State v. Putnam, 95-344

• Decision Date: 12 January 1996
• Docket Number: No. 95-344,95-344
• Citation: 164 Vt. 558,675 A.2d 422
• Parties: STATE of Vermont v. Joshua S. PUTNAM.
• Court: Vermont Supreme Court

Page 422

675 A.2d 422

164 Vt. 558

STATE of Vermont v. Joshua S. PUTNAM.

No. 95-344.

Supreme Court of Vermont.

Jan. 12, 1996.

On Appeal from District Court of Vermont, Unit No. 1, Windham Circuit; Stephen B. Martin, J.

Dan M. Davis, Windham County State's Attorney, and James Maxwell, Deputy State's Attorney, Brattleboro, for plaintiff-appellee.

Charles S. Martin of Martin & Paolini, Barre, and Stephen L. Fine, Athens, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

DOOLEY, Justice.

Defendant, who has been charged with two counts of sexual assault, moved to disqualify Judge Theresa DiMauro, the presiding judge in the Windham District Court. Pursuant to V.R.Cr.P. 50(d)(3), Judge DiMauro referred the disqualification motion to the administrative judge for the trial courts, who denied the motion. We granted an interlocutory appeal. We affirm.

The disqualification motion is before us on a sparse factual record. State police officers stationed in the Rockingham barracks conducted the investigation of the sexual assaults allegedly committed by defendant. The officer who led the investigation, Detective Sergeant David Tetrault, is on the State's witness list. Two other officers, Troopers Burns and Cutting, were also involved in the investigation. Judge DiMauro is married to Vincent DiMauro, who is a state police trooper also stationed in the Rockingham barracks. Trooper DiMauro was not part of the investigation, nor do any of the troopers who may testify have a supervisory relationship over him. In fact, there are two separate units that work out of the barracks: the bureau of criminal investigation in which the potential witnesses work and the uniform patrol division in which Trooper DiMauro works. Defendant presented no evidence indicating either that Trooper DiMauro has any connection to the arrest or investigation of defendant, or that Judge DiMauro is familiar with the investigating officers.

The heart of the decision of the administrative judge is found in his rejection of defendant's claim that "at least one close working associate of [Judge DiMauro's] husband and perhaps more than one will testify":

The assertion that "one close working associate" will testify, [with whom a personal relationship exists between Trooper DiMauro and/or Judge DiMauro,] is unsupported by any evidence. The defense does not name the "close associate" or indicate whether this "associate" has any connection to this case and/or is expected to testify. Although it may be reasonable to believe that personal, as well as professional relationships exist, the defense does not offer any detail to support the assertion. While the existence of a personal relationship between either Judge DiMauro and/or her husband and a potential witness in this proceeding would be relevant to this court's inquiry, no such evidence is presented in this case.

The judge also concluded that the marital relationship between a judge and a state police officer who works in the same barracks as an officer who will testify in a case before the judge does not automatically require disqualification of the judge.

Some background in our law is important to understanding the issue before us. We have adopted, with some minor technical variations, the 1990 American Bar Association Model Code of Judicial Conduct. See Reporter's Notes, A.O. 10, Canon 3. The Code contains specific per se disqualification rules, none of which are involved here. See A.O. 10, Canon 3E(1)(a)-(d). It also contains the general standard relied upon by the defendant here: a judge must disqualify himself or herself "in a proceeding in which the judge's impartiality might reasonably be questioned." Id., Canon 3E(1).

We have recently detailed our approach to disqualification issues, relying on procedural reforms. Our former approach was set out in Richard v. Richard, 146 Vt. 286, 288, 501 A.2d 1190, 1191 (1985), where we held that a judge must be disqualified "whenever a doubt of impartiality would exist in the mind of a reasonable, disinterested observer." We observed that " 'if the slightest question exists, all doubts should be resolved' in favor of disqualification," id. (quoting Condosta v. Condosta, 137 Vt. 35, 36, 401 A.2d 897, 898 (1979)), a standard required because the judge subject to the motion to disqualify would decide if disqualification were appropriate. After Richard, we adopted a procedure for referring trial judge disqualification motions to the administrative judge for the trial courts. See V.R.Cr.P. 50(d)(3). As a result, the "slightest question" standard ofRichard is no longer the law. See Ball v Melsur Corp., 161 Vt. 35, 39-40, 633 A.2d 705, 710 (1993). In Ball, we emphasized that a judge subject to a disqualification motion is accorded a presumption of honesty and integrity and that because reasonable minds can differ on an issue, discretion must be accorded to the administrative judge for the trial courts in deciding disqualification issues. Id. at 39-40, 633 A.2d at 709-10. We held that the standard for review of disqualification decisions of the administrative judge is "abuse of discretion, that is, if the record reveals no reasonable basis for the decision." Id. at 40, 633 A.2d at 710.

Defendant urges us to impose a per se rule that disqualifies a trial judge from a criminal case if his or her spouse is a police officer and works in the same barracks as an officer who is a potential witness in the case. For two major reasons, we decline to impose the rule sought by defendant.

First, "per se" rules are generally inappropriate in judicial disqualification issues of this type, and such a rule is inappropriate here. The Code contains detailed per se disqualification rules for circumstances where we have decided that disqualification is always required. See A.O. 10, Canon 3E(1)(a)-(d). Thus, the drafting is generally inconsistent with adding new per se rules. For this primary reason, we declined to fashion a per se disqualification rule in Ball to cover instances where the judge is subject to a judicial conduct complaint by a lawyer who is appearing in a case before the judge. See Ball, 161 Vt. at 39, 633 A.2d at 709-10 ("On its face, the 'reasonable disinterested observer' standard of Canon 3C(1) [now 3E(1) ] forestalls such an inflexible per se rule, but instead enables the decisionmaker to take particular circumstances into account.").

Moreover, we clearly decided to move away from overly rigid disqualification rules when we entrusted these decisions to the administrative judge. Thus, we stated in Ball that because "reasonable minds may differ on an issue, a certain degree of discretion inheres in the determination of whether a judge's impartiality may be doubted in a given situation." Id. at 39, 633 A.2d at 709. We held that where the trial judge does not grant a disqualification motion, "the question of recusal hinges on the administrative judge's exercise of discretion." Id. at 40, 633 A.2d at 710.

There is nothing special about the conflict involved here that necessitates a per se rule in spite of our holding in Ball. ¹ Courts interpreting identical or similar judicial ethics standards have not adopted per se rules in cases where friends or associates of a judge appear as witnesses, see United States v. Kehlbeck, 766 F.Supp. 707, 712 (S.D.Ind.1990) (no per se disqualification where "friend appears as counsel, party, or witness"; collecting cases); State v. Romano, 456 A.2d 746, 754 (R.I.1983) (no per se rule because of judge's "professional, social, or business relationships"), or in cases where a spouse or other relative is employed by, or is otherwise aligned with, a party appearing before the judge, see Bernard v. Coyne, 31 F.3d 842, 845 (9th Cir.1994) (appeals judge not disqualified from bankruptcy case in which trustee challenged exemptions claimed by debtors even though judge's wife was United States Bankruptcy Trustee for judicial district); Hewlett-Packard Co. v. Bausch & Lomb, Inc., 882 F.2d 1556, 1568 (Fed.Cir.1989) (no per se rule where judge's son employed by plaintiff), cert. denied, 493 U.S. 1076, 110 S.Ct. 1125, 107 L.Ed.2d 1031 (1990); United Farm Workers of America, AFL-CIO v. Superior Court, 170 Cal.App.3d 97, 216 Cal.Rptr. 4, 10 (1985) (in suit over labor strike, judge not disqualified because his wife worked two days for plaintiff employer as replacement worker; disqualification decision based on applicable factors); State v. Calhoun, 306 Md. 692, 511 A.2d 461, 491 (1986) (in post-conviction relief proceeding involving defendant who killed police officer, judge not disqualified because his father was chief of same police department for fifteen years, because he had other relatives who were police officers, or because his cousin was police officer who was killed in line of duty), cert. denied, 480 U.S. 910, 107 S.Ct. 1339, 94 L.Ed.2d 528 (1987); People v. Taylor, 126 Misc.2d 537, 482 N.Y.S.2d 968, 970-71 (County Ct.1984) (no disqualification of judge because his wife was probation officer and defendant's father was also probation officer in same county). We see no reason to reject these precedents because the witness is a police officer.

Second, it was defendant's burden, as moving party, to make a record on which a decision could be reached. See Ball, 161 Vt. at 40, 633 A.2d at 710 (moving party has burden to make "clear and affirmative showing of bias and prejudice"). The record here is virtually nonexistent. At best, this is a case where a party seeks a judge's disqualification because a person who works in the same office as the judge's husband may be a witness, giving unspecified testimony. We know that the office contains twelve police officers, in two divisions (patrol officers and criminal investigators), and the witness or witnesses are not in the same division as the judge's husband. We also know there is no supervisory relationship between the witness or witnesses and the...