State v. Whittey

• Decision Date: 02 May 2003
• Parties: THE STATE OF NEW HAMPSHIRE v. JOSEPH WHITTEY
• Court: New Hampshire Supreme Court

149 N.H. 463

821 A.2d 1086

THE STATE OF NEW HAMPSHIRE v. JOSEPH WHITTEY

No 2001-427.

Supreme Court of New Hampshire.

Argued: February 13, 2003.

Opinion Issued: May 2, 2003.

Stephen J. Judge, acting attorney general (Michael A. Delaney, senior assistant attorney general, on the brief and orally), for the State.

David M. Rothstein, deputy chief appellate defender, of Concord, by brief and orally, for the defendant.

DALIANIS, J.

The defendant, Joseph Whittey, was convicted following a jury trial of first-degree murder in the course of rape. See RSA 630:1-a (1974) (amended 1986 & 1990). On appeal, he argues that the Superior Court (McGuire, J.) erred by: 1) failing to recuse herself from the case; 2) denying the defendant's motion to dismiss; and 3) finding that the results of polymerase chain reaction based short tandem repeat DNA testing were admissible scientific evidence. We affirm.

The relevant facts are as follows. On September 7, 1981, Yvonne Fine was found dead in her home. Following an autopsy, the examiner concluded that Fine's death was caused by strangulation, and that she had bruises on her body that could have been caused by sexual assault and penetration. Shortly thereafter, the defendant was interviewed by the Concord Police Department and denied having murdered Fine.

In 1993, a serologist confirmed that there was still a usable semen sample in the victim's pajama pants and stored them in a freezer. In 1999, the State sent the pajama pants, a slipper, and the defendant's underwear, as well as fingernail scrapings, to Cellmark Diagnostics (Cellmark) for DNA analysis. Cellmark used a form of DNA testing known as polymerase chain reaction (PCR) based short tandem repeat (STR) DNA profiling and concluded that DNA in the semen sample on the pajama pants matched the defendant's DNA profile. The examiner also concluded that the DNA in a semen stain on the slipper matched the defendant's DNA profile.

Prior to trial, the defendant moved to disqualify the trial judge from the case because she was formerly employed as a prosecutor with the attorney general's office during the investigation of Fine's murder. The trial judge denied the motion. In addition, the defendant unsuccessfully moved to dismiss the indictment charging him with committing murder in the course of rape on the ground that the legislature repealed RSA chapter 632, which defined rape, in 1975. Consequently, he asserted he could not be indicted for the crime of first-degree murder while committing rape because rape did not exist at the time of Fine's murder in 1981.

Finally, the defendant moved to exclude the use of DNA evidence at trial because the PCR-based STR analysis was not admissible under the standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Following a four-day evidentiary hearing at which the trial court heard detailed expert testimony and received exhibits, the court concluded that PCR-based STR DNA testing was scientifically reliable and, therefore, admissible for purposes of the Frye standard. Following trial, the jury convicted the defendant of first-degree murder in the course of rape. This appeal followed.

I. Motion to Recuse

The defendant first argues that the trial judge erred by failing to recuse herself from the case. He argues that the judge's former employment with the attorney general's office from 1985-1989, which coincided with the investigation of this case, but preceded the defendant's arrest by over ten years, calls into question her impartiality. While acknowledging that the judge did not have any direct involvement in this case, the defendant contends that the trial judge's involvement with the attorney general's office created an appearance of impropriety.

"The Code of Judicial Conduct requires disqualification of a judge in a proceeding in which the judge's impartiality might reasonably be questioned and to avoid even the appearance of impropriety." State v. Bader, 148 N.H. 265, 268 (2002), petition for cert. filed, 71 U.S.L.W. 3624 (U.S. January 15, 2003) (No. 02-1392); see SUP. CT. R. 38, Canon 3E(1) (formerly Canon 3C(1)).

Whether an appearance of impropriety exists is determined under an objective standard, i.e., would a reasonable person, not the judge herself, question the impartiality of the court. The test for the appearance of partiality is an objective one, that is, whether an objective, disinterested observer, fully informed of the facts, would entertain significant doubt that justice would be done in the case.

Blevens v. Town of Bow, 146 N.H. 67, 69 (2001) (quotation omitted). Pursuant to Canon 3E(1)(b) of the Code of Judicial Conduct, a judge's impartiality may reasonably be questioned in an instance where she served as lawyer in the matter in controversy, or a lawyer with whom she previously practiced law served during such association as a lawyer concerning the matter. SUP. CT. R. 38, Canon 3E(1)(b). The commentary accompanying Canon 3E(1)(b) provides that "[a] lawyer in a government agency does not ordinarily have an association with other lawyers employed by that agency within the meaning of Section 3E(1)(b); a judge formerly employed by a government agency, however, should disqualify himself or herself in a proceeding if the judge's impartiality might reasonably be questioned because of such association."

The trial judge requested that the State review all of its files relating to the Fine murder to determine whether she had any contact with the investigation. There is no question in this case that the trial judge did not serve as a lawyer in the matter in question as described under Canon 3E(1)(b). The only evidence that established any involvement on the part of the trial judge was a memorandum dated March 13, 1986, which stated that the judge received a telephone call from a defense attorney who requested that law enforcement not communicate with his client, a potential witness in the defendant's case, without his approval. Such innocuous and isolated contact does not form the basis upon which a reasonable person would question the impartiality of the judge in this instance. As the trial judge explained in her order, her action amounted to nothing more than a perfunctory act in her former capacity as a prosecutor and did not amount to participation in the preparation and investigation of the case sufficient to require disqualification. Cf. Gamez v. State, 665 S.W.2d 124, 127-28 (Tex. Ct. App. 1983)

(trial judge was not disqualified from hearing case because of perfunctory act, as former assistant district attorney, of placing signature stamp on papers filed at defendant's arraignment on pending charges).

The only other reason asserted for seeking disqualification of the trial judge is that she was previously employed with the attorney general's office. The majority rule, however, is that "judges are not disqualified solely on the basis that they were formerly employed by the prosecutor's office." People v. Julien, 47 P.3d 1194, 1197-98 (Colo. 2002). In Julien, the Colorado Supreme Court rejected the defendant's claim that a trial judge was disqualified because he formerly worked for the district attorney's office that prosecuted the case. See id. at 1200. The court explained:

Where the judge did not actually participate in the investigation, preparation, or presentation of the case against the person who later appears before him as a defendant, the mere fact that he happened to be employed by the office that did prosecute the defendant has generally been held not to provide a legally sufficient ground for judicial disqualification.

Id. at 1198 (quotation and brackets omitted). In construing Canon 3(C)(1) of the Colorado Code of Judicial Conduct, which is substantially similar to New Hampshire's Canon 3E(1), the court noted that a judge's impartiality cannot be reasonably questioned if the only basis for seeking disqualification is the judge's former employment with the prosecutor's office. Id.

The trial judge did not begin working for the attorney general's office until 1985, approximately four years after Fine was murdered, and left that employment more than a decade before the defendant was indicted and prosecuted. There is nothing in the record to indicate that she had any direct involvement in the defendant's case by participating in the investigation or preparation of the case, or that she acquired any personal knowledge about the evidence in the case. Indeed, the judge stated in her order that she had no recollection of the investigation in this case. Moreover, the trial judge was not a supervising attorney at the attorney general's office and, therefore, was not responsible for the work of the prosecutors who were investigating the case. Cf. id. at 1198 (trial judge must disqualify himself or herself if judge had supervisory role over attorneys prosecuting the case).

Thus, we hold that the trial judge was not required to recuse herself from this case and uphold the court's decision.

II. Motion to Dismiss

The defendant next argues that the trial court erred by failing to dismiss the indictment charging him with first-degree murder in the course of rape. The indictment in this case charged, in part, that the defendant "knowingly caused the death of Yvonne Fine, age 81, before, after, or while attempting to commit rape." The defendant contends that this charge should have been dismissed because there was no statutory definition for rape in 1981.

As in all cases involving statutory interpretation, the starting point is the language of the statute. State v. Harnum, 142 N.H. 195, 197 (1997). We construe each statute as a whole, and if the statute's language is clear and unambiguous, we do not look beyond the language of the statute to discern legislative intent. Id. If a statute is ambiguous, however, we consider legislative history to aid our analysis. See Appeal of Manchester Transit Auth., 146 N.H. 454, 458 (2001). "Our goal is to apply...