State v. Lincoln

State v. Lincoln  (96-078); 165 Vt 570; 680 A.2d 110

[Opinion Filed 15-May-1996]


                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 96-078

                             MARCH TERM, 1996


State of Vermont        }                    APPEALED FROM:
                        }
                        }                    District Court of Vermont
       v.               }                    Unit No. 1, Windham Circuit
                        }
Christopher Lincoln     }                    DOCKET NO. 347-3-95Wmcr


       In the above-entitled cause, the Clerk will enter:

       We revisit the question first considered in State v. Putnam, 7 Vt.
  L.W. 6 (1996), whether Judge Theresa DiMauro should be disqualified from
  cases involving officers from the state police barracks at Rockingham,
  where her husband, Trooper DiMauro, works.  Defendant sought Judge
  DiMauro's disqualification on the grounds that Sergeant L'Esperance, the
  key state witness against defendant, is Trooper DiMauro's supervisor at the
  Rockingham Barracks.  Judge DiMauro referred the disqualification motion to
  the administrative judge, who denied the motion. We reverse.

       In January 1995, Sergeant L'Esperance stopped for speeding a car in
  which defendant was travelling as a passenger.  After recognizing the
  driver as a possible burglary suspect, and detecting the odor of marijuana,
  L'Esperance told the driver that he intended to apply for a warrant to
  search the vehicle.  L'Esperance then sought and received the driver's
  consent to search the vehicle.  The search revealed a small blotter wrapped
  in plastic in a wallet belonging to defendant.  The blotter tested positive
  for LSD.  Defendant was later charged with knowing and unlawful possession
  of LSD, in violation of 18 V.S.A. § 4232(a)(1).

       Judge DiMauro's husband, Vincent DiMauro, is a uniformed state police
  officer assigned to the Rockingham Barracks.  Sergeant L'Esperance is one
  of the patrol commanders for the Rockingham Barracks, and supervises
  Trooper DiMauro.  As one of his duties, Sergeant L'Esperance helps prepare
  written performance evaluations of Trooper DiMauro.  Trooper DiMauro
  himself has no connection to this case, nor is there any evidence that
  Judge DiMauro has any relationship with the officers involved in the case.

       In Putnam, we noted that the defendant presented a "sparse factual
  record" in support of the motion to disqualify, and refused to adopt a per
  se rule requiring Judge DiMauro's disqualification in every case involving
  officers from the Rockingham Barracks.  Id. at 6, 7. We emphasized that
  none of the officers involved in that case had "a supervisory relationship
  over [Trooper DiMauro]", id. at 6, and that we knew little about the likely
  interaction between

 

  between those officers and Trooper DiMauro.  In this case, however, we need
  not "speculate on the inner workings" of the Rockingham Barracks, id. at 8,
  because we know not only that Trooper DiMauro and Sergeant L'Esperance work
  together, but also that Sergeant L'Esperance supervises Trooper DiMauro.

       Judges subject to disqualification motions are accorded a "presumption
  of honesty and integrity," and we give discretion to the administrative
  judge for the trial courts in deciding disqualification issues.  Id. at 7;
  Ball v. Melsur Corp., 161 Vt. 35, 39-40, 633 A.2d 705, 709-10 (1993).  We
  review the administrative judge's decision for abuse of discretion, and
  will reverse only "`if the record reveals no reasonable basis for the
  decision.'"  Putnam, 7 Vt. L.W. at 8 (quoting Ball, 161 Vt. at 40, 633 A.2d
  at 710).

       Despite the deference we accord the administrative judge, in this case
  we conclude that he abused his discretion in denying the disqualification
  motion.  The existence of a supervisory relationship between Trooper
  DiMauro and the witness in this case is enough that Judge DiMauro's
  "impartiality might reasonably be questioned."  Code of Judicial Conduct,
  A.O. 10, Canon 3E(1).  Sergeant L'Esperance evaluates Trooper DiMauro's
  work performance, and thus has a substantial influence over Trooper
  DiMauro's professional success.  Based on the facts in the record, any
  evidentiary issues raised by defendant would turn on the credibility of
  Sergent L'Esperance.  A reasonable person who "know[s] and understand[s]
  all the relevant facts" would question the impartiality of a judge under
  these circumstances.  Putnam, 7 Vt. L.W. at 7; see Buchanan v. Buchanan,
  587 So. 2d 892, 896-97 (Miss. 1991) (if judge has close relationship with
  son-in-law, and son-in-law has been under substantial influence and
  tutelage of witnesses at custody hearing, and those witnesses have
  substantial role to play in son-in-law's professional future, court cannot
  say as matter of law that objective observer would not reasonably question
  judge's impartiality).

       Reversed.

------------------------------------------------------------------------------
                                 Dissenting


       GIBSON, J., dissenting.  Because I do not believe that defendant has
  made "a clear and affirmative showing of bias or prejudice," which we held
  to be required for a finding of abuse of discretion in Ball v. Melsur
  Corp., 161 Vt. 35, 40, 633 A.2d 705, 710 (1993), I respectfully dissent.

       In Ball, we acknowledged that the proper standard for evaluating a
  recusal motion is whether the trial judge's "`impartiality might reasonably
  be questioned.'"  Id. at 39, 633 A.2d  at 709 (quoting Code of Judicial
  Conduct, A.O. 10, Canon 3C(1) (now codified at A.O. 10, Canon 3E(1)).  But
  we also recognized that recent procedural reforms vested authority for
  making this initial determination in the administrative judge, to exercise
  within his or her sound discretion.  Id. at 40, 633 A.2d  at 710; see
  V.R.C.P. 40(e) & V.R.Cr.P. 50(d).  Consequently, we held that "[o]n review
  this Court will disturb such a ruling only if there has been an abuse of
  discretion, that is, if the record reveals no reasonable basis for the
  decision."  Ball, 161 Vt. at 40, 633 A.2d  at 710.  We also concluded that,
  as a prerequisite to our finding an abuse of discretion on the part of the
  administrative judge, "[a] party seeking a trial judge's recusal must make
  a clear and affirmative showing of bias or prejudice."  Id.

       In the instant matter, the administrative judge found, based on a
  stipulation of facts offered by the parties, that Sergeant L'Esperance
  serves as one of three patrol commanders who supervise the troopers,
  including Trooper DiMauro, assigned to the Rockingham barracks.  The
  administrative judge was unable to conclude from this lone stipulated fact
  that Judge DiMauro's impartiality might reasonably be questioned, nor was
  the administrative judge inclined to supply the "conjecture and
  speculation" necessary to support recusal in this matter.  This Court is
  not authorized to consider the evidence de novo, but rather accords
  deference to the administrative

 

  judge's determination.  Given our deferential standard of review, and the
  presumption of honesty and integrity that we accord to our trial judges,
  see id. at 39-40, 633 A.2d  at 709-10, I am unable to conclude that
  defendant has "ma[d]e a clear and affirmative showing of bias or prejudice"
  that warrants Judge DiMauro's recusal.  Accordingly, I dissent.


                   BY THE COURT:


                                     ________________________________________
                                     Frederic W. Allen, Chief Justice


                                     ________________________________________
                                     John A. Dooley, Associate Justice


                                      ________________________________________
                                      James L. Morse, Associate Justice


                                      ________________________________________
                                      Denise R. Johnson, Associate Justice



                   Dissenting:                           
                                      _______________________________________ 
                                      Ernest W. Gibson III, Associate Justice