Opinion
No. 36534-1-II.
April 7, 2009.
Appeal from a judgment of the Superior Court for Lewis County, No. 04-1-00043-7, Nelson E. Hunt, J., entered June 11, 2007.
Reversed and remanded by unpublished opinion per Van Deren, C.J., concurred in by Quinn-Brintnall, J.; Penoyar, J., concurring in the result only.
Kenneth Lane Slert appeals his second conviction for second degree murder following our reversal of his first conviction and remand for a new trial. He argues that he is entitled to a new trial because (1) the trial judge should have recused after articulating and exhibiting actual bias, (2) the jury instructions improperly deprived him of his self-defense claim, failed to inform the jury that residential burglary is a felony offense, and the "to convict" instructions lacked an essential element and violated his due process rights, and (3) his counsel provided ineffective assistance. We again reverse his conviction and remand for a new trial.
FACTS
Slert shot and killed John Benson on October 23, 2000, at a Lewis County campground. Slert was convicted of second degree murder in 2004. We reversed that conviction and remanded for a new trial, holding that "the trial court committed reversible error in rejecting Slert's proposed instruction on justifiable homicide in resistance of a felony (residential burglary)." State v. Slert, noted at 128 Wn. App. 1069 2005 WL 1870661, at *4.
Before his second trial, Slert moved to suppress the testimony of former Lewis County Sheriff John McCroskey about his conversation with Slert during "the two-and-a-half-hour trip from the site of the tent to the jail." Report of Proceedings (RP) (April 25, 2007) at 25. He claimed that "former Sheriff McCroskey . . . illegally tape-recorded [a] conversation with [Slert] in violation of the privacy act." Br. of Appellant at 14. Slert also moved to suppress certain statements he made to former Lewis County Deputy Sheriff Kurt Wetzold by telephone without the presence of counsel.
During the suppression hearing, McCroskey testified that he could not have taped the conversations with Slert because the police audiotape recorders were unreliable, an audiotape recorder in the front seat would not have picked up Slert's voice from the back seat, and each audiotape is only 30 minutes long on each side and the drive was over two hours long. The State also submitted an affidavit by Jeremy Randolph, the former Lewis County Prosecuting Attorney, stating that there was no discussion of any recordings when preparing the case in his office. Contrary to McCroskey and Randolph's statements, David Arcuri, the former chief criminal deputy prosecuting attorney under Jeremy Randolph, testified that he remembered a meeting with Randolph and McCroskey in which McCroskey mentioned recording a statement by Slert. Arcuri stated that the three men discussed McCroskey's conversation with Slert in his vehicle during transport to the jail. During that conversation, "the sheriff volunteered that[, ']Well, these are all on tape.['] I was stunned, and I first said, [']Well, you got these on audiotape?['] And he goes, [']Yeah, I had my cassette recorder that I carry with me right there in the car.[']" RP (April 25, 2007) at 69.
The trial judge acknowledged that
"[t]his is one of those things where I think judges usually recuse themselves, and I would have done it if there had been any way that I could have. . . . I have known all three of the players for a long time. Sheriff, then Deputy McCroskey . . . was the investigating officer on I think the second or third case that I worked on after I got here in 1979, and I worked with him extensively in many trials. It was impossible then for me not to form an opinion as to whether I thought [McCroskey] was a credible person."
RP (May 7, 2007) at 108. He noted similar familiarity with Randolph and Arcuri.
He continued:
Having said all of that . . . if I had known in time where there would have been another person available or another judge available to deal with this issue I would have handed it off to them because this is one of those things that makes me very uncomfortable and is very difficult to do. . . . [T]he reason I am denying the motion to suppress is that I cannot imagine the circumstances under which Mr. Randolph and now Mr. McCroskey would deliberately violate the privacy rights of Mr. Slert, particularly in the way that it's being alleged here.
RP (May 7, 2007) at 109. The trial court did grant Slert's motion to suppress certain telephone statements made to Wetzold.
At trial, Mount Rainier National Park Ranger Uwe Nehring testified that, on the morning of October 24, 2000, he observed a Volkswagen beetle driving "at a fairly fast rate" down Skate Creek Road. Slert stopped when he saw Nehring and told the ranger that "[h]e had just shot and killed someone." RP (May 7, 2007) at 154. Nehring asked Slert where the weapons were located and Slert indicated that they were in his vehicle. Nehring then asked Slert to "keep his hands where [Nehring could] see them" and walked to the passenger side of the car and removed three guns. RP (May 7, 2007) at 155. Slert told Nehring that he had shot the man the night before but that he had been too drunk to drive. He and the victim had been drinking, got into an argument, and he shot the man because he felt in danger.
Lewis County Deputy Sheriff Susan Shannon testified that she responded to Nehring's call for backup and arrived at Skate Creek Road at 11:08 am. Nehring told her that Slert had been taken to the crime scene by two rangers and Shannon proceeded to the campsite. She testified that Slert's campsite consisted of a lean-to tent made of two tarps. A red pickup truck was parked next to the tent.
At the campsite, Slert told Shannon that, on October 23, a man who was then unknown to him entered his campsite in a red pickup truck at approximately 6:00 or 6:30 pm. "[Slert] told [her] that he got into the pickup truck and that [he and the man] shared several drinks or shots of whiskey. He then stated that the man in the truck began to speak about anti-government matters, and at that point . . . Slert punched the man later identified as Mr. Benson in the nose twice." RP (May 7, 2007) at 180.
Wetzold testified that he arrived at the scene at approximately 1:36 pm. He observed Slert with a "heavy concentration of red material that appeared to be blood on the right knee as well as additional . . . red smears, [that] again appeared to be blood, on both thighs, upper thighs, and then a spot of blood on the back of his pants in the calf area." RP (May 8, 2007) at 338. Slert told Wetzold that, after he punched Benson in the face, he got out of the truck and walked away. Benson followed him and "began to maul him like a bear." RP (May 8, 2007) at 345. Slert got away and began walking to his tent when "Mr. Benson approached him from the rear at the entrance to the tent and began to choke him." RP (May 8, 2007) at 346. "Mr. Slert indicated . . . that he was able to break free and go down inside of his tent, retrieve a gun from the closed case, and that from a laying position . . . [h]e turned and fired toward the entrance to the tent." RP (May 8, 2007) at 346. Slert then "[s]tepped over Benson and fired a round into his head . . . [b]ecause he was still moving." RP (May 8, 2007) at 349.
McCroskey testified that he arrived at the scene at about 1:30 pm and provided support to the deputy and others processing the scene. McCroskey left the scene at approximately 3:30 pm to drive Slert to the jail. During the drive, Slert said that "he took antidepressants, and I asked him if he should mix antidepressants with alcohol, and he said probably not but he didn't think it affected him." "[Slert] said when he shot Mr. Benson he dropped right away and was as [the deputies] found him. And then later he said he had to shoot him a second time because he kept coming." "[Slert] said after the fact he didn't go for help and thought [Benson] was dead and then debated on what to do, didn't know whether he should hold [law enforcement] off." RP (May 8, 2007) at 215. He thought about suicide, and in the end what he said was that he thought that the only choice he had was to turn himself in." RP (May 8, 2007) at 216.
The State also called a jailhouse informant, Douglas Schwenk, to testify. Schwenk spoke to Slert about the October 23 incident while both men were in jail and Slert told him that he had punched Benson in the face after Benson made a sexual pass at him. He knocked Benson's glasses off and that he knew Benson could not see without his glasses. Slert told him that Benson had not been armed and that Benson had not been threatening him but, rather, that Benson was trying to get away. Schwenk told the jury that he had not "entered into any deals with the [S]tate, that is, the prosecutor's office, for leniency regarding the offenses for which [he had] been charged." RP (May 8, 2007) at 296.
Slert was convicted of second degree murder. He was sentenced to 280 months incarceration. He appeals.
ANALYSIS
Slert argues that the trial judge's actual bias violated the appearance of fairness doctrine, thereby, depriving him of a fair trial. He further argues that two jury instructions were improper and that the "to convict" instruction failed to include an essential element of the crime of second degree murder. He also argues that his counsel was ineffective. In his statement of additional grounds for review (SAG), he argues that the State engaged in prosecutorial misconduct.
RAP 10.10.
I. Recusal Mandated
Slert argues that "[t]he trial judge violated the appearance of fairness doctrine by hearing and deciding a critical issue despite acknowledging bias." Br. of Appellant at 12 (emphasis omitted). He argues that the trial judge acknowledged his bias in favor of the State's position during the suppression hearing involving McCroskey and Randolph when he said, "judges usually recuse themselves" in similar cases. Br. of Appellant at 14 (quoting RP (May 7, 2008) at 108).
A. Violation of Appearance of Fairness
Criminal defendants have a due process right to a fair trial by an impartial judge. U.S. CONST. amends. VI, XIV; Wash. Const. art. I, § 22. "Impartial" means the absence of bias, either actual or apparent. State v. Moreno, 147 Wn.2d 500, 507, 58 P.3d 265 (2002). "The law goes Page 7 farther than requiring an impartial judge; it also requires that the judge appear to be impartial." State v. Madry, 8 Wn. App. 61, 70, 504 P.2d 1156 (1972). When "a claimant presents sufficient evidence of potential bias, we consider whether the appearance of fairness doctrine was violated." In re Marriage of Wallace, 111 Wn. App. 697, 706, 45 P.3d 1131 (2002). "The test is whether a reasonably prudent and disinterested observer would conclude [that the claimant] obtained a fair, impartial, and neutral trial." State v. Dominguez, 81 Wn. App. 325, 330, 914 P.2d 141 (1996).
"Judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned." This includes "instances in which: . . . (a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." CJC 3(D)(1).
Initially, we note that the trial judge himself acknowledged that he should recuse on this case. We agree. While mere knowledge of or acquaintance with witnesses is not enough to show actual or potential bias, here, the trial judge articulated his actual prejudice in favor of the State when he stated that his earlier acquaintance with McCroskey, Randolph, and Arcuri formed the basis of his opinion about their credibility. Furthermore, he stated, "[T]he reason I am denying the motion to suppress is that I cannot imagine the circumstances under which Mr. Randolph and now Mr. McCroskey would deliberately violate the privacy rights of Mr. Slert, particularly in the way that it's being alleged here." RP (May 7, 2007) at 109.
We base our decision on this clear evidence of actual bias. The trial judge stated that he should recuse from the case and also expressed that his opinion of McCroskey and Randolph's credibility was based on his prior knowledge, rather than on the evidence adduced during the suppression hearing. Furthermore, he relied on his preformed opinion of credibility in denying Slert's suppression motion.
A reasonably prudent, disinterested person would not believe that the trial court's decision to deny Slert's motion, which turned on contested evidence and the credibility of the witnesses, resulted solely from a disinterested judicial officer's conclusions reached after hearing and weighing only the evidence at the hearing.
Furthermore, the trial judge's demonstrated bias cannot be harmless error. The United States Supreme Court has held that "there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error," and it included among them the right to an impartial judge. Chapman v. California, 386 U.S. 18, 23 n. 8, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).
Although we vacate his conviction and remand for a new trial before a different judge, we address Slert's other claims of error which may otherwise arise on remand.
II. Jury Instructions
Slert also argues that the trial court erred in giving certain jury instructions because they eroded or confused his justifiable homicide defense. First, he argues that the voluntary intoxication instruction addressing Benson's intoxication, instead of his own intoxication, vitiated Slert's justifiable homicide defense. Second, he argues that the trial court should have instructed the jury that residential burglary is a felony. Finally, he argues that the words "but without premeditation" were improperly removed from the definition of second degree murder under RCW 9A.32.050.
The State argues that because there was "overwhelming evidence of guilt," any error caused by the jury instructions was harmless. Br. of Resp't at 9. On this record, we disagree. The State also argues that the instruction regarding Benson's intoxication was proper because it addressed issues related to the special verdict form. The special verdict form apparently asked the jury to decide whether Benson was particularly vulnerable but the verdict forms were not included in the record on appeal. The State notes that Slert did not object to the jury instructions below but also acknowledges that "[a] jury instruction misstating the law of self-defense amounts to an error of constitutional magnitude and is presumed prejudicial." State v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996). "[M]anifest error[s] affecting a constitutional right" may be raised for the first time on appeal. RAP 2.5(a)(3). Finally, the State argues that the instructions on justifiable homicide were proper because they were proposed by Slert and they "modeled the [Washington Pattern Jury Instructions] almost word-for-word." Br. of Resp't at 14.
Slert based his justifiable homicide defense on his belief that Benson was about to feloniously assault him or commit residential burglary. He alleged that Benson was about to commit residential burglary by entering his tent. At trial, Slert argued that "if the slayer reasonably believed that the person slain . . . intended to commit a felony on him or in his presence or in his dwelling or to inflict death or great personal injury . . . then the killing, the homicide is justified because there is self defense." RP (May 11, 2007) at 780. His counsel did not explain to the jury, nor did the trial court instruct the jury, that a tent can be considered a dwelling nor did they explain that residential burglary is a felony.
Slert may have presented the theory that he believed Benson would commit residential burglary, which is a felony, during his opening statement. Because appellate counsel did not request transcription of the opening statements under RAP 9.2(b), there is no record before us showing that Slert's counsel stated this theory of the case to the jury at any time.
A. Standard of Review
We review a challenged jury instruction de novo, evaluating it in the context of the instructions as a whole. State v. Brett, 126 Wn.2d 136, 171, 892 P.2d 29 (1995). We uphold jury instructions "if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law." State v. Irons, 101 Wn. App. 544, 549, 4 P.3d 174 (2000). There is a heightened standard of review for self-defense instructions, "Jury instructions must more than adequately convey the law of self-defense." "A jury instruction misstating the law of self-defense amounts to an error of constitutional magnitude and is presumed prejudicial." State v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996).
Because prejudice is presumed when an instruction misstates the law, "a defendant is entitled to a new trial unless the error can be declared harmless beyond a reasonable doubt." State v. Woods, 138 Wn. App. 191, 202, 156 P.3d 309 (2007). To show harmless error, the State must prove that "[f]rom the record, it . . . appear[s] beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." State v. Brown, 147 Wn.2d 330, 344, 58 P.3d 889 (2002).
B. Justifiable Homicide Instructions
RCW 9A.16.050 states that a person is justified in committing homicide when it is
committed either (1) [i]n the lawful defense of the slayer . . . when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer . . . and there is imminent danger of such design being accomplished; or (2) [i]n the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon or in a dwelling, or other place of abode, in which he is.
"Once a defendant produces some evidence of self-defense, the burden shifts to the prosecution to prove the absence of self-defense beyond a reasonable doubt." Woods, 138 Wn. App. at 199. The lack of self-defense, therefore, "becomes another element of the offense, which the State must prove beyond a reasonable doubt." Woods, 138 Wn. App. at 198. "A jury may find self-defense on the basis of the defendant's subjective, reasonable belief of imminent harm from the victim." LeFaber, 128 Wn.2d at 899. The jury need not find actual imminent harm. LeFaber, 128 Wn.2d at 899.
1. Voluntary Intoxication Instruction
Slert argues that the trial court's voluntary intoxication instruction regarding Benson's intoxication "deprive[d] [him] of his justifiable homicide defense." Br. of Appellant at 18. Slert proposed an instruction that read:
No act committed by a person while in a state of voluntary intoxication is less criminal by reason of that condition. However, evidence of intoxication may be considered in determining whether the defendant acted with intent. Clerk's Papers (CP) at 69 (emphasis added).
Instead, the trial court gave instruction 22, which states:
No act allegedly committed by Mr. Benson while in a state of voluntary intoxication is less criminal by reason of that condition." However, evidence of intoxication may be considered in determining whether Mr. Benson acted with intent."
In the second instance where Benson's name appears in instruction 22, the instruction originally stated "whether the defendant acted with intent," but "the defendant" was crossed out and replaced in handwriting with "Mr. Benson." CP at 46 (emphasis added). All discussion regarding this jury instruction was conducted off the record so the reason for including this instruction is unclear, as is the origin of the changes to Slert's proposed instruction.
CP at 46 (emphasis added). Slert argues that "[i]f the jury decided that Benson was too intoxicated to form criminal intent, they could reasonably have interpreted the instructions as permitting them to disregard Mr. Slert's justifiable homicide claim, based on Benson's voluntary intoxication." Br. of Appellant at 18.
"[W]here . . . self-defense jury instructions are at issue, the [Washington Supreme Court] has stated that the 'instructions, read as a whole, must make the relevant legal standard manifestly apparent to the average juror.'" Irons, 101 Wn. App. at 550 (quoting LeFaber, 128 Wn.2d at 900). The Court has further stated that "[t]he standard for clarity in a jury instruction is higher than for a statute" because juries do not have the same interpretive tools as judges and "thus require[] a manifestly clear instruction." LeFaber, 128 Wn.2d at 902.
Slert is correct that "[t]he slain person's actual mental state is irrelevant" when determining whether the homicide was justified. Br. of Appellant at 18. Rather, the jury instruction should have focused the jury on Slert's subjective belief that Benson had the intent to inflict harm on Slert or to commit a felony against him. "A finding of actual imminent harm [by the decedent] is unnecessary" to find the homicide justifiable. LeFaber, 128 Wn.2d at 899.
Instruction 22 clearly misstates the law and vitiates Slert's justifiable homicide defense by shifting the jury's consideration to Benson's actual intent as affected by his intoxication instead of Slert's subjective belief that Benson was going to inflict harm or commit a felony. It is, therefore, "an error of constitutional magnitude, and is presumed prejudicial." LeFaber, 128 Wn.2d at 900. Furthermore, the evidence was not so overwhelming that Slert did not subjectively believe that Benson was going to commit a felony against him that the error is harmless.
Even if the purpose of the instruction was to inform the jury regarding a special verdict, this instruction was improper. As written, the instruction can only be interpreted as a possible exception to Slert's justifiable homicide defense. To the extent a special verdict form referred to Mr. Benson as "the victim" instead of "the decedent," it also undermines Slert's justifiable homicide defense. The proper manner in which to introduce evidence of a victim's intoxication to determine the victim's vulnerability is to bifurcate the guilt phase of the trial from the sentencing phase.
Because jury instruction 22 erroneously instructed the jury on Slert's justifiable homicide defense, Slert's conviction is vacated and the case remanded for a new trial.
2. Lack of Instruction that Residential Burglary Is a Felony
Jury instruction number 11 states that
[h]omicide is justifiable when committed in the lawful defense of the slayer when: (1) [t]he slayer reasonably believed that the person slain intended to commit a felony upon the slayer, in his presence, or upon or in a dwelling, or other place of abode in which he is, or to inflict death or great personal injury.
CP at 34. Instruction number 17 states that "[a] person commits the crime of residential burglary when he or she enters or remains unlawfully in a dwelling with intent to commit a crime against a person or property therein." CP at 41. None of the jury instructions define residential burglary as a felony nor do they instruct the jury that Slert's tent was legally considered a residence or other place of abode, as we decided in Slert's earlier appeal. Slert, 2005 WL 1870661, at *3-4.
Slert argues that "[t]o find Mr. Slert justified in using force to resist a felony, the jury was required to determine whether or not Benson's actions amounted to a felony." Because the jury was not instructed that residential burglary is a felony, "nothing in the instructions permitted the jury to acquit Mr. Slert." Br. of Appellant at 19. The State argues that the justifiable homicide instructions were proposed by Slert and that they "modeled the [Washington Practice Jury Instructions] almost word-for-word." Br. of Resp't at 14.
If a party fails to propose a desired jury instruction, that party "cannot predicate error on its omission." State v. Lucero, 140 Wn. App. 782, 787, 167 P.3d 1188 (2007) (quoting McGarvey v. City of Seattle, 62 Wn.2d 524, 533, 384 P.2d 127 (1963)). Slert did not propose an instruction defining residential burglary as a felony. In addition, Slert did not present the theory of residential burglary as the underlying felony justifying his self defense claim to the jury during trial.
We, therefore, hold that Slert waived the issue of whether the trial court erred in failing to instruct the jury that residential burglary is a felony and, thus, failed to preserve it for appeal. But we note that this does not preclude a valid claim for ineffective assistance of counsel. We discuss Slert's assertion of his ineffective assistance of counsel claim below.
C. "To Convict" Instructions
Slert next argues that the "to convict" instruction lacked an essential element of second degree murder and, therefore, violated his due process rights. He argues that the words "but without premeditation," as stated in RCW 9A.32.050(1)(a), were improperly removed from the definition of second degree murder.
Jury instruction 4, which defines second degree murder, includes the phrase "but without premeditation" in its definition of second degree murder.
In State v. Feeser, we considered whether a jury instruction was proper where it omitted "but without premeditation" from the definition of second degree murder. 138 Wn. App. 737, 740-44, 158 P.3d 616 (2007), review denied, 163 Wn.2d 1007 (2008). We noted that an "'essential element is one whose specification is necessary to establish the very illegality of the behavior' charged." Feeser, 138 Wn. App. at 743 (quoting State v. Johnson, 119 Wn.2d 143, 147, 829 P.2d 1078 (1992)). Because the phrase "but without premeditation" does not affect the illegality of the crime but, rather, "serves merely to distinguish second degree murder from first degree murder," we held that "the State need not prove the absence of premeditation in order to prove second degree murder beyond a reasonable doubt." Feeser, 138 Wn. App. at 744. Thus, we adhere to our decision in Feeser and this claim of error fails.
III. Ineffective Assistance of Counsel
Slert argues that his counsel was ineffective because his counsel failed to object to the instruction regarding Benson's intoxication and because his counsel failed to propose a jury instruction defining residential burglary as a felony.
For an appellant to prevail on a claim of ineffective assistance of counsel, he must show (1) that counsel's representation was deficient and (2) that the deficient representation prejudiced him. State v. Aho, 137 Wn.2d 736, 745, 975 P.2d 512 (1999). To meet the first part of the test, the representation must have fallen "below an objective standard of reasonableness based on consideration of all of the circumstances." This part is "highly deferential and courts will indulge in a strong presumption of reasonableness." State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). For the second part, there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), but the appellant "need not show that counsel's deficient conduct more likely than not altered the outcome in the case." 466 U.S. at 693. Here, the record is clear that Slert's counsel provided ineffective assistance and that, but for his counsel's failure to adequately represent him, the outcome of the trial with reasonable probability would have differed. First, the instruction regarding Benson's voluntary intoxication was clearly erroneous and vitiated Slert's justifiable homicide defense. There is no tactical reason for Slert's counsel's failure to object to the instruction. Second, defense counsel's failure to argue that Benson was committing the felony of residential burglary against Slert when he was shot and his failure to request a jury instruction defining residential burglary as a felony, even after we remanded for an instruction on residential burglary following Slert's first appeal, fell below an objective standard of reasonableness. There is no evidence in the record that these omissions were tactical or that they served Slert's justifiable homicide defense.
Jury instruction 22 eliminated the subjective element of justifiable homicide, making Benson's actual ability and intent to harm Slert the jury's primary consideration. Then defense counsel failed to properly explain Slert's defense to the jury, leaving Slert essentially without a defense. Under these circumstances, Slert was clearly prejudiced. Therefore, Slert is entitled to vacation of his conviction and remand for a new trial on this basis as well.
IV. Statement of Additional Grounds for Review
Slert filed a motion to withdraw his SAG following oral argument. We granted his motion, with the exception of the issue of prosecutorial misconduct based on comments by the prosecutor.
Because we reverse Slert's conviction on other grounds and remand for retrial, we do not address his SAG claims.
We vacate Slert's conviction and remand for a new trial before a different judge.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
QUINN-BRINTNALL, J., concur.
I respectfully concur in the result, but would decide this case based only on the improper jury instructions and ineffective counsel, not because the trial court appeared partial. Unique and pressing circumstances surrounded the recusal issue and the trial judge was obviously concerned that that issue be dealt with in a timely and appropriate manner. It therefore seems quite unlikely that the same issue will arise again on remand or in future cases. I see no need to address that issue where we reverse this case on other grounds and direct that Slert's new trial be conducted by a different judge, who should revisit the suppression issue now that the time constraints have been removed. I concur in the result.