biased against her. We conclude that the evidence submitted by McBride is insufficient to show that Judge Koehn was actually biased against her.

While the record provides an ample basis for the judge's conclusion that there would be the appearance of partiality, it does not...