State v. Carter , 77 Wash. App. 8 ( 1995 )

Sweeney, J.

(dissenting) — "A fair trial in a fair tribunal is a basic requirement of due process.” State v. Madry, 8 Wn. App. 61, 68, 504 P.2d 1156 (1972) (quoting In re Murchison, 349 U.S. 133, 136, 99 L. Ed. 942, 75 S. Ct. 623 (1955)); State v. Parnell, 77 Wn.2d 503, 507, 463 P.2d 134 (1969).

"Every procedure which would offer a possible temptation to the average man as a judge . . . not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.” Tumey v. Ohio, 273 U. S. 510, 532 [71 L. Ed. 749, 47 S. Ct. 437, 444, 50 A.L.R. 1243 (1927)]. Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way "justice must satisfy the appearance of justice.” Offutt v. United States, 348 U. S. 11, 14 [99 L. Ed. 11, 75 S. Ct. 11, 13 (1954)].

Madry, at 68-69 (quoting Murchison, 349 U.S. at 136).

The court’s comments during a hearing on Lonnie Carter’s Alford⁵ plea demonstrate clearly and unequivocally its opinion of Mr. Carter’s guilt. For the court to then preside over Mr. Carter’s subsequent trial violates the appearance of fairness doctrine in my judgment. I therefore respectfully dissent from my colleagues’ opinion.

The majority notes that the court’s comments were relevant to Mr. Carter’s Alford plea. To me, the fact that the court’s comments were offered during the course of a hearing on an Alford plea is irrelevant to the appearance of fairness issue raised by Mr. Carter. The focus of our inquiry here should be on the appearance of the court’s impartiality, not the reasons which might have prompted the court’s expression of partiality or the forum in which it was expressed. But even the nature of the proceeding in which the comments were made — a hearing on an Alford plea — lends support, I believe, to my conclusion that this matter should be reversed and remanded for a new trial.

On a plea of guilty, the court is only required to satisfy itself "that there is a factual basis for the plea”. CrR 4.2(d); State v. Norval, 35 Wn. App. 775, 781, 669 P.2d 1264 (1983). CrR 4.2(d) does not require that the trial court be convinced beyond a reasonable doubt that the defendant is in fact guilty. Norval, at 782. " 'It should be enough if there is sufficient evidence for a jury to conclude that he is guilty.’ ” Norval, at 782 (quoting State v. Newton, 87 Wn.2d 363, 370, 552 P.2d 682 (1976) (quoting United States v. Webb, 433 F.2d 400, 403 (1st Cir. 1970), cert. denied, 401 U.S. 958 (1971))). In fact, an Alford plea by its very nature is equivocal; the defendant pleads guilty without admitting guilt. In re Montoya, 109 Wn.2d 270, 280, 744 P.2d 340 (1987); In re Ness, 70 Wn. App. 817, 822, 855 P.2d 1191 (1993), review denied, 123 Wn.2d 1009 (1994); see also New York Underwriters Ins. Co. v. Doty, 58 Wn. App. 546, 550, 794 P.2d 521 (1990) (Alford-type plea does not allow "full and fair opportunity” to litigate, therefore doctrine of collateral estoppel should not apply to these kinds of pleas).

The court’s comments here go further than simply establishing a basis for Mr. Carter’s Alford plea; they are a definite expression of the court’s belief that Mr. Carter is guilty:

I find it hard to believe that these drugs that were found were not yours if they were found in your wallet. Now, maybe somebody put them there without your knowledge, but I really don’t buy that, and so I think you are responsible for those drugs. . . .

... I further think that you need to be held responsible for that. . . .

. . . [Y]ou had to know, . . ..

The prosecuting attorney apparently agreed with Mr. Carter, commenting in response to Mr. Carter’s motion for re-cusal:

As Mr. Barrett stated, in this case, I think, Mr. Barrett has a point, in that you have stated your beliefs. You are not going to be the trier of facts should this go to trial because you will not ultimately be making the decision, a jury would be, as to his guilt or innocence. However, you will be ruling on motions and objections, things like that. So, I think, in that respect, I think, Mr. Barrett has a good argument.

The State was correct. A trial judge is invested with enormous discretion in the conduct of a jury trial. State v. DeWeese, 117 Wn.2d 369, 380, 816 P.2d 1 (1991). His or her discretionary decisions are reversible only for abuse. For me, the potential for bias required by State v. Post, 118 Wn.2d 596, 619 n.9, 826 P.2d 172, 837 P.2d 599 (1992) exists when those discretionary decisions are being made by a trial judge who is already convinced of the defendant’s guilt and has said so.

Moreover, Post does not undermine the basic statement of law which should control this case: "The law goes farther than requiring an impartial judge; it also requires that the judge appear to be impartial.” Madry, at 70; State v. Brenner, 53 Wn. App. 367, 374, 768 P.2d 509, review denied, 112 Wn.2d 1020 (1989).

I would therefore conclude that the appearance of fairness doctrine has been violated and remand for a new trial.

Review denied at 126 Wn.2d 1026 (1995).

5 North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162, 91 S. Ct. 160 (1970).