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State v. Washington

Superior Court of Rhode Island

July 19, 2017


         PROVIDENCE, SC. Supreme Court No. 16-151-C.A.

          For Plaintiff: J. Patrick Youngs, III, Esq., John M. Moreira, Esq. Lauren S. Zurier, Esq.

          For Defendant: Michelle M. Alves, Esq.


          KRAUSE, J.

         On December 8, 2015 a jury convicted Willie Washington of shooting a food delivery driver in a fit of road rage in the middle of the Providence College campus on November 15, 2014 at about 1:00 a.m. The evidence at trial included an anonymous 911 caller who offered the license plate of the shooter's vehicle. Two visiting nursing students from Connecticut identified the defendant as the shooter at separate show-ups after the police had arrested him during a foot chase not far from the campus and within about ninety minutes of the shooting. This Court denied the defendant's motion for a new trial on December 18, 2015, and he appealed his conviction to the Supreme Court.

         In March of this year, the defendant's private investigators learned that the 911 caller was Stephen Rasch, then a nineteen-year-old Providence College freshman from Dallas, Texas. After Washington's appellate attorneys from the Public Defender's Office spoke with Rasch on April 18 and May 1, 2017, the defendant interrupted his appeal, complaining to the Supreme Court that the state's trial attorneys had actually known about Rasch prior to trial. He has also alleged that the prosecutors were aware that Rasch was accompanied by another person who was a percipient witness to the incident. Invoking Brady v. Maryland, 373 U.S. 83 (1963) and state decisional law, the defendant accused the state of intentionally concealing this information and contended that those nondisclosures have earned him a new trial.

         In his pleadings before the Supreme Court, accompanied by affidavits of the appellate attorneys who had spoken with Rasch, the defendant avowed that the state "deliberately suppressed and misstated the facts" (his emphasis) and "intentionally withheld and misrepresented" facts to support the admissibility of Rasch's 911 call. (Def.'s May 2, 2017 Supreme Ct. Suppl. Mem. at 1-2; Def.'s May 4, 2017 Supreme Ct. Reply at 1.)[1] The defendant specified that "the state withheld the following critical information from the defense concerning that 911 call":

1. "The identity of the 'anonymous' 911 caller - now known to the defense as Chase Rasch, a student at Providence College - who reported the purported license plate of the shooter's vehicle;
2. "That Chase Rasch spoke to police at the scene immediately after the shooting and provided police with his name and contact information;
3. "That one of the trial prosecutors spoke with Chase Rasch before trial, in the summer of 2015, by calling him on the same cell phone number that placed the 911 call; and
4. "That after speaking with Chase Rasch, the state decided not to call Mr. Rasch as a witness, list him in discovery, or disclose his identity to the defense." (Def.'s Apr. 28, 2017 Supreme Ct. Mem. in Supp. of Mot. to Remand at 2; Def.'s May 2, 2017 Supplement at 1).

         On May 15, 2017, over the state's objection, the defendant secured from the Supreme Court an order remanding the case and directing the Superior Court to conduct a hearing within ninety days to "decide the defendant's Brady-related motion for new trial" (hereafter referred to as the "Remand Order" and the "Remand Hearing"). On Monday, June 19, 2017, this Court commenced and concluded the hearing. Witnesses included the three lawyers who conducted the trial: Special Assistant Attorneys General Joseph McBurney and his co-counsel Peter Roklan; the defendant's trial counsel, Assistant Public Defender Sarah Potter; and Stephen Rasch, the 911 caller whom the defendant learned of in March of this year.

         Exhibits which were submitted to the Court by agreement included all of the 2015 Superior Court pretrial and trial transcripts, as well as transcripts of Rasch's 911 call, the March 24, 2017 interview of Rasch by the defendant's private investigator Edward Pelletier, the May 1 and May 2, 2017 interviews of Rasch by Providence Police Det. Angelo A'Vant (accompanied by Det. Jonathan Primiano on May 1), copies of November 24, 2014 text messages between Rasch and his "Uber driver" friend, Alberto Bautista, and an ATT telephone record of the Attorney General. Audio c.d.'s of the 911 call and of the interviews were also submitted. After the hearing, the Court took the matter under advisement, pending a written ruling.[2]

         I. Motion to Recuse

         At the outset, this Court is obliged to address the defendant's recusal motion, which he filed four days after the Remand Hearing had already been completed. The defendant proposes disqualification because Mr. McBurney was once teamed with Allison Krause (this Court's daughter who, like Mr. McBurney, is also a Special Assistant Attorney General) to assist in the prosecution of an unrelated case in another courtroom. In essence, the defendant suggests that a rational observer would conclude that this Court would accord extra weight to Mr. McBurney's credibility versus that of Ms. Potter purely because Mr. McBurney and Allison Krause were simply doing their assigned jobs: jointly pursuing an entirely unrelated matter, with completely different facts and allegations, before a different judge, regarding an unconnected case which was informed long before the Supreme Court ever saw Willie Washington's remand motion. Conspicuously, that joint prosecution which the defendant tenders as key support for his recusal motion was, in the end, never even contested. It was resolved by a nolo contendere plea in another courtroom before Washington ever launched his argument at the recusal hearing. Indeed, Mr. McBurney was not even present in that courtroom for that disposition.[3]

         The defendant, through present counsel, Michelle Alves, a senior Assistant Public Defender, has admitted that the motion is not one which would support a claim of actual prejudice or favoritism. At the June 26, 2017 hearing on the motion, Ms. Alves, and perforce her client, admitted that the recusal claim is "not one of actual bias or actual failure to be impartial." (Recusal Hearing Tr. 5.)[4] Instead, the defendant asserts that circumstances exist which would cause "reasonable [] members of the public or a litigant or counsel to question the trial justice's impartiality." State v. Clark, 423 A.2d 1151, 1158 (R.I. 1980). He is mistaken.

         Most importantly, and entirely dispositive of his motion, is the defendant's considerable misjudgment as to whose credibility is really in the balance. It is not at all a credibility contest between Mr. McBurney and Ms. Potter. Rather, it is a question of whether Stephen Rasch's testimony can withstand scrutiny. The success or failure of the defendant's new trial motion is essentially riding on Rasch, not McBurney or Potter. Rasch is the central witness of the Remand Hearing, and it is his credibility which is at stake. After all, if the Court finds that Rasch never offered any Brady information to Roklan, the defendant's motion is valueless ab initio.

         As discussed, infra, it is entirely unnecessary for this Court to weigh what the three attorneys said to each other. To the extent that there need be a paired credibility appraisal at all, it is between Roklan and Rasch. From its front row observation post, this Court easily finds that Rasch fares very badly on his own scale and is acutely deficient on a scale with Roklan.

         It is axiomatic that trial judges should recuse themselves if they are unable to render a fair or impartial decision, Mattatall v. State, 947 A.2d 896, 902 (R.I. 2008). It is "an equally well-recognized principle that a trial justice has as great an obligation not to disqualify himself or herself when there is no sound reason to do so." Kelly v. RIPTA, 740 A.2d 1243, 1246 (R.I. 1999) (citing State v. Clark, 423 A.2d at 1158). The proponent of a recusal motion shoulders a "substantial burden" to prove the existence of judicial bias. In re Jermaine H., 9 A.3d 1227, 1230 (R.I. 2010). The defendant has failed to carry his burden by the widest of margins.

* * *

         So that the record is not incomplete, other fatal shortcomings of the defendant's partiality motion invite exposure.

         He also fails to recognize that the test for recusal extends far beyond Clark's three-part evaluation. The Rhode Island Supreme Court has erected an additional barrier to a partiality motion. "The party seeking recusal bears the burden of establishing that the judicial officer possesses a personal bias or prejudice by reason of a preconceived or settled opinion of a character calculated to impair his or her impartiality seriously and to sway his or her judgment." State v. Howard, 23 A.3d 1133, 1136 (R.I. 2011) (internal quotations and brackets omitted). Indeed, the United States Supreme Court has decreed that the moving party must demonstrate that the court's purported impartiality is "so extreme as to display clear inability to render fair judgment." Liteky v. United States, 510 U.S. 540, 551 (1994); see United States v. Howard, 218 F.3d 556, 566 (6th Cir. 2000). The defendant has not only completely failed to make any such showing, he has openly admitted that his recusal motion does not even include such reproaches.

         Additionally, ill-timed recusal motions, such as this one, "result in increased instances of wasted judicial time . . . and a heightened risk that litigants would use recusal motions for strategic purposes . . ." Preston v. United States, 923 F.2d 731, 733 (9th Cir. 1991) (citation omitted); In re Medrano Diaz, 182 B.R. 654, 658 (D.P.R. 1995) ("Such delay in taking action surely results in a waste of judicial resources and can only be seen as [an] attempt to take a second bite of the proverbial apple, that is, to manipulate the judiciary in order to avoid the consequences of an adverse judgment.").

         The defendant's stated excuse for filing this post-hearing recusal motion includes his professed surprise by Mr. McBurney's testimony. (Recusal Hearing Tr. 2-3.) That Mr. McBurney (or, for that matter, Mr. Roklan) would flatly deny withholding any Brady information could scarcely have been a revelation to the defendant. He knew full well, from the state's denial of his accusations and from its objection to his remand request in the Supreme Court, that the prosecutors would most assuredly challenge and contradict his claims of nondisclosure.

* * *

         The Remand Hearing has been concluded, but the defendant is demanding a full reprise of all the witnesses and is shopping for a different judge, not because of any actual bias or predisposition on the part of this Court (which he and his attorney have acknowledged do not support the partiality motion), but because of purely mistaken conjecture. Like Mr. Justice Breyer's unicorn, the defendant's recusal motion finds its home in the imagination, not in the courtroom. Henderson v. United States, 133 S.Ct. 1121, 1129 (2013).

         The defendant's recusal motion is denied.

         II. Motion for a New Trial

         Brady, et al.

         Quite apart from its discovery obligations pursuant to Rule 16 of the Rhode Island Superior Court Rules of Criminal Procedure, the state's pretrial disclosure responsibilities also have constitutional dimensions which have been addressed in Brady and countless other decisions by the United States and Rhode Island Supreme Courts. Cases such as Tempest v. State, 141 A.3d 677 (R.I. 2016), State v. Wyche, 518 A.2d 907 (R.I. 1986), Turner v. United States, ___ U.S. ___ (No. 15-1503, June 22, 2017), and myriad others address a prosecutor's obligation to disclose exculpatory information, and they prescribe tests to determine whether or not a failure to do so was intentional and the consequences to be assessed for deliberate nondisclosure. The rules themselves are not particularly complex; it is the Brady examination itself which is "fact intensive." Turner, slip op. at 2. What is gleaned from Brady and its progeny, in nutshell fashion, are the following principles:

• The Brady decision holds that if the prosecution has suppressed evidence that would be favorable to the accused, and that evidence is material to guilt or punishment, the defendant is entitled to a new trial. Tempest 141 A.3d at 682.
• Rhode Island law extends Brady: When the failure to disclose is "deliberate, " the degree of harm to the defendant is not considered, and a new trial will automatically be granted. Tempest 141 A.3d at 682.
• The prosecution acts "deliberately" (1) when it makes a considered decision to suppress for the purpose of obstructing, or (2) where it fails to disclose evidence whose high value to the defense could not have escaped its attention. Tempest 141 A.3d at 683.
• Impeachment evidence (even if it appears facially inculpatory), as well as exculpatory evidence, falls within the disclosure rules. United States v. Bagley, 473 U.S. 667, 676 (1985).
• If the nondisclosure is not deliberate, the defendant is not entitled to a new trial unless he demonstrates that the undisclosed evidence is "material." Bagley, 473 U.S. at 682; see DeCiantis v. State, 24 A.3d 557, 571 (R.I. 2011).
• Material evidence, either in the nature of exculpatory or impeachment evidence (unless the latter is merely cumulative), must be sufficiently central to the criminal case. State v. Briggs, 886 A.2d 735, 755 n.8 (R.I. 2005).
• Evidence is "material" if there is "a reasonable probability" that, had it been disclosed, "the result of the proceeding would have been different." Lerner v. Moran, 542 A.2d 1089, 1091 (R.I. 1988); Bagley, 473 U.S. at 682; State v. ...

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