State v. Pakulski

417 S.E.2d 515, 106 N.C. App. 444, 1992 N.C. App. LEXIS 533
CourtCourt of Appeals of North Carolina
DecidedJune 16, 1992
DocketNo. 9130SC446
StatusPublished
Cited by4 cases

This text of 417 S.E.2d 515 (State v. Pakulski) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Pakulski, 417 S.E.2d 515, 106 N.C. App. 444, 1992 N.C. App. LEXIS 533 (N.C. Ct. App. 1992).

Opinion

WALKER, Judge.

On appeal defendants argue the following: (1) the court erred in denying their motion to bar imposition of judgment on the armed robbery conviction based on a violation of their rights because certain exculpatory evidence was not timely disclosed; (2) the court erred in the imposition of sentences for armed robbery by violating their rights to freedom from double jeopardy and to due process of law; and (3) the court erred in sentencing defendants on their armed robbery convictions as this violated G.S. 15A-1335 because each defendant received a longer total sentence than was originally imposed.

I.

In their motion to bar imposition of judgment on the convictions for armed robbery, defendants renewed their motion to recuse Judge Freeman which was denied in May, 1989 and for appropriate relief which was denied 17 April 1990. We will treat each of these grounds separately. .

[449]*449A.

In regards to the motion to recuse, Russell McLean, attorney for defendant Rowe, testified that prior to the 31 March 1988 hearing he heard Judge Freeman say, “Why don’t you just plead the slimy sons-of-bitches guilty?” On the basis of this alleged statement, defendants assert that Judge Freeman should have excused himself or referred the motion to another trial judge.

G.S. 15A-1223 provides in pertinent part:

(b)A judge, on motion of the State or the defendant, must disqualify himself from presiding over a criminal trial or other criminal proceeding if he is:
(1) Prejudiced against the moving party or in favor of the adverse party;
(c) A motion to disqualify must be in writing and must be accompanied by one or more affidavits setting forth facts relied upon to show the grounds for disqualification.
(d) A motion to disqualify a judge must be filed no less than five days before the time the case is called for trial unless good cause is shown for failure to file within that time. Good cause includes the discovery of facts constituting grounds for disqualification less than five days before the case is called for trial.

We find no merit in defendants’ contentions for three reasons.

First, as noted in G.S. 15A-1223(c), a motion to disqualify must be supported by an affidavit setting forth the facts. Here the record contains no such affidavit or supporting document.

Second, although Mr. McLean testified to the statement he attributed to Judge Freeman, other witnesses present at the time did not recall Judge Freeman making such a statement, nor did Judge Freeman himself recall making this comment. He stated for the record that he did not have any prejudice for or against either side in the case. Although a trial judge should either recuse himself or refer the matter to another judge if there is “sufficient force in the allegations contained in defendant’s motion to proceed to find facts,” State v. Poole, 305 N.C. 308, 320, 289 S.E.2d 335, 343 (1982), we do not find “sufficient force” in the allegations made [450]*450by defendants to require Judge Freeman to disqualify himself or refer the matter to another judge. We do not believe that “a reasonable man knowing all of the circumstances would have doubt about the judge’s ability to rule on the motion to recuse in an impartial manner.” Id. at 321, 289 S.E.2d at 343.

Third, the statement attributed to Judge Freeman occurred prior to a hearing in March, 1988, in which the trial court denied defendants’ motion to dismiss. However, for whatever reasons, the defendants elected not to seek recusal of Judge Freeman until after the Supreme Court’s order of 4 May 1989. One must raise a motion to recuse at the earliest moment after acquiring knowledge of the facts which give rise to the motion to recuse. United States v. Owens, 902 F.2d 1154 (4th Cir. 1990). A defendant cannot choose to wait and seek a trial judge’s recusal until after the trial judge rules unfavorably to the defendant on some other grounds. Id. Defendants were dilatory and therefore waived their right to assign error to the denial of their motion to recuse.

B.

Defendants made a motion for appropriate relief after the fourth trial resulted in a mistrial, asserting the prosecution failed to disclose certain exculpatory testimony of Coleman Swanger until the fourth trial. Swanger testified that on the night of the incident at Dr. Abbate’s office he had just left work as a Waynesville police officer and was driving home on Church Street. His attention was focused on the left side of Church Street where he noticed the victim’s car, the doctor’s office and a pickup truck with dew on it in the parking lot of Ray’s Supermarket. He did not notice anything suspicious nor did he look to the right at the intersection of Montgomery Street and see Donna Rowe in a parked car. Swanger was not involved in the investigation and he never made any notes about his observations. Although Swanger mentioned his observations to other police officials, he was never interviewed by the prosecution until January, 1988. Defendants contend Swanger’s testimony was inconsistent with other evidence produced by the State and supports their theory that they were not in the state at the time of the incident.

The prosecution’s suppression of evidence favorable to an accused violates due process where the evidence is “material” either to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215 (1963). In the present case, after their indictment, defendants [451]*451made a general request for all exculpatory evidence in the possession of the prosecution. In evaluating whether the prosecutor has failed in his duty to disclose exculpatory evidence, the court must determine if the evidence is “material” to the question of guilt. United States v. Agurs, 427 U.S. 97, 49 L.Ed.2d 342 (1976). Undisclosed evidence “is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 87 L.Ed.2d 481, 494 (1985); State v. Coats, 100 N.C.App. 455, 464, 397 S.E.2d 512, 518 (1990). While it is doubtful that this evidence is exculpatory, even if so, it is not so material that there was a reasonable probability had it been disclosed the result of the trial would have been different. Accordingly, the trial court did not err in denying defendants’ motion for appropriate relief to bar imposition of judgment on the basis of the prosecution’s suppression of evidence.

II.

In their second and third assignments of error, defendants contend that the imposition of life sentences on the armed robbery charges violated due process and constituted double jeopardy. We disagree.

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Cite This Page — Counsel Stack

Bluebook (online)
417 S.E.2d 515, 106 N.C. App. 444, 1992 N.C. App. LEXIS 533, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pakulski-ncctapp-1992.