State v. Rameau

• Decision Date: 29 October 1996
• Docket Number: No. 7810,Docket No. Y,7810
• Citation: 685 A.2d 761
• Parties: STATE of Maine v. Daniel J. RAMEAU. DecisionLawor 95 784.
• Court: Maine Supreme Court

Page 761

685 A.2d 761

STATE of Maine v. Daniel J. RAMEAU.

Decision No. 7810.

Law Docket No. Yor 95 784.

Supreme Judicial Court of Maine.

Argued Sept. 5, 1996.

Decided Oct. 29, 1996.

Michael Cantara, District Attorney, Alfred, for the State.

Robert A. Levine (orally), Portland, for Defendant.

Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA and LIPEZ, JJ.

CLIFFORD, Justice.

Daniel J. Rameau appeals from the order entered in the Superior Court (Cumberland County, Crowley, J.) revoking Rameau's probation. The court held the hearing on the revocation of Rameau's probation following a criminal trial at which he was acquitted of the same conduct that formed the basis of his revocation proceeding. Rameau contends that the Judge who entered the revocation order should have recused himself from the revocation proceedings and that the admission at the probation hearing of the alleged victim's testimony from the criminal trial violated Rameau's constitutional rights to due process and to confront witnesses testifying against him. Finding neither error nor abuse of discretion, we affirm the judgment.

In February 1995, Rameau was charged with violating the terms and conditions of his probation. ¹ The motion was based on a charge of unlawful sexual contact in violation of 17-A M.R.S.A. § 255 (Supp.1995), for which he was indicted in Cumberland County. Rameau successfully resisted the State's motion to consolidate the criminal trial with the probation revocation hearing. ²

At Rameau's criminal trial, the alleged victim of the sexual assault testified and was thoroughly cross-examined by Rameau's attorney. The jury found Rameau not guilty of the criminal charge. A different attorney represented Rameau at the subsequent hearing on the motion to revoke probation. Rameau moved that the Judge recuse himself because he had presided at Rameau's criminal trial, which was based on the same conduct, and because of a comment made at that trial. ³ The court denied the motion.

At the probation revocation hearing, the court allowed the State to present the transcript of the alleged victim's testimony from the criminal trial. The State also proffered evidence from Rameau's probation officer and a Portland police officer who had interviewed the child. Rameau then moved to admit in evidence the remainder of the trial testimony, presented the testimony of a private investigator, and also testified. The court took the matter under advisement and found that Rameau had violated the terms of his probation. The court partially revoked Rameau's probation and ordered him to serve a term of four years of the previously suspended sentence with probation to continue. This appeal followed.

Rameau contends that the Judge's failure to disqualify himself from the probation revocation proceeding was a violation of constitutional due process and Canon 3(E)(2)(a) of the Maine Code of Judicial Conduct. ⁴ Rameau argues that recusal was necessary because the Judge's participation at the criminal jury trial caused him to prejudge the probation matter. Recusal is a matter within the broad discretion of the court. Wood v. Wood, 602 A.2d 672, 674 (Me.1992) (quoting State v. Jacques, 537 A.2d 587, 591 (Me.1988)).

Rameau argues that recusal is mandated because the Judge had personal knowledge of the credibility of the victim's testimony that Rameau's counsel at the probation revocation proceeding did not have because he did not serve as Rameau's trial counsel. Rameau also contends that the Judge had a personal bias against him because at the criminal trial the Judge entertained defense counsel's questions concerning possible sentences in the event of a guilty plea; Rameau concludes that this knowledge made the Judge believe Rameau was guilty. In addition, Rameau argues that the Judge's comment to Rameau's attorney about hypnotizing the jury shows the court's bias against Rameau. Rameau also contends that the court used knowledge gained at the criminal trial and impermissibly referred to its trial notes in determining that Rameau violated the terms of his probation.

Generally, knowledge gained in a prior proceeding is not a sufficient ground to recuse a judge in a subsequent matter. The prevailing view is that only knowledge gained from an extrajudicial source supports a motion for recusal. See 28 U.S.C. § 455 (1974) (the federal law similar to Canon 3(E)(2)). ⁵ See also, United States v. Chantal, 902 F.2d 1018, 1023 (1st Cir.1990) ("the circumstances calling for disqualification must be personal in the sense that the source of bias/prejudice must arise out of extrajudicial, not judicial, proceedings."). Recently, however, the United States Supreme Court has modified that rule to some extent, holding that the extrajudicial nature of the knowledge is only one factor in determining whether, because of bias, recusal is warranted pursuant to subsections (a) and (b)(1) of section 455. Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994). "[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Id. The Court noted that, as a practical matter, the vast majority of cases will involve knowledge gained from an extrajudicial source. Id. at 550-52, 554-56, 114 S.Ct. at 1155, 1157.

Our jurisprudence is consistent. We have held that the fact that a judge presided at one trial or proceeding will not suffice to support a motion to recuse that judge from a subsequent proceeding. See Wood v. Wood, 602 A.2d 672, 674 (Me.1992) ("The possibility that a motion justice might be improperly influenced by evidence that had been admitted during a previous trial, but would not be admissible in the present case 'is a wholly inadequate ground for disqualification.' ") (quoting Town of Eliot v. Burton, 392 A.2d 56, 58 n. 1 (Me.1978)); Brendla v. Acheson, 554 A.2d 798, 799 (Me.1989) ("any bias, to be disqualifying, must stem from extrajudicial sources, not from prior evidence in a case.") (citations omitted); Barber v. Town of Fairfield, 486 A.2d 150, 152-53 (Me.1985) (presiding at former hearing not basis for recusal). In Wood, we said that a judge need not disqualify if the judge can act "with complete impartiality" and no reasonable grounds exist to question the judge's ability to act in such a manner. 602 A.2d at 674. In this case, neither the knowledge the Judge acquired from the criminal trial, nor the fact that he referred to notes he made during that trial, is sufficient to warrant a recusal from the probation proceeding. Moreover, the statement to the attorney regarding hypnotizing the jury is, at worst, a sarcastic compliment and does not display a deep-seated antagonism rendering a fair judgment impossible.

Rameau's additional contention based on due process considerations is also unavailing. There were no improprieties in the court's conduct, and hence it did not approach the egregiousness required to support a due process violation for not granting the recusal motion. See United States v. International Business Machines Corp., 475 F.Supp. 1372, 1390 (S.D.N.Y.1979), aff'd 618 F.2d 923 (2d Cir.1980) (citations omitted) (violation of due process unlikely when no statutory duty breached); see also State v. Friel, 497 A.2d 475, 477-78 (Me.1985), cert. denied 474 U.S. 1032, 106 S.Ct. 594, 88 L.Ed.2d 574 (1985); State v. Campbell, 497 A.2d 467, 473-74 (Me.1985), cert. denied 474 U.S. 1032, 106 S.Ct. 594, 88 L.Ed.2d 574 (1985).

Rameau also contends that the admission of the alleged victim's testimony from the criminal trial violated his right to confront and cross-examine witnesses against him. U.S. Const. amend. XIV; Me. Const. art. I, § 6-A. The right of a criminal defendant to confront witnesses and evidence against him is guaranteed as an element of due process and has been extended to parole and probation revocation proceedings pursuant to both the United States and Maine Constitutions. See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (probation), ⁶ Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (parole); State v. Maier, 423 A.2d 235, 238 (Me.1980) (probation). ⁷ Pursuant to these decisions, a limited liberty interest for probationers is protected by constitutional due process considerations.

The United States Supreme Court has noted that those requirements should not be interpreted in an unyielding manner. In Morrissey, the Court stated that "the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial." 408 U.S. at 489, 92 S.Ct. at 2604. In Gagnon, the Court spoke specifically to the right to confront adverse witnesses:

An additional comment is warranted with respect to the rights to present witnesses and to confront and cross-examine adverse witnesses.... While in some cases there is simply no adequate alternative to live testimony, we emphasize that we did not in Morrissey intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence.

411 U.S. at 782 n. 5, 93 S.Ct. at 1760 n. 5. M.R.Evid. 1101(b)(4) provides that the rules of evidence do not govern proceedings on probation violations, and we have held that hearsay evidence is admissible in a revocation proceeding. See Ingerson v. State, 491 A.2d 1176, 1181 (Me.1985) (Ingerson II ); State v. Caron, 334 A.2d 495, 498 (Me.1975).

The key to the admissibility of hearsay evidence is its reliability. Although we have excluded as "inherently unreliable" and without any foundation the admission of a polygraph test result corroborating a victim's testimony that she was...