State v. Pierce

• Decision Date: 23 November 2015
• Docket Number: A14-1783
• Parties: State of Minnesota, Respondent, v. John Everette Pierce, Appellant.
• Court: Minnesota Court of Appeals

State of Minnesota, Respondent, v. John Everette Pierce, Appellant.

A14-1783

STATE OF MINNESOTA IN COURT OF APPEALS

November 23, 2015

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).

Affirmed in part and vacated in part

Schellhas, Judge

Dissenting, Minge, Judge^*

St. Louis County District Court

File No. 69HI-CR-13-140

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Mark S. Rubin, St. Louis County Attorney, Karl G. Sundquist, Assistant County Attorney, Hibbing, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Lydia Villalva Lijó, Assistant Public Defender, St. Paul, Minnesota (for respondent)

Considered and decided by Reilly, Presiding Judge; Schellhas, Judge; and Minge, Judge.

UNPUBLISHED OPINION

SCHELLHAS, Judge

Appellant seeks reversal of his conviction of first-degree criminal sexual conduct and a new trial, arguing that the district court erred by denying his motion to remove the assigned judge and that "defects" occurred in his trial. Appellant also seeks vacation of a 50-year domestic-abuse no-contact order and a 50-year harassment restraining order, and he raises additional arguments pro se. We affirm in part and vacate in part.

FACTS

Appellant John Everette Pierce and victim R.S. had a cohabiting romantic relationship that ended in about November 2012. On February 8, 2013, R.S. petitioned for and received a two-year harassment restraining order (HRO) against Pierce, alleging unwanted, distressing contacts in person and through telephone calls and text messages. On March 2, Pierce lured R.S. to a residence that he entered without permission, threatened her with a handgun, forced her into a basement bedroom, and sexually assaulted her. Respondent State of Minnesota charged Pierce with first-degree burglary, two counts of kidnapping, four counts of first-degree criminal sexual conduct, second-degree assault, false imprisonment, felony violation of an HRO, violation of an HRO while possessing a dangerous weapon, felony domestic assault, and terroristic threats.

Pierce moved to dismiss the charges for lack of probable cause and for a change of venue, and he asked the assigned judge to recuse himself. The assigned judge declined to recuse himself and denied Pierce's motions to dismiss and for a change of venue. Piercethen moved to remove the assigned judge for bias. The chief judge of the district court heard and denied the motion.

At a hearing originally set as a pretrial conference, the parties informed the district court that they had stipulated "to have the case decided by the court," and the prosecutor explained his understanding of the parties' agreement as follows:

[W]e will be submitting to the court the first count of the complaint, First Degree Crim/Sexual Conduct. It is my understanding that Mr. Pierce will be waiving his right to a jury trial and stipulating and agreeing to—that the matter can be heard on a court trial.

The stipulation would be as to the evidence in the file, in its entirety, which would include the police reports, any recordings, any medical records, any BCA records, that the court could use to determine and making a finding on the evidence. . . . [I]f the court does determine a finding of guilt due to this agreement, the state would be agreeing to the bottom of the box for a First Degree Crim/Sexual Conduct, which is at 306 months.

It is my understanding and further, your Honor, that the issues will be preserved or any of the issues that came up at the omnibus setting or the pretrial specifically, the removal issue of your Honor, and then also any other issues that were raised, which I believe were only possibly a venue motion and a probable cause.

Defense counsel agreed with the prosecutor's statements.

The district court asked whether reference to "the entire file" meant "all of the discovery that has been filed to date," and the prosecutor said yes. Defense counsel then questioned Pierce regarding his trial rights. Both parties waived "further summation or final argument based on the evidence," and immediately thereafter the court announced its finding of guilt.

The next day, the district court issued detailed written findings, conclusions of law, and an order in which the court adjudged Pierce guilty of first-degree criminal sexual conduct. The court sentenced Pierce to 306 months' imprisonment in accordance with the agreement, issued a 50-year domestic-abuse no-contact order (DANCO) prohibiting Pierce from contacting R.S., and extended R.S.'s unexpired HRO against Pierce for 50 years.

This appeal follows.

DECISION

Judicial removal motion

"A judge must not preside at a trial or other proceeding if disqualified under the Code of Judicial Conduct. A request to disqualify a judge for cause must be heard and determined by the chief judge of the district . . . ." Minn. R. Crim. P. 26.03, subd. 14(3). The Code of Judicial Conduct provides that a judge is disqualified "in any proceeding in which the judge's impartiality might reasonably be questioned," Minn. Code Jud. Conduct Rule 2.11(A), as viewed "from the perspective of a reasonable examiner who is an objective, unbiased layperson with full knowledge of the facts and circumstances," State v. Pratt, 813 N.W.2d 868, 876 n.8 (Minn. 2012) (quotations omitted). "The Code defines . . . 'impartiality' as the absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge." Id. at 876 (quotation omitted).

"[T]he mere fact that a party declares a judge partial does not in itself generate a reasonable question as to the judge's impartiality." Hooper v. State, 838 N.W.2d 775, 790(Minn. 2013) (quotation omitted), cert. denied, 134 S. Ct. 2147 (2014). And "[t]he prohibition against a judge presiding when his or her impartiality might reasonably be questioned leaves considerable room for interpretation and does not provide a precise formula that can automatically be applied." Pratt, 813 N.W.2d at 876 (quotations omitted). Accordingly, "[a] motion to remove [a judge] for cause is committed to the discretion of the trial court and [appellate] court[s] will reverse only for an abuse of that discretion." Hooper, 838 N.W.2d at 790 (quotation omitted).

In this case, Pierce argues that the chief judge erred by denying Pierce's motion to remove the assigned judge, claiming that an objective examination of the facts and circumstances would cause a reasonable examiner to question the assigned judge's impartiality. Pierce points to R.S.'s omnibus-hearing testimony that the assigned judge's daughter was a "good friend" of R.S.'s daughter; that R.S. was a Facebook friend of the assigned judge's daughter; and that R.S. made Facebook posts referencing her sexual assault, at least once referencing and depicting Pierce in connection with the assault. Pierce also asserts that partiality is suggested by certain statements of the assigned judge in an affidavit that he submitted in response to Pierce's motion to remove him, particularly references to Pierce's "concern[ing]" calls to court administration, "ulterior motives" for seeking removal, and lengthy criminal history.

But the disqualification standard requires an examination of all the facts and circumstances—not just those that might cast a shadow on a judge's impartiality. See In re Jacobs, 802 N.W.2d 748, 753 (Minn. 2011) ("Like all legal issues, judges determine appearance of impropriety—not by considering what a straw poll of the only partlyinformed man-in-the-street would show—but by examining the record facts and the law, and then deciding whether a reasonable person knowing and understanding all the relevant facts would recuse the judge." (quotation omitted)). Here, the assigned judge's affidavit reflects that he did not know Pierce or R.S., that he did not know R.S.'s daughter "other than perhaps to say 'hello'" to her as a friend of his own daughter, that his daughter was a college student and not a member of his household, and that he did not discuss Pierce's case with his daughter. The assigned judge also disclaimed "having any personal reason to want to continue to preside [over Pierce's case]" and recounted his duty to "discharge the judge's oath of office in a diligent and impartial manner." And Pierce produced no evidence to suggest that either the assigned judge or his daughter had seen R.S.'s Facebook posts regarding her sexual assault or otherwise had interacted with R.S. or her daughter regarding the assault.

The chief judge correctly noted that the Minnesota Code of Judicial Conduct "requires recusal in any proceeding in which the judge's impartiality might reasonably be questioned" and acknowledged an attenuated connection between the assigned judge and R.S.—through their respective daughters—before concluding that the connection was not "sufficient . . . to create any reasonable question of impartiality." The chief judge therefore acted well within the district court's discretion by denying Pierce's motion to remove the assigned judge. Cf. Jacobs, 802 N.W.2d at 750, 754 (noting that "[a]n examination of the facts and circumstances must . . . take into account the expectation that judges will not allow familial relationships and other interests to affect their decision-making" and rejecting defendant's argument that judge's "spouse's role as anassistant county attorney in the county prosecuting [defendant's] case created an appearance of partiality").

Alleged trial defects

"Generally, there are two types of error: structural error and trial error." Colbert v. State, ___ N.W.2d ___, ___, 2015 WL 6160681, at *6 (Minn. Oct. 21, 2015). "On the one hand, structural errors are defects in the constitution of the trial mechanism" that "affect the entire trial from beginning to end and undermine the structural integrity of the criminal tribunal itself." Id. (quotations omitted)....