Opinion
12-P-783
10-05-2015
COMMONWEALTH v. EMILIO LACEN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of trafficking in cocaine with a net weight of 200 grams or more. He now appeals.
The only substantial question in this case involves the trial judge's failure to recuse herself. During pretrial proceedings, the defendant's first attorney filed a motion to withdraw from his representation of the defendant. On October 27, 2010, the motion judge, also the trial judge, held a hearing on that motion. At this hearing, at sidebar, the attorney represented to the trial judge that his secretary had been threatened by members of the defendant's family who wanted the attorney to withdraw from representing the defendant, wanted a refund of his fees, and wanted him to pay for replacement counsel, selected by the family. After listening to and crediting the attorney's representations, and granting the motion to withdraw, the judge, apparently referring to a motion to recuse that had been filed earlier, said, "I won't try the case based on what you've told me. I won't try it, I'll have another session try it. I will be involved to the extent of being sure that the case is on schedule to be tried."
Two days later, at a subsequent hearing, the trial judge reiterated her decision to recuse herself: "It's not going to be tried in this session because as I explained in [the defendant's] presence [the] other day, [counsel] made certain information known to me and I think in fairness to [the defendant] the judge who tries the case should not know that information." About a month later, the judge again confirmed in open court her intention to recuse herself.
Nonetheless, she did, in fact, preside at trial. On February 15, 2011, the judge entertained final pretrial motions, empaneled the jury, and allowed the parties to conduct a voir dire examination of two witnesses. At the end of the February 15 session, the defendant's new counsel said, "I would state also for the record that my client has voiced to me serious concerns. And I'm only doing this because my client has asked me to do this, your Honor, but he has serious concerns with your Honor being the judge on this case, given the fact that you have previously stated that you were going to recuse yourself of this case and then put yourself back on the trial."
The judge responded, "That's fair. That's fair." She asserted her previous statements about recusal were made "too hastily." She explained that when the defendant's first attorney had asked to withdraw, the defendant had already expressed concern about the court's ability to be fair: this concern, in her view, was based on his misunderstanding of a comment she made concerning suppression law, one that related to an officer's subjective reason for effectuating a traffic stop (and the irrelevance thereof). In effect, her initial decision on recusal was the result of being overly accommodating to the defendant.
Her initial decision was not, she explained, the result of any belief on her part that she "could not be fair in this case and that [she] could not make evidentiary rulings . . . in a manner consistent with [her] understanding of the law." Thus she did not change her mind on the core issue: she stated that she "can be fair." Despite her previous statements, the judge asserted that she decided to preside over the defendant's trial because of the "unprecedented . . . pretrial proceedings that implicate the identity of an informant, and . . . the numerous [pretrial] rulings that [she had already] made in this case, and with respect in particular to the admissibility of certain evidence, all of which will be reviewed by an Appeals Court, I have done nothing in this case that is not on the record and part of the record. That the case is simply, the situation is too complicated to send it out to another session for trial. . . . And so, consequently, I have examined, as I am required to do, my conscience. I have never believed that I could not be fair in this case. To the extent that I did say that I would recuse myself, it was predicated solely on my desire that a defendant in a case like this one, where the stakes are so high for the defendant in terms of the potential sentence in the event of a conviction, that the defendant not believe that the judge is not open minded and fair to him." She reiterated that the defendant's new counsel had access to, and had reviewed, the impounded transcript of the sidebar conference at which predecessor counsel spoke to the judge about the defendant's (and the defendant's family's) alleged mistreatment of him.
We note that the defendant's argument on this issue draws its strength from the judge's initial statements. In particular, there is at least some substance to a claim that a judge's "impartiality might reasonably be questioned," S.J.C. Rule 3:09, Canon 3(E)(1), as appearing in 440 Mass. 1319 (2003), when in multiple pretrial hearings that judge said that "in fairness," she would not sit on a defendant's criminal trial, then ultimately did so. However, the information that precipitated the judge's initial comments was obtained (via the original attorney's representations) in the course of a motion hearing, and information obtained during judicial proceedings does not ordinarily form the basis for a finding that recusal is mandatory. See Commonwealth v. Adkinson, 442 Mass. 410, 415 (2004) ("To show that a judge abused his discretion by failing to recuse himself, a defendant ordinarily must show that the judge demonstrated a bias or prejudice arising from an extrajudicial source, and not from something learned from participation in the case"). And here, the judge's subsequent thorough explanation of why she initially was going to recuse herself and why she changed her mind clarified what she initially meant by "in fairness," and why she ultimately concluded recusal was unnecessary. Cf. Oslin v. State, 543 N.W.2d 408, 417 (Minn. Ct. App. 1996) (discussing preference for, when judges change their minds on recusal motions, an explanation of the reasons motivating the change). This case approaches the line where a refusal to recuse would demand reversal, but does not cross it.
The defendant claims, second, that the trial judge erred in denying his request to call the prosecutor as a witness in order to impeach Trooper Flanagan. Trooper Flanagan kept in his cruiser for a year a copy of a "turret tape" that provided a record of his radio communications when he effectuated a traffic stop of the defendant. About a year after the arrest the prosecutor stated in court that the trooper "told me that he did not believe that anything was in fact recorded," and that the prosecutor had the trooper "looking into" whether there was such a tape. When the tape was formally requested by the defense, the Commonwealth turned over what was either a partial tape or an irrelevant tape, but at a hearing the next month, the prosecutor announced that he had discovered that day that Trooper Flanagan had the copy of the turret tape in his possession, and the prosecutor provided a copy to the defense.
The defendant's opening argument cast aspersions on Trooper Flanagan, specifically regarding his handling of the turret tape, claiming Flanagan misled the prosecutor into thinking Flanagan did not have any tape recording, which led to the defendant missing opportunities to use the tape to impeach Flanagan at various evidentiary hearings that occurred before trial. During cross-examination of Flanagan, the judge sustained the Commonwealth's objections to questions posed to Flanagan about what he had told the prosecutor. The defendant requested to call the prosecutor as a witness to impeach Flanagan by exploring what Flanagan had told the prosecutor and how the prosecutor had come to discover the tape in Flanagan's cruiser. The impeachment witness would, the defendant argues, have valuably raised questions of Flanagan's credibility generally, and of his bias in this case. (No claim is pressed that Flanagan doctored the tape.)
"When the defendant resorts to the extraordinary means of calling the prosecutor as a witness, we believe that his defense will not be jeopardized if he must make a satisfactory offer of proof as to the need for the prosecutor's testimony." Commonwealth v. Blaikie, 375 Mass. 601, 608-609 (1978). In this case, the judge suggested that the defendant first see if his prior counsel could lay a sufficient foundation for impeaching Flanagan about the turret tape, as without such there was nothing for the prosecutor's hypothetical testimony to impeach: the Commonwealth's objection to the relevant question posed to Trooper Flanagan had been sustained. Trial counsel was allowed to conduct a voir dire of the initial defense attorney before the jury were brought in on the last day of trial, but it yielded nothing relevant. On that same day, the prosecutor filed a sworn affidavit concerning both his interactions with Trooper Flanagan and the turret tape. In his affidavit, the prosecutor said he did "not have a specific recollection of Trooper Flanagan telling me that recordings did not exist or making the representation that he told me that they did not exist." He also said, "Before the hearing started, I had a conversation with Trooper Flanagan and told him that there were concerns that the recording that I had provided was not the right recording. He told me he had a copy of the recording in his cruiser. I asked him if he was sure that it was the recording from this incident and he said something to the effect that he had listened to it and it definitely was. He offered to get the recording from his cruiser."
Although the prosecutor also recognized that he had so represented to the court, explaining that his prior statement likely referred mistakenly to communications of the Littleton or Bolton police or fire departments instead of those of Trooper Flanagan.
There is no suggestion that if called to the stand, the prosecutor's testimony would have differed from this. Such testimony would not have been helpful in impeaching Trooper Flanagan. Consequently, even if there was error in failing to allow the prosecutor to be called when the defendant asked to do so, a question we need not and do not decide, the defendant has not met his burden of showing any error was prejudicial.
Finally, the defendant argues that his posttrial motions for discovery were improperly denied. In light of the prosecutor's affidavit and the original defense attorney's testimony at the voir dire hearing, there was no abuse of discretion in denying the defendant an opportunity to conduct a voir dire examination of the prosecutor. The defendant also sought internal affairs records in respect to Trooper Flanagan. In the absence of any reason to believe that an internal affairs investigation of Trooper Flanagan took place -- and no evidence on the point that was presented to the motion judge -- there was no basis for allowing this request and no error in its denial.
Judgment affirmed.
Orders entered January 22, 2014, denying postconviction motions affirmed.
By the Court (Kafker, Rubin & Milkey, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 5, 2015.