July 16, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILBERT HANNAH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 93-08-1826.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 2, 2012
Before Judges Cuff and Waugh.
Defendant appeals from the denial of his motion for a new trial*fn1 based on allegedly withheld exculpatory evidence. A jury found defendant guilty of two counts of felony murder, two counts of armed robbery, and one count of possession of a handgun for an unlawful purpose. He is serving consecutive life terms with thirty-year parole disqualifiers. We affirmed defendant's conviction and sentence on direct appeal, State v. Hannah, No. A-5022-94 (App. Div. December 11, 1997); the Supreme Court denied certification, 153 N.J. 217 (1998). Defendant's first petition for post-conviction relief (PCR) was denied; we remanded for a evidentiary hearing. State v. Hannah, No. A-6424-99 (App. Div. Jan. 31), certif. denied, 174 N.J. 41 (2002). Following an evidentiary hearing, the petition was denied; we affirmed. State v. Hannah, No. A-6379-01 (App. Div. Nov. 7, 2003), certif. denied, 178 N.J. 453 (2004). Defendant filed a motion for new trial based on newly discovered evidence. The motion was denied; defendant appealed, and the matter was remanded for an evidentiary hearing to determine whether a Brady*fn2 violation occurred. State v. Hannah, No. A-3788-07 (App. Div. June 19, 2009). Following the evidentiary hearing, the judge found the State did not withhold exculpatory evidence and denied the motion. Defendant also filed a motion for recusal. The judge denied this motion and defendant appeals from both orders. We reverse the order denying defendant's motion for recusal and remand for a new evidentiary hearing.
The conviction arises from the shooting of two drugs dealers by two men in Jersey City. The jury found that defendant and William LaCue lured Luis Flores and Angel Salazar to Jersey City under the pretense that defendant and LaCue wanted to purchase a large quantity of heroin for distribution by them. When Flores and Salazar arrived in Jersey City, two men entered their car, shot them and took the heroin. When arrested, LaCue implicated defendant, who was arrested, indicted, and eventually convicted of two counts of felony murder, among other charges.
Defendant has insisted throughout these proceedings that another person, referred to variously as Maurice Thomas, Mo-T, and Big Mo-T, was the second man in the car with LaCue. As developed more completely in the evidentiary hearing conducted to address defendant's first PCR petition, defendant admitted he was in the vicinity when Flores and Salazar were shot and killed. He has consistently maintained, however, that Mo-T was the second shooter, and the State withheld evidence from him at trial that placed Mo-T in the victim's car.
Defendant filed a request in 2007 for the discovery provided to his defense attorney prior to his 1993 trial. On receipt, defendant discovered a six-page supplementary report dated June 8, 1993, prepared by Lieutenant Charles Lee Redd (Redd Report), of the Hudson County Prosecutor's Office. Redd related that a pager found at the scene of the shooting was traced to a person known as Rabb. Defendant is known as Rabb. According to the Redd Report, when an officer paged the number, Mo-T, not defendant, responded. Arguing that the Redd Report had not been provided to him or his attorney prior to his 1993 trial and insisting that this evidence established Mo-T was LaCue's companion, defendant filed a motion for a new trial.
At the conclusion of the new-trial evidentiary hearing, defendant argued the judge should recuse himself because he was the Hudson County Prosecutor from 1997-2002. During that time, this court rendered its opinion on defendant's direct appeal, defendant filed a PCR petition, and this court reversed the denial of the first PCR and remanded for an evidentiary hearing. During the time the judge served as county prosecutor, the evidentiary hearing was conducted and the petition was denied, and defendant filed a notice of appeal. When we affirmed denial of the first PCR, Judge Theemling was no longer prosecutor.
On appeal, defendant raises the following arguments:
THE PCR II JUDGE SHOULD HAVE RECUSED HIMSELF FROM DECIDING WHETHER THE HUDSON COUNTY PROSECUTOR'S OFFICE VIOLATED BRADY V.
MARYLAND, 373 U.S. 83 (1963), BECAUSE HE WAS FORMERLY THE HUDSON COUNTY PROSECUTOR.
THE STATE VIOLATED BRADY V. MARYLAND, 373 U.S. 83 (1963).
IN THE ALTERNATIVE, DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCE FOR FAILING TO USE LT. REDD'S REPORT AT TRIAL OR ON APPEAL.
A recusal determination rests with the trial court's discretion. State v. McCabe, 201 N.J. 34, 45 (2010); State v. Marshall, 148 N.J. 89, 275-76 (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); Jadlowski v. Owens-Corning Fiberglas Corp., 283 N.J. Super. 199, 221 (App. Div. 1995) ("The trial judge is in as good a position as any to evaluate a claim that an action has the appearance of impropriety."), certif. denied, 143 N.J. 326 (1996), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). On appeal, this court will assume the trial judge applies his or her "conscious exercise of good will and mature judgment to decide" a recusal motion. Magill v. Casel, 238 N.J. Super. 57, 63-64 (App. Div. 1990). Nevertheless, "judges are not free to err on the side of caution; it is improper for a court to recuse itself unless the factual bases for its disqualification are shown by the movant to be true or are already known by the court." Marshall, supra, 148 N.J. at 276; see Johnson v. Johnson, 204 N.J. 529, 551 (2010).
Judges also have a duty to "avoid actual conflicts as well as the appearance of impropriety to promote confidence in the integrity and impartiality of the Judiciary." DeNike v. Cupo, 196 N.J. 502, 507 (2008). "'Fundamental to any consideration of possible judicial disqualification is a showing of prejudice or potential bias.'" Marshall, supra, 148 N.J. at 276 (quoting State v. Flowers, 109 N.J. Super. 309, 312 (App. Div. 1970)).
This general duty is encompassed in the New Jersey Code of Judicial Conduct. Canon 2 provides, in relevant part, that a judge "should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary," and consequently "must avoid all impropriety and appearance of impropriety." Additionally, Canon 3(C)(1) states in relevant part:
A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer or has personal knowledge of disputed evidentiary facts concerning the proceeding; [or]
(b) the judge served as lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a witness concerning it[.]
Lawyers representing the government, such as prosecutors, are not automatically associated with other lawyers in that agency. Commentary to Canon 3C(1)(b). Rather, "a judge formerly employed by a governmental agency . . . should disqualify himself or herself in a proceeding if the judge's impartiality might reasonably be questioned because of such association." Ibid.
N.J.S.A. 2A:15-49 requires disqualification of a judge in specific situations, including when the judge "[h]as been attorney of record or counsel for a party to such action" pending before the judge.*fn3 Rule 1:12-1 incorporates N.J.S.A. 2A:15-49, but "goes further than the statute and requires disqualification 'when there is any other reason which might preclude a fair and unbiased hearing and judgment, or which reasonably might lead counsel or the parties to believe so.'" State v. McCann, 391 N.J. Super. 542, 550 (App. Div. 2007) (quoting Rule 1:12-1(f)). The moving party need not "prove actual prejudice on the part of the court"; rather, "the mere appearance of bias may require disqualification" so long as "the belief that the proceedings were unfair [is] objectively reasonable." Marshall, supra, 148 N.J. at 279 (citing R. 1:12-1(f)). Taken as a whole, these rules "are designed to address actual conflicts and bias as well as the appearance of impropriety." McCabe, supra, 201 N.J. at 43. Hence, the proper question on appeal is whether "a reasonable, fully informed person [would] have doubts about the judge's impartiality[.]" DeNike, supra, 196 N.J. at 517.
N.J.S.A. 2A:15-50 authorizes the challenged judge to personally decide
the motion or appoint three disinterested persons to do so.*fn4
The moving party may submit evidence or raise good faith
questions concerning recusal, and the judge may respond. Magill,
supra, 238 N.J. Super. at 64. Although generally straightforward,
"difficult problems arise in those
rare cases in which the ground argued for recusal is bias or other
incapacity to sit fairly." Ibid. Accordingly, the "challenged judge
who hears the motion should painstakingly set forth the objective and
subjective bases for the ultimate decision." Id. at 65.
In State v. McNamara, the trial judge was First Assistant Prosecutor when the indictment against defendant was returned. 212 N.J. Super. 102, 108 (App. Div. 1986), certif. denied, 108 N.J. 210 (1987). The judge denied the defendant's motion for recusal. Ibid. In affirming, this court held the Supreme Court's administrative directive governing recusal of judges who served in government positions requires that, "'[e]xcept in extraordinary circumstances, a judge should disqualify himself in a criminal matter which was pending in his office when he was the prosecutor or county public defender, whether or not he actively participated in the investigation, prosecution or defense of the case, or had actual knowledge of it . . . ha[d] the full force and effect of law.'" Id. at 108-10 (quoting Disqualification of Judges in Criminal Matters, Administrative Directive (Sept. 19, 1983), available at http://www.judiciary.state.nj.us/directive/personnel/dir_sep_19_ 83.pdf). Recusal of the county prosecutor is required because, having acted "'as the prior head of [the] office, the judge would have had the overall responsibility for the conduct of the case.'" Id. at 108 (quoting Disqualification of Judges in Criminal Matters, supra). In distinguishing between the county prosecutor and the first assistant prosecutor, this court found the directive only required mandatory recusal for the former, even though the latter position "has supervisory responsibility over all trial attorneys[.]" Id. at 109.
In contrast, the Supreme Court in State v. Harris, 181 N.J. 391, 511 (2004), held the PCR judge was not required to disqualify himself even though he was the acting county prosecutor at the time an indictment was returned against the defendant because the judge lacked "any personal recollection of the prosecution or supervision of the unrelated indictment that issued twenty-five years earlier." (Emphasis added). Additionally, "someone else's initials after his signature demonstrate[d] that he did not sign the indictment or personally prosecute the matter." Ibid. It found the, "at most, mere ministerial involvement by the 'Acting County Prosecutor'" was "not the sort of personal involvement that compels disqualification. Nor does that remote, unrelated indictment establish reason for questioning the judge's impartiality pursuant to Canon 3(c)(1)." Ibid. (Emphasis added). Additionally, the September 19, 1983 Administrative Directive did not mandate recusal where the PCR judge lacked "personal recollection of such personal involvement and the indictment support[ed] the judge's assertion that he did not sign the document; someone signed the document in his name." Ibid. Hence, "[g]iven the PCR court's marginal, if any, participation in the unrelated indictment, and its remoteness," the defendant failed to "establish that reason existed that 'might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so,' in violation of Rule 1:12-1." Ibid. Compare State v. Hill, 110 N.J. Super. 370, 374-75 (App. Div. 1970), where the trial judge, who was formerly the assistant prosecutor, was not disqualified from presiding at the criminal trial of a defendant whose file had been pending in the prosecutor's office during the judge's employment, but the judge as an assistant prosecutor had no knowledge of the matter; and, State v. Tucker, 264 N.J. Super. 549, 555 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994), which reversed the defendant's conviction because the judge, who previously served as assistant prosecutor and had presented evidence against the defendant to a grand jury, should have recused himself in a subsequent yet unrelated trial against the same defendant.
Here, the trial occurred in September and October 1994. Defendant filed a notice of appeal in 1995; the Attorney General assumed responsibility for the direct appeal. Hannah, A-5022-94, supra. Judge Theemling was appointed County Prosecutor in 1997. Defendant filed his first PCR in 1998, which was denied by order dated June 28, 2000. As the county prosecutor, Judge Theemling was the attorney of record. The Attorney General assumed responsibility for the appeal from the denial of the first PCR. This court ordered an evidentiary hearing, Hannah, A-6424-99, supra, which was conducted in April 2002. An assistant prosecutor represented the State at this hearing; Judge Theemling was the attorney of record. The Attorney General assumed responsibility for the appeal from the second denial of defendant's first PCR. Hannah, A-6379-01, supra. By that time, Judge Theemling was no longer the Hudson County Prosecutor.
The alleged Brady violation that is the focus of the new trial motion occurred at least four years before Judge Theemling was appointed the Hudson County Prosecutor. There is nothing in the record to support a finding that the judge had any direct involvement with this matter, specifically the first PCR and the evidentiary hearing for the first PCR, as the Hudson County Prosecutor. On the other hand, Judge Theemling was the attorney of record and long-standing guidelines and case law direct that a judge should disqualify himself in a criminal matter which was pending in his office when he was the prosecutor. Active participation or actual knowledge of the matter are irrelevant because the county prosecutor appears as the attorney of record. Disqualification is required to dispel any hint of impartiality. To be sure, Judge Theemling was not the county prosecutor when the grand jury returned the indictment or the matter was tried. Yet, Judge Theemling was not confronted with an unrelated indictment, as in Harris. Rather, the matter of State v. Hannah has been an active matter in the Hudson County Prosecutor's Office on a virtually continuous basis since 1993, and certainly during 1997-2002, when the judge appeared as attorney of record in opposition to defendant's first PCR.
We, therefore, hold that the judge should have recused himself from this evidentiary hearing. We reverse and remand for an evidentiary hearing before a different judge.