In re Miller
Annotate this Case
In re Miller (96-586); 168 Vt. 585; 718 A.2d 422
[Opinion Filed 11-Jun-1998]
[Motion for Reconsideration Denied 26-Jun-1998]
ENTRY ORDER
SUPREME COURT DOCKET NO. 96-586
FEBRUARY TERM, 1998
In re Timothy P. Miller } APPEALED FROM:
}
}
} Chittenden Superior Court
}
}
} DOCKET NO. S862-89 CnC
In the above-entitled cause, the Clerk will enter:
Following an adverse decision on his appeal, petitioner moves to
disqualify the five justices that decided his case and to vacate the
decision. We deny the motion as untimely.
On March 23, 1993, a jury found defendant guilty of second-degree
murder. Subsequently, defendant moved for post-conviction relief due to
ineffective assistance of counsel. The superior court denied the petition,
and this Court affirmed by decision issued March 5, 1998. On March 19,
1998, petitioner moved to disqualify all five justices from further
participation in this case and to vacate the March 5 decision. Defense
counsel argues that, following the March 5 decision, petitioner informed
him that the Attorney General's Office has represented the State in this
case since 1983. Upon further research, defense counsel discovered that
Chief Justice Amestoy represented the State as Attorney General on appeal
from the denial of the motion for a new trial, see State v. Miller, 151 Vt.
337 (1989), and Justices Johnson and Skoglund were Assistant Attorneys
General during the time that petitioner's case was prosecuted by that
office. He argues that, on that basis, all three justices should be
disqualified and that Justices Dooley and Morse should be disqualified
because, having participated with the other three justices, they have been
tainted.
Petitioner brings this motion under V.R.A.P. 31(e)(1), which provides
that a motion for disqualification of a justice shall be filed at or before
the time to file the briefs. The rule further provides that the motion may
be filed after the brief if (1) the motion is based upon grounds not known
before filing the brief, and (2) the motion is filed soon after the grounds
for disqualification are known. V.R.A.P. 31(e)(1). Defense counsel claims
he did not know that the Office of the Attorney General prosecuted
petitioner's criminal case until petitioner so informed him after the March
5 decision by this Court. We do not reach the merits of petitioner's
V.R.A.P. 31(e)(1) claim (FN1) because we conclude that this is an untimely
post-judgment motion to disqualify the judges.
The overwhelming weight of authority concludes that a motion to
disqualify a judge should not be entertained where the litigant knew of the
grounds for disqualification but waits
until after receiving an adverse decision before filing the motion. See,
e.g., E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1295 (9th
Cir. 1992) (holding motion for disqualification of trial judge filed with
motion for new trial was untimely where litigant knew when judge was
assigned case that judge had been partner in firm representing opposing
party); Katzman v. Victoria's Secret Catalogue, 939 F. Supp. 274, 278
(S.D.N.Y. 1996) (denying post-judgment motion for disqualification as
simply attempt to get "second bite at the apple"); Kemp v. City of Grand
Forks, 523 N.W.2d 406, 408 (N.D. 1994) (rules of judicial disqualification
are not tactical devices to be used after the judge has ruled against the
litigant); Myers v. Garson, 614 N.E.2d 742, 745 (Ohio 1993) (not persuaded
that decision of appeals court was tainted where appellant raised no
objection to judge until after receiving adverse decision).
We agree that, generally, a motion for disqualification filed after
judgment should be denied absent good cause for the tardiness. To hold
otherwise would encourage litigants to delay in filing a motion for
disqualification until the merits have been decided, and if the decision is
unfavorable, then move for disqualification in an attempt to obtain a
favorable decision. See E. & J. Gallo Winery, 967 F.2d at 1295 (allowing
motions to disqualify judge after judgment would encourage parties to wait
for a decision, and then if necessary move for disqualification "to get a
second bite at the apple"); Apple v. Jewish Hospital and Medical Center,
829 F.2d 326, 334 (2d Cir. 1987) ("movant may not hold back and wait,
hedging its bets against eventual outcome"). Imposing this requirement of
timeliness also discourages judge shopping and prevents waste of judicial
resources. See Apple, 829 F.2d at 334; In re Anwiler, 958 F.2d 925, 930
(9th Cir. 1992).
The issue in this case is whether the motion to disqualify is untimely
where the litigant did not know the basis for disqualification until after
this Court's decision issued, but that information was generally available
prior to filing the brief. Most courts have denied motions to disqualify
filed after judgment where the litigant knew or should have known the basis
for disqualification in time to file a timely motion. See, e.g., United
States v. Bauer, 19 F.3d 409, 414 (8th Cir. 1994) (rejecting defendant's
argument that he had good cause for filing untimely motion to disqualify
sentencing judge in that he had out-of-state counsel who did not know that
judge had previously served as United States Attorney while defendant had
been investigated); Harris v. State, 414 S.E.2d 919, 924 (Ga. Ct. App.
1992) (motion to disqualify was untimely where litigant had access to
information establishing that trial judge had previously prosecuted him
while serving as district attorney prior to trial, but failed to move for
disqualification until filing motion for new trial); Kemp, 523 N.W.2d at
408 (motion to disqualify trial judge first made on appeal was untimely
where trial judge's prior employment should have been known to litigant
when case was assigned to trial judge); Myers, 614 N.E.2d at 745 (appellant
could have contacted appellate court after waiving oral argument to
discover judge was on panel, rather than waiting for adverse decision
before moving for judge's disqualification); Sherman v. State, 905 P.2d 355, 378 n.15 (Wash. 1995) (party must use due diligence in discovering
possible grounds for recusal and then act promptly in seeking recusal).
Requiring litigants to use due diligence to discover grounds for
judicial disqualification prior to submitting the case to the Court serves
the important purposes of (1) preventing motions to disqualify from being
used as tactical devices, cf. Code of Judicial Conduct, A.O. 10, Preamble ยง
4 ("purpose of the Code would be subverted if the Code were invoked by
lawyers for mere tactical advantage"), and (2) preventing waste of judicial
resources. The rules of disqualification "are designed to maintain public
confidence in the impartiality of the judiciary and prevent the appearance
of impropriety, not to provide parties with a tactical device to be used
only after a judge has ruled against them." Kemp, 523 N.W.2d at 408.
Based on the weight of authority and the policies underlying those
decisions, we hold that a motion to
disqualify a judge is untimely if filed after the decision is rendered
unless the litigant shows good cause why the basis for the motion could not
have been discovered sooner. See United States v. Brinkworth, 68 F.3d 633,
639 (2d Cir. 1995) ("crux" of timeliness test is "whether defendant had
good cause for delay"); United States v. Studley, 783 F.2d 934, 939 (9th
Cir. 1986) (motion for recusal filed five weeks after trial is
presumptively untimely absent showing of good cause).
Here, petitioner asserts that the Chief Justice was Attorney General
when the Office of Attorney General represented the State in petitioner's
appeal from denial of his motion for a new trial, and that Justices Johnson
and Skoglund had worked at the Office of the Attorney General during part
of the time that Office represented the State in petitioner's appellate
claims. All of this information was available to petitioner when he filed
his brief. He has failed to show good cause for failing to file this
motion in a timely manner; thus, the motion to disqualify is denied as
untimely. It would be unfair to allow a party to wait to see if there is a
favorable outcome, and if not, then move for disqualification based on
information available before the decision issued. See Langle v. Kurkul,
No. 82-254 (Vt. Feb. 23, 1986) (mem.).
Because the motion to disqualify Chief Justice Amestoy and Justices
Johnson and Skoglund is untimely, we need not address petitioner's claim
that Justices Dooley and Morse should be disqualified for having sat on a
panel with three disqualified justices. Nonetheless, we note that we have
found no authority to support a motion to disqualify a panel of justices
for participating in a decision with a justice who is subsequently
disqualified. Even where a justice is disqualified on the basis of a
personal pecuniary interest in the outcome of the case, rising to the level
of a due process violation, recusal of the entire panel has not been
required. See Johnson v. Sturdivant, 758 S.W.2d 415, 416 (Ark. 1988)
(relying on Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986) to conclude
that state supreme court panel was not required to recuse itself for
participating in a decision with a justice subsequently disqualified).
The motion to disqualify the undersigned justices and to vacate our
March 5, 1998 decision is denied.
BY THE COURT:
_______________________________________
Jeffrey L. Amestoy, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
James L. Morse, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
----------------------------------------------------------------------------
Footnotes
FN1. A violation of V.R.A.P. 31(e)(1) may not be sufficient to deny
the motion for disqualification. See Ball v. Melsur Corp., 161 Vt. 35, 41
(1993) (violation of V.R.C.P. 40(e)(1) -- timeliness requirement to
disqualify trial judge -- is not reason to deny motion; rather, attorney
sanctions are prescribed).
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In re Miller (96-586); 168 Vt. 583; 718 A.2d 419
[Opinion Filed 5-Mar-1998]
[Motion for Reargument Denied 11-Jun-1998]
[Motion for Reconsideration Denied 26-Jun-1998]
ENTRY ORDER
SUPREME COURT DOCKET NO. 96-586
FEBRUARY TERM, 1998
In re Timothy P. Miller } APPEALED FROM:
}
}
} Chittenden Superior Court
}
}
} DOCKET NO. S862-89 CnC
In the above-entitled cause, the Clerk will enter:
Defendant Timothy P. Miller appeals a superior court order finding
insufficient evidence to grant his post-conviction relief petition for
release or retrial due to ineffective assistance of counsel. Defendant
alleges that the trial court erred when it applied an incorrect standard of
attorney competence, held that a tactical decision by trial counsel was
reasonable, and applied an incorrect standard of prejudice. We affirm.
In April of 1982, the body of Timothy O'Neal was found in the Winooski
River. The State charged defendant and Ricky Sorrell with murder. The
cases were separated for trial. Sorrell was tried first and acquitted. On
March 23, 1993, a jury found defendant guilty of second-degree murder.
During defendant's trial, the State called Don Tobler as a witness.
Six months after the body was found, Tobler made a statement to police that
he had seen the victim, defendant, and Sorrell walking toward the river on
the night of the murder. However, when deposed by defendant's counsel,
Tobler stated that he could not identify the three men he saw that night.
Consequently, the State did not call Tobler as a witness during the Sorrell
trial. After defendant's trial began, however, Tobler told police that he
actually could identify defendant. He said that he had changed his earlier
story because he had been threatened by having his car windshield smashed
and a note left on it that read "you're next." He testified for the State
at defendant's trial, although when asked to identify defendant in the
courtroom, he was unable to do so.
Defendant's counsel made two strategic decisions regarding Tobler's
testimony. First, counsel did not file a motion in limine to preclude
Tobler from testifying to the threat as the explanation for why he changed
his position. Second, counsel chose not to cross-examine him, in part
because they feared the State would get into the threat on redirect. On
appeal, defendant contends that these two omissions constitute ineffective
assistance of counsel, and that the trial court applied an incorrect
standard of attorney competence in concluding otherwise. We disagree and
affirm.
Under both the United States and Vermont Constitutions, a defendant
has the right to reasonably effective assistance of counsel. See
Strickland v. Washington, 466 U.S. 668, 687-88 (1984); In re Wilkinson, 165
Vt. 183, 184, 678 A.2d 1257, 1258 (1996) (citing In re Trombly, 160 Vt.
215, 217, 627 A.2d 855, 856 (1993)). To challenge a criminal conviction
based on ineffective assistance of counsel, defendant must show by a
preponderance of the evidence that
(1) defense counsel's performance fell below the prevailing standard of
competency, and (2) that this performance prejudiced his defense. See
Trombly, 160 Vt. at 217-18, 627 A.2d at 856; State v. Bristol, 159 Vt. 334,
337, 618 A.2d 1290, 1291-92 (1992). To demonstrate prejudice, "defendant
must show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome." Strickland, 466 U.S. at 694. If
counsel's performance is found to have been competent, the court need not
determine whether defendant suffered prejudice. See id. at 697. In
addition, judicial scrutiny of counsel's performance must be highly
deferential in light of the circumstances existing at the time. See In re
Ross, 158 Vt. 122, 126, 605 A.2d 524, 526 (1992). We will not disturb the
decision of the trial court unless clearly erroneous. See In re Hanson,
160 Vt. 111, 114-15, 623 A.2d 466, 468 (1993). Applying this standard of
review, we uphold the superior court's conclusion that counsel's decisions
not to cross-examine Tobler and file a motion in limine regarding the
threat did not fall below the applicable standard of competency.
As an initial matter, we find that the trial court applied the correct
standard for evaluating counsel's representation of defendant. The trial
court quoted Strickland for the proposition that plaintiff must show that
"in light of all the circumstances, the identified acts or omissions were
outside the wide range of professionally competent assistance."
Strickland, 466 U.S. at 690. The court found that failure to file a motion
in limine "was not good attorney practice" but was within "the wide range"
of practice in 1983. Defendant misinterprets the court's holding as
establishing a "lowest common-denominator" approach to attorney competence.
The court, in fact, was simply applying the Strickland standard and
concluded that failure to file the motion was not outside the range of
competency. We find the lower court applied the correct standard.
Even if we agreed that counsel's failure to file the motion in limine
fell below the applicable attorney competency standard, two additional
reasons would lead us to affirm the trial court. First, the primary reason
not to cross-examine Tobler was that he could not in his direct testimony
make an in-court identification of defendant as the person he saw on the
night of the murder. Counsel did not want to give the State a second
opportunity to obtain that identification on redirect. Although defendant
argues that the State would have been prohibited by the presiding judge
from trying again to get an identification, we think that relying on a
favorable ruling of the judge would have been extremely risky in the
circumstances. See People v. Giallombardo, 512 N.Y.S.2d 481, 482 (N.Y.
App. Div. 1987) (redirect examination permitted to correct misimpression
created by defense counsel during cross-examination regarding witness's
ability to identify defendant); State v. Smith, 461 A.2d 1074, 1076 (Me.
1983) (witness's identification during redirect examination of gun used in
robbery did not exceed scope of cross-examination where such examination
included questioning concerning the gun). Moreover, counsel's decision not
to take this risk was bolstered by the reasons to discount Tobler's
testimony which had emerged on direct examination: Tobler had consumed a
significant quantity of alcohol that night, he had only a brief opportunity
to observe the passing men, he delayed telling the police of his sighting
for almost six months, and he had previously committed a crime involving
moral turpitude.
Second, we find it almost certain that a motion in limine would have
been unsuccessful. See Siglar v. State, 541 N.E.2d 944, 947 (Ind. 1989)
("To establish that the failure to object to this evidence resulted in
inadequate representation, [defendant] must show that his counsel's
objections would have been sustained if they had been made."). The point
of the cross-examination would have been to show that Tobler's story had
changed. Evidence that the witness was threatened would be relevant, even
though there was no proof that it could be tied to defendant, because it
explained that change. See State v. Walker, 571 A.2d 686, 689-90
(Conn. 1990) (in explaining inconsistent testimony, witness was allowed to
explain that she received threats and was "too frightened to tell the
truth," even though threats could not be tied to defendant); Washington v.
State, 445 A.2d 684, 686 (Md. 1982) ("[I]t is generally held that evidence
of threats to a witness or fear on the part of a witness, in order to
explain an inconsistency, is admissible in criminal cases for credibility
rehabilitation purposes even if the threats of fear have not been linked to
the defendant."); People v. Rivera, 553 N.Y.S.2d 707, 710 (N.Y. App. Div.
1990) ("It is appropriate to elicit testimony concerning non-attributable
threats made to a witness, where the purpose is to explain inconsistent
statements brought out by defense counsel, provided that the jury is duly
cautioned as to the way in which it may use this evidence."). Since the
motion would not have been granted, we cannot find ineffective assistance
of counsel based on the failure to file it.
Because defendant has not met his burden of showing by a preponderance
of the evidence that counsel's actions were unreasonable, we need not
determine whether he suffered prejudice as a result. See Strickland, 466 U.S. at 697; In re Dunbar, 162 Vt. 209, 216, 647 A.2d 316, 322 (1994).
Affirmed.
BY THE COURT:
_______________________________________
Jeffrey L. Amestoy, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
James L. Morse, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn R. Skoglund, Associate Justice
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