Weber v. State

• Citation: 547 A.2d 948
• Parties: Paul E. WEBER, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted:
• Decision Date: 29 March 1988
• Court: United States State Supreme Court of Delaware

Page 948

547 A.2d 948

Paul E. WEBER, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Submitted: March 29, 1988.

Decided: Aug. 23, 1988.

Rehearing Denied Sept. 16, 1988.

L. Vincent Ramunno, Wilmington, on behalf of appellant.

Richard E. Fairbanks, Jr. and Loren C. Meyers, Deputy Attys. Gen., Wilmington, on behalf of appellee.

Before CHRISTIE, C.J., and HORSEY, MOORE, WALSH and HOLLAND, JJ. (constituting the Court en banc)

HOLLAND, Justice:

Following a jury trial in the Superior Court, the defendant-appellant, Paul E. Weber ("Weber"), was convicted of first degree kidnapping, two counts of aggravated intimidation, intimidation, second degree burglary, second degree assault, menacing, third degree assault, and resisting arrest. The trial judge dismissed a charge of carrying a concealed deadly weapon during the commission of a felony. The jury found Weber not guilty of two counts of second degree kidnapping. Weber was sentenced to a term of life imprisonment, with the possibility of parole, for the first degree kidnapping conviction and to a collective term of seventeen and one-half years imprisonment for the other convictions. Weber now appeals those convictions.

Weber has raised five issues in this appeal. He contends through his attorney that: (1) the prosecutor's remarks during closing argument deprived him of a fair trial; (2) the trial judge was disqualified and improperly refused to recuse himself; (3) references to prior criminal acts were improperly admitted to evidence; (4) the trial judge erred in ruling on matters raised about certain jurors during the trial; and (5) there was insufficient evidence to support his convictions for kidnapping and intimidation.

We have concluded that there was insufficient evidence to support Weber's conviction for kidnapping. Therefore, that conviction is reversed. We have also concluded that references to prior criminal acts by Weber were admitted into evidence improperly in the absence of a cautionary instruction. Consequently, Weber's convictions for intimidation and aggravated intimidation are reversed. We find that there is no merit to any of Weber's other contentions. Therefore, the remaining judgments of conviction are affirmed.

Facts

The victim, Elizabeth Long ("Long"), began dating Weber in October 1984. On December 6, 1984, Long told Weber that it was her desire to end their relationship. The next day, December 7, Weber encountered Long and two of her friends, Matthew Plummer ("Plummer") and Jacqueline Klemmer ("Klemmer"). Weber pointed a pistol ¹ at Plummer. When Long attempted to intercede, Weber hit her in the face with the pistol. ² Weber's action knocked out one of Long's teeth and substantially damaged several other teeth. Weber then fled. Long and her friends called the police. Weber was subsequently charged with assault for hitting Long with the pistol.

Thereafter, according to Long, Weber tried to persuade her to withdraw the assault charge against him. Long testified that Weber telephoned her frequently. During one of these telephone calls, Weber is said to have told Long that: "I killed once. I'll kill again." Long stated that Weber offered to pay her to drop the charges. Long, and her friend, Theresa Skidmore ("Skidmore"), also testified that Weber stated that he had his father pay off the judge the last time.

Apparently, Weber also followed Long on several occasions. In one incident, Weber appeared at Long's father's house as she was walking from her car. According to Long, Weber stated that he wanted to talk to her, and, holding his hand near his pants as if he had a weapon, Weber said that he should shoot her. Long ran inside her father's house and called the police. Long filed a complaint against Weber in early February 1985. Warrants were issued charging Weber with aggravated intimidation and intimidation as a result of his threats to Long by telephone and in person.

Following the issuance of the warrants charging Weber with intimidation, Weber assaulted Long again at her home. On the morning of February 13, 1985, Long was at home with Skidmore, another resident of her house, and Long's minor son. Around 10:00 a.m., Weber entered the kitchen where Long, her son and Skidmore were talking. Both Long and Skidmore testified that they saw a handgun protruding from the waistband of Weber's pants. Weber walked towards Long, saying "I'm dead and so are you," or words to that effect. Weber pushed Long against the kitchen wall and told Skidmore to go into the other room. Long's immediate response was to shout for Skidmore to take her son out of the house. Skidmore left the house with Long's son and sought safety two houses away, where she called the police.

In the meantime, Weber and Long began fighting. The fight proceeded throughout the first floor of Long's house. While the fight was in progress, the handgun fell out of Weber's pants. Long then realized that it was only a BB pistol. As the fight continued, Long attempted to reach the door of the house several times. Each time, Weber grabbed her by the hair or the neck. The fight stopped when Weber became sick and regurgitated. At this point, Long went outside to look for help. Long testified that when she saw no one outside, she went back into the house to keep Weber from leaving and "to get it over with."

The fight resumed immediately when Long re-entered her home. Long succeeded in defending herself against Weber. Long testified that they fought until Weber became tired and "needed a break". As Weber rested, Long left the house again, despite Weber's efforts to stop her. This time, Long saw several policemen outside of her home and went to them for help. Weber remained in the house for another five hours, before he was forced to surrender by the use of tear gas.

No Basis for Trial Judge's Recusal

Weber's first argument on appeal is that the trial judge was disqualified in this case because of his experience in presiding at a prior trial. In 1981, Weber was tried for and convicted of second degree murder and a related weapon's offense. On appeal, this Court reversed those convictions and remanded the case for a new trial. Weber v. State, Del.Supr., 457 A.2d 674 (1983). At his retrial, conducted before a different judge, Weber was acquitted.

The same judge who had presided over the first trial which resulted in Weber's conviction of second degree murder was assigned to preside at his trial in this matter. Weber filed a pretrial motion for disqualification based upon the designated judge's involvement in Weber's former case. Weber's motion did not allege that the judge was personally biased against him. The motion stated that Weber would feel "more comfortable" if another judge presided. The Superior Court judge declined to recuse himself. In so ruling, the judge stated that he barely remembered the earlier case and that he had no bias for or against Weber.

It has been observed that Canon 3 C concerning the disqualification of a judge to sit in a case is the most litigated section of the Code of Judicial Conduct. ³ However, we have found no authority to support the proposition advanced by Weber. There is no general rule that a judge is disqualified per se because of an adverse decision in a former case involving entirely different and unrelated criminal charges against the same party. State v. Cabiness, 273 S.C. 56, 254 S.E.2d 291, 292 (S.C.1979) (per curiam); Annotation, Disqualification of Judge for Having Decided Different Case Against Litigant, 21 A.L.R.3d 1369, 1375-77 (1968).

Disqualification is required only when the impartiality of the judge might reasonably be questioned, including instances in which the judge "has a personal bias or prejudice concerning a party...." The Delaware Judges' Code of Judicial Conduct provides, in part:

Disqualification.

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:

(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

....

Del. Judges' Code of Judicial Conduct Canon 3C(1) (1987).

This Court has held that the bias envisioned by Canon 3C(1) is not created merely because the trial judge has learned facts or made adverse rulings during the course of a trial. Steigler v. State, Del.Supr., 277 A.2d 662, 668 (1971). Other courts have held a judge is not precluded per se from further participation in the same case even if on appeal it has been remanded for a new trial or resentencing. E.g., United States v. Hollis, 718 F.2d 277, 280 (8th Cir.1983) (resentencing), cert. denied, 465 U.S. 1036, 104 S.Ct. 1309, 79 L.Ed.2d 707 (1984); United States v. Baylin, 696 F.2d 1030, 1042-43 (3d Cir.1982) (resentencing); McFadden v. State, 402 A.2d 1310, 1315 (Md.Ct.Spec.App.1979) (retrial); Commonwealth v. Conner, 384 A.2d 1192, 1193 (Pa.1978) (per curiam) (resentencing). See Nerison v. Solem, 715 F.2d 415, 416-17 (8th Cir.1983) (trial before judge who had accepted guilty plea that had been subsequently vacated), cert. denied, 464 U.S. 1072, 104 S.Ct. 983, 79 L.Ed.2d 220 (1984); State v. Walker, 166 A.2d 567, 573 (N.J.1960) (trial before judge who had accepted non vult plea and denied writ of habeas corpus).

We conclude, a fortiori, that a judge's participation in prior proceedings involving a defendant does not per se disqualify his participation in subsequent, unrelated proceedings. See United States v. Gaertner, 519 F.Supp. 585, 588 (E.D.Wis.1981). Therefore, we have examined the record to determine if there was any reasonable basis to question the impartiality of the trial judge. In this case, the judge stated that he had no preconceived notions as a result of Weber's prior trial. In seeking the judge's disqualification, Weber did not point to any incident in the earlier proceeding to support a claim of...