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03/18/88 STATE NEBRASKA v. ARTHUR H. BARKER
SUPREME COURT OF NEBRASKA March 18, 1988 STATE OF NEBRASKA, APPELLEE, v. ARTHUR H. BARKER, APPELLANT Appeal from the District Court for Douglas County: J. Patrick Mullen, Judge. Boslaugh, White, Caporale, Shanahan, and Grant, JJ., and Brodkey, J., Retired, and Colwell, D.j., Retired. Boslaugh, J., Concurring. Colwell, D.j., Retired, joins in this concurrence.
SYLLABUS BY THE COURT 1. Trial: Judges: Recusal. A Judge, who initiates or invites and receives an ex parte communication concerning a pending or impending proceeding, must recuse himself or herself from the proceedings when a litigant requests such recusal. 2. Trial: Judges: Witnesses: Rules of Evidence. The Judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point. Neb. Evid. R. 605 (Neb. Rev. Stat. § 27-605 (Reissue 1985)). 3. Trial: Judges: Witnesses: Rules of Evidence: Recusal. Although a Judge is not sworn as a witness, Neb. Evid. R. 605 contains a bar to the Judge's testifying and disqualifies the Judge as a competent witness in proceedings over which the Judge presides. Neb. Rev. Stat. § 27-605 (Reissue 1985). The opinion of the court was delivered by: Shanahan Although the information charged Arthur H. Barker with murder in the second degree, see Neb. Rev. Stat. § 28-304 (Reissue 1985), the jury found Barker guilty of the lesser-included offense of manslaughter, see Neb. Rev. Stat. § 28-305 (Reissue 1985), concerning the death of Patricia A. Pappas. As his sole assignment of error, Barker contends that the sentencing Judge should have recused himself, as requested by Barker, on account of the Judge's ex parte contact with members of the victim's family. Barker's contention presents a question of first impression in Nebraska. We set aside the sentence imposed on Barker and remand this matter for a sentence hearing and imposition of sentence on Barker. Shortly after the verdict was announced in court, the prosecutor approached the trial Judge and informed the court that the victim's parents and sister wished to visit with the Judge because the victim's family were nonresidents of Nebraska.
Rev. 222 Neb. At the sentence hearing. To counter Barker's claim that the trial Judge should have recused himself as a result of meeting with the victim's family. which is the maximum penalty of imprisonment prescribed for manslaughter. . .2d 800 (1985))." The Judge further expressed: The Court was in no way prejudiced by the meeting with the family and as far as the Court's reassessing its own ability to be fair and consider all the facts and circumstances in this case." In the course of the meeting. According to the court. To support its argument.2d 472 (1984)). In connection with Barker's request for recusal. that the Judge "entertained members of the deceased's family in his chambers prior to trial. 358. it would be available to Counsel as well as to the Court. Generally.2d 823 (1970). its opinion and judgment would not be colored at all by the visit had with the family. 368 N. . the State argues that "ince the appellant has not shown that the sentencing Judge was in any way influenced by his contact with the victim's family. 386 N. The defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence even if he may have no right to object to a particular result of the sentencing process. their thoughts could be disclosed in a rational way. the Judge stated: "Based upon the statements made by the Court on the record at the time you referred to on the record. must satisfy the requirements of the Due Process Clause. 386 N." Brief for Appellee at 8-9. After counsel's comments. . 2d 393 (1977). the Court sees no basis or grounds to recuse itself from this matter. for which the presiding Judge was the same Judge who had visited with the victim's family. we have stated: "'"A party seeking to disqualify a Judge on the basis of bias or prejudice bears the heavy burden of overcoming the presumption of judicial impartiality. § 28-105(1) (Reissue 1985).W.2d at 872-73 (quoting from In re Estate of Odineal.. 741.W. immediately before the sentence hearing. Later. Dondlinger. The prosecutor and Barker's lawyer declined to attend the meeting requested by the family. does emphasize the unquestioned importance of the sentencing process in the criminal Justice system. the expression in Gardner." State v. although the record indicates that such correspondence was sent by the family. in the form presented by this appeal. supra. 44 Ill."'" State v. . While consideration of questions reaching constitutional dimensions is unnecessary for Disposition of Barker's appeal. 751. See Neb. 872 (1986) (quoting from State v.E. . "A motion to disqualify a trial Judge on account of prejudice is addressed to the sound discretion of the trial court. neither the State nor Barker presented evidence regarding the sentence to be imposed. supra at 751. 349. 97 S. Gardner v. a Class III felony." To say that any involuntary meeting or conversation.2d 866. the Judge recounted what had transpired during his meeting with the victim's family. Stat. the ruling on a motion to disqualify a trial Judge on the ground of bias and prejudice will be affirmed on appeal unless the record establishes bias and prejudice as a matter of law. the record does not contain a verbatim record of the Judge's visit with the victim's family. the family was "overwrought" and "upset by the verdict being manslaughter and not second-degree murder. the State directs us to The People v. did not give cause for his disqualification. as well as the trial itself. Barker's lawyer requested that the Judge recuse himself in view of the meeting in question and its prejudice to Barker regarding any prospective sentence. 2d 550. 218 Neb. 51 L.W.W. 1197. Hicks. who was alleged to be a relative of the homicide victim and who asked to be allowed to sit in the front of the courtroom. . Therefore. 672. which involved a conviction for murder and the trial Judge's unsolicited ex parte contact with a prospective witness." The presentence report on Barker does not contain any correspondence from the victim's family. but reflects the Judge's characterization or description of what transpired at that meeting. and secondly. In refusing to recuse himself from the sentence hearing. which was attended by members of the victim's family. no matter
. The Illinois Supreme Court found that the questioned contact did not prevent a fair trial for the defendant and explained: In our opinion the Judge's conversations with [the prospective witness] . there was no error in the refusal of the Judge to recuse himself from sentencing . Dondlinger. the Judge met with the victim's parents and sister in the absence of counsel and without recording what transpired at that meeting. Florida. informing counsel about the family's wish. the court sentenced Barker to imprisonment for a term of 6 2/3 to 20 years.S. Ed. Barker's lawyer objected to the court's meeting with the victim's family. 168. or give rise either to unfairness or a probability of unfairness which fatally infected the trial. 430 U. viz. Ct. Most certainly the occurrences relied upon do not support the major premise of defendant's argument here. 256 N. 220 Neb. Characterizing the burden of proof for a motion to disqualify a Judge. t is now clear that the sentencing process. the Judge suggested that the family write him so that "first of all.The Judge conferred with the prosecutor and Barker's lawyer. Gillette. 357 N. Apparently in chambers. .
§ 27-605 (Reissue 1985).2d 807 (1979). should have recused himself from the sentence hearing. The choice is the result of inability to evolve satisfactory answers to questions which arise when the Judge abandons the bench for the witness stand. also. Who rules on objections? Who compels him to answer? Can he rule impartially on the weight and
. App. therefore.W. disqualify him from presiding at the sentencing hearing. In determining that the sentencing Judge." 100 Wis. 605: The solution here presented is a broad rule of incompetency. Barker calls our attention to cases such as State v. If a litigant should not have to face a Judge when there is a reasonable question of the Judge's impartiality.W. as an extrajudicial source of information imparted to a Judge. The record does not show that the defense was subsequently improperly restricted in either direct or crossexamination. moreover. In this case. Valencia. 44 Ill. In Valencia. To counter the State's argument. this court stated: It would appear that objections to. 206 Neb. 3d 799. 421 N.2d 1319 (1981). in itself. held: contact with the victim's relatives necessitated the Judge's disqualification from the proceedings). 294 N. An ex parte communication. who initiates or invites and receives an ex parte communication concerning a pending or impending proceeding. Evid. Finally. Neb. 2d at 557. the Arizona Supreme Court." Neb. a relative of the homicide victim contacted the Judge before sentencing and suggested what penalty should be imposed in view of the defendant's other convictions. or consider ex parte communication concerning a pending or impending proceeding before the Judge.E. Packett. opposing counsel. the Judge fortuitously met the victims at a local tavern and discussed "generalities" with them. at 552." 124 Ariz.E. 124 Ariz. State v. R. Dunigan. The advisory committee's note supplies insight into the purpose of Fed. 2d at 425. is a material error only if the adverse party is prejudiced by an inability to rebut the facts communicated and if improper influence on the decision maker appears with reasonable certainty to have resulted. 96 Ill.W.2d at 525.2d at 808. Evid. 602 P. 605: "The Judge presiding at the trial may not testify in that trial as a witness. R. Neb. or consider an ex parte communication concerning a pending or impending proceeding before the Judge. R. Evid. Rev. 302 N. that is. was a voluntary and intentional or deliberate meeting between the sentencing Judge and the victim's family. we hold that a Judge. none would rationally deny the validity of the general rule expressed in State v. 2d 411. Finding that the ex parte contact did not warrant reversal of the defendant's conviction. or recognizing no incompetency. must recuse himself or herself from the proceedings when a litigant requests such recusal. No objection need be made in order to preserve the point. when requested by the defendant. 206 Neb. correspondingly.2d at 608. is applicable regarding recusal of a sentencing Judge. After the jury found Dunigan guilty of several felonies. the focal point of the proceedings became the sentence hearing. 100 Wis. Why is there no requirement that a litigant must show a Judge's prejudice from a judicially initiated or invited ex parte communication? For the rule we have adopted today. 256 N. R.E. In Dunigan the court expressed: "he involuntary meeting that occurred between the Judge and the victims of the crime did not. holding that a Judge should not initiate. the State then refers to State v.2d 517 (1981): "An ex parte communication. After Barker's conviction. 139. The State believes that the appropriate standard to determine whether prejudice has resulted from an ex parte communication with a presiding Judge is expressed in State ex rel.how trivial. The State also suggests that People v. invite. 605. concluded that "uch a rule is a requisite to the orderly administration of Justice in any judicial system. however. invite. there is nothing in the record from which it may be reasonably inferred that prejudice resulted to the defendant. 602 P. rather than such alternatives as incompetency only as to material matters leaving the matter to the discretion of the Judge." 96 Ill.2d at 827.2d 1072 (1983) (after the jury found defendant guilty but before sentencing.2d 605 (1980). gives rise to cause for disqualification would present too easy a weapon with which to harass the administration of criminal Justice and to obtain a substitution of Judges. 302 N. reasonably raises a question about the Judge's impartiality in disposing of questions germane to the subject of the extrajudicial communication. at 140. 548. The cases presented by the State regarding a Judge's ex parte communication are readily distinguishable from the situation now before us. the Judge solicited contact with the victim's relatives. which was a murder case. Barker's case involves an ex parte communication which was responsively invited by the sentencing Judge and. 136 Ariz. 3d at 813. arguments about. See. a proceeding in which a sentencing Judge should display equanimity. 463.2d at 1330. Stat. or after appropriate notice to. 421 N. or evidence affecting the limits of cross-examination ought to be made only in the presence of. Israel.W. supra : A Judge should not initiate. in which a prosecutor initiated an ex parte communication with the trial Judge and complained about the latitude extended to the defendant's lawyer on cross-examination. Therefore. Valencia. 605 and. Evid. 605 is a verbatim counterpart of Fed. a rationale lies within Neb. Leslie. which did not relate to any aspect of Dunigan's trial. Irby v. 294 N. Evid. 666 P. App. R.
Reasoning that the finder of fact must be "'free from external causes tending to disturb the exercise of deliberate and unbiased judgment.2d 498. Great Atlantic & Pacific Tea Co. was an action for breach of contract and warranties concerning a pipe-wrapping machine manufactured by Price Brothers Company. Weinstein's Evidence para. for the duties of a Judge and a witness are incompatible. . 629 F. Franklin Pork. avoid conferring his seal of approval on one side in the eyes of the jury? Can he. 1980). . 210 Neb. 238. 36 L." which included the trial Judge. . . required reversal in Cline v." Although a Judge is not sworn as a witness. 605 advisory committee's note. may nevertheless assume the role of a witness." 3 J. 3 J. . 1977). 6 F. scandals in the courts. . . 238. 917 (1892). observed Price Brothers' malfunctioning pipe-wrapping machine.
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The rule provides an "automatic" objection. reported to the Judge concerning the clerk's observations at the plant. Franklin Pork. . United States. . nevertheless. If he testifies he would have to pass upon the competency of his own testimony.2d at 446-47. the hindrance of Justice. reversal will be mandatory. Evid. The Judge's law clerk visited Price Brothers' plant. Evid. the appeals court concluded that the potential for prejudice resulting from the identification of the witness with the trial court was so great that the verdict could not be permitted to stand.. See Cline v. Neb.S. . the appellate court must examine the particular circumstances of the case to determine whether the Judge's behavior was so prejudicial to the substantial rights of the parties as to merit a reversal. (supra) at para. although the Judge does not formally take the witness stand: During a trial. 629 F.Ct.W. Price Bros. apparently.2d 444 (6th Cir. Inc. a Judge. 1984). 13 S. . The appeals court recognized the judicial duty to avoid off-the-record contacts that might be influential in the outcome of a bench trial and concluded:
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In a case analogous to the one before us. with the probable result of excluding the testimony but at the price of continuing the trial before a Judge likely to feel that his integrity had been attacked by the objector. Evid. although he is neither called to testify nor voluntarily takes the stand. 149. avoid an involvement destructive of impartiality? .'" and that the courts must not tolerate "'any ground of suspicion that the administration of Justice has been interfered with. . To require an actual objection would confront the opponent with a choice between not objecting. in a jury trial. . A trial Judge's use of reports from a "monitoring-team.admissibility of his own testimony? Can he be impeached or cross-examined effectively? Can he. and to avoid any appearance of impropriety or partiality. and would be subject to embarrassing conflicts with counsel. 53. a Judge presiding at a trial is not a competent witness. the court applied Fed. Fed. . Weinstein also concludes that a Judge acts as a witness within the purview of Rule 605. v. and as a witness he might be regarded a partisan. 140. Philadelphia Gear Corp. his role as witness is manifestly inconsistent with his customary role of impartiality in the adversary system of trial.2d 667 (1981). in a bench trial. 146 U. 551 F. and. 605 at 605-3 (1987). This court stated in Cline : The purpose of Rule 605 was to avoid embarrassing the court. The trial Judge repeatedly cautioned the jury not to attach any special significance to his law clerk's testimony. In Price Bros. also. Kennedy v. with the result of allowing the testimony. United States.'" quoting Mattox v. R. supra (questioning by a Judge amounted to his testifying). . 1925): "Indeed.2d 593 (5th Cir.2d 667 (1981). and objecting. Terrell v. 210 Neb.. Berger. See. 605 contains a bar to the Judge's testifying and disqualifies the Judge as a competent witness in proceedings over which the Judge presides. According to Weinstein. . 313 N. The Court of Appeals. R. 605 at 605-14. 50. Co. "Rule 605 was drafted as a broad rule of incompetency designed to prevent a Judge presiding at a trial from testifying as a witness in that trial on any matter whatsoever. That is. of subjecting its impartiality to doubt and of placing the defendant at an unfair disadvantage by admitting the presiding Judge as a witness is very obvious. Such behavior by a Judge is at variance with the policy expressed in Rule 605 and should be treated analogously to direct violation of the Rule. R." McCormick on Evidence § 68 at 164 (E. 313 N. United States.. The danger to the dignity of the bench. As noted in Terrell v. Inc. At times. An explanation for Rule 605 is found in the observation by McCormick: "hen a Judge is called as a witness in a trial before him. . The reason that no objection is required is to eliminate the possibility of any hostility arising between the trial Judge and counsel. Berger. the Fifth Circuit reversed a jury verdict for the plaintiff where the trial court permitted its law clerk to testify to what he saw at a curiosity-inspired private view of the scene of a slip-and-fall injury. Weinstein & M.Ed. 499 (4th Cir. held that it was required to vacate the judgment in the exercise of its supervisory power. 605 in considering the conduct of a Judge in a bench trial. particularly in a criminal case. Cleary 3d ed.W.. The functions of a Judge and a witness are incompatible and it is utterly impossible for one to exercise the rights of a witness and to perform the duties of a Judge at one and the
. Weinstein & M.
what will be the scope of cross-examination. irresolution which thereby prevented determining whether Barker was sentenced by an impartial court." Tyler v. at 246.2d at 1271. Those incompatible roles. Evid. 668 F. in Alice's words in Alice's Adventures in Wonderland. the Judge.) 668 F." 210 Neb. United States. See. 605 at 605-4 (1987). 313 N. Thus. § 455 (1982) provided: (a) Any Justice. 1101(4)(b) (Neb. § 27-1101(4)(b) (Reissue 1985)). Yet. also. . as a matter of judicial economy. supra. Eubanks. Circuit Judge. Dillon. this court observed that "rom a practical point of view. 427 F. then.
. because "he could not act both as a Judge and as a witness"). 233 F. the District of Columbia circuit held: showing of an appearance of bias or prejudice sufficient to permit the average citizen reasonably to question a Judge's impartiality is all that must be demonstrated to compel recusal under section 455. Evid. the problem of trials within trials. and would be subject to embarrassing conflicts with counsel. R. 210 Neb. Acknowledging the rule adopted in several other circuits. if not indispensable. In the final analysis. 300. witness as well as Judge. and concluded: "Can the parties waive the disqualification of the Judge under § 27-605? We are persuaded that for the sake of the orderly administration of Justice and meaningful review. imposing a burden on a litigant to prove prejudice through the testimony of one disqualified from testifying is an impossible standard. If he testifies he would have to pass upon the competency of his own testimony. Stat.2d at 671. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party. See Neb.2d 353 (1986). In Barker's case. whether the sentencing Judge was influenced by his meeting with the victim's family became the crucial question. obtaining the Judge's testimony concerning his attitude or Disposition toward sentencing contravenes the testimonial bar and witness disqualification imposed by Neb. 227 (4th Cir. 131.same time. id. they cannot. 2d 262. 266 (1957) (trial court can refuse to testify regarding his method of selecting members of a grand jury. 605 spares a litigant from the dilemma of allowing a Judge's prejudicial testimony to remain unchallenged or. in establishing an accurate and complete portrayal of events and statements during the visit with the victim's family. . Weinstein's Evidence para. without the Judge's testimony. of subjecting its impartiality to doubt and of placing the defendant at an unfair disadvantage by admitting the presiding Judge as a witness is very obvious. by questioning the Judge. the situation becomes "Curiouser and curiouser!" Weinstein makes the acute observation: "Permitting a Judge to testify raises perplexing questions of who will rule on objections.W. or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. Cir. 289. and as a witness he might be regarded a partisan. Weinstein & M. the question about the Judge's possible prejudice could not be resolved. such as a hearing to determine whether a Judge was improperly influenced by an ex parte communication initiated or invited by the Judge.S.2d at 672. who will compel answers. who other than the Judge could better testify about the Judge's attitude or mental Disposition toward sentencing in this case? At that point. We realize that the Nebraska Evidence Rules are inapplicable at a sentence hearing.2d 1238 (D. 94 So. Also. Rev.W." 3 J. for the duties of a Judge and a witness are incompatible. R. ought to be avoided and eliminated if possible. Basically.W. a Judge presiding at a trial is not a competent witness. and how counsel is to maintain a proper relationship with the court.and perhaps quite naturally required to assume the ultimate role of advocate in defense of his own impartiality which had been brought into question. the bar or disqualification under Neb. Swenson. Judge. 222 Neb. 415-16 (8th Cir. risking the wrath of a Judge whose impartiality has been attacked. or personal knowledge of disputed evidentiary facts concerning the proceeding . "Indeed. it would be nearly impossible for the presiding Judge to be cross-examined" on the reports utilized in the proceedings. (Emphasis in original. was required to assume dual and simultaneous roles -witness and judge -.C. On the other hand.. . Evid. unfortunately but necessarily.2d 412. Heldt. However. a soliloquy shared with counsel. 1970) (quoting from Lepper v. State v. also. In Cline. are inconsistent with and even antagonistic to a fair and safe administration of criminal Justice. at 244. 1916) (Woods. See. In United States v. 313 N. Moreover. If a trial Judge were allowed to testify concerning a matter in the proceedings over which that Judge was presiding. Berger. R. in effect. 605. State v. We believe that the recusal rule we have adopted today will help solve such a problem by discouraging the cause of the problem. the appeals court considered a disqualification statute in determining whether the trial Judge should have recused himself on the defendants' request. The pertinent part of 28 U. the question is: Did the sentencing Judge have some preconceived opinion or Disposition toward the sentence to be imposed on Barker? Although other participants in the questioned meeting might have provided some information. the Judge's comments are. 382 N.C. In Barker's case. 1981). if the trial Judge's comments about his conduct cannot be challenged. The danger to the dignity of the bench. Concurring)). A showing of the appearance of bias or prejudice would seem necessarily to raise a reasonable question concerning the Judge's impartiality. the Judge's "testimony" was extremely important. 232 La.
Learn more about what you receive with purchase of this case. Boslaugh. all of which are proper for consideration by the court. However. we appreciate the trial Judge's predicament precipitated by the prosecutor in this case. to his determination of an appropriate sentence is the gaining of knowledge concerning defendant's life. 246-47. 19880318 © 1997 VersusLaw Inc. A presentence investigation has nothing to do with the issue of guilt. a sentence hearing to be conducted and sentence imposed by a Judge other than the Judge who imposed sentence on Barker.2d 646 (1969). we noted that a trial Judge has a broad discretion in the source and type of evidence he may use to assist him in determining the kind and extent of punishment to be imposed. Sentence vacated. .the question about the Judge's prejudice arose at a hearing distinct from the sentencing and involved a question about impartiality of the one who would impose sentence rather than a question about the type of sentence which would be appropriate in a given case. 164 N. 164 N. and other information including his own observations of the defendant. As the U. 241. 183 Neb. police reports. I think it is important to remember that presentence reports consist largely of hearsay and ex parte statements.. The rules of evidence and the right of confrontation do not apply to sentencing proceedings. affidavits. J. courts in this country and in England practiced a policy under which a sentencing Judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law. Although the majority opinion does not hold that a Judge may not consider an ex parte communication concerning a proceeding pending before him. Consequently. Concurring. I concur in the judgment of the court and that part of the opinion which holds that a Judge should not initiate or invite an ex parte communication concerning a pending or impending proceeding. Ct. In gaining this information. and previous conduct. The rules governing due process with respect to the admissibility of evidence are not the same in a presentence hearing as in a trial in which guilt or innocence is the issue. we set aside the sentence imposed on Barker and remand this matter to the district court for further proceedings. other than in recidivist cases.
Buy This Entire Record For $7. The Judge's declination of the meeting would have the appearance of absolute apathy for the distraught family. Rose. character. and of course in the smaller communities sentencing Judges naturally have in mind their knowledge of the personalities and backgrounds of convicted offenders. Supreme Court held in Williams v. . Highly relevant. is almost without limitation as long as it is relevant to the issue.
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Official citation and/or docket number and footnotes (if any) for this case available with purchase.2d at 648-49.
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(Citations omitted. 337 U.S. New York. The latitude allowed a sentencing Judge at a presentence hearing to determine the nature and length of punishment. Ed. and cause remanded with direction.) Id. 1079. if not essential. Most assuredly. 809. the trial court may consider reports of probation officers. 69 S. 1337 (1949): Tribunals passing on the guilt of a defendant always have been hedged in by strict evidentiary procedural limitations. But both before and since the American colonies became a nation.W. namely. About Us
.W. at 811. 93 L. Out-of-court affidavits have been used frequently.S. the opinion appears to rely to some extent upon authorities to that effect. we must also appreciate that an appearance of partiality from the meeting immeasurably outweighs any appearance of insensitivity. Inc. . In State v.