Opinion
No. 104328.
September 27, 1996.
Leave to Appeal Denied September 27, 1996:
Court of Appeals No. 127436.
I would grant leave to appeal.
Hamblin was convicted by a jury of three counts of third degree criminal sexual conduct. Hamblin called the complainant's father to testify to the complainant's reputation for truthfulness. After the defense lawyer examined this witness, the prosecutor conducted cross-examination. The prosecutor sought to bring out the lack of recent contact between the twenty-four-year-old complainant and her father. During this questioning, the prosecutor asked the witness:
Q. . . . And when she left the home, sir, did you support her or [your ex-wife]?A. Support them in what, what do you mean?
Q. Child support payments, anything like that?
A. Yeah. At that point in time, sure.
Q. Pardon me?
A. Yes. I didn't support her, I paid child support.
Q. For her?
A. Until she was about seventeen.
After both lawyers completed their examinations of this witness, the trial judge began asking the witness questions.
The Court: . . . [Y]ou had indicated on prior testimony that you loved [your daughter, the complainant] and that you paid support; is that correct?
Mr. Taylor: I'm sorry, I couldn't hear that question.
The Court. I'm sorry. I said you had indicated on prior testimony that you loved [your daughter] and that you always paid your support?
The Witness. I paid the support until I — other than when I was in the hospital and disabled, that sort of thing.
The Court. I see. And when were you in the hospital and disabled?
The Witness. I was in the hospital, but the — where [the children] were concerned, in `74, in very serious condition for some time. I was in and out of the hospital for like six months with parietitis.
The Court. Was that before or after your judgment of divorce?The Witness. From [his ex-wife]? That was after.
The Court. That was after the judgment?
The Witness. That was in `74, our judgment was in ...
The Court. Did you receive a copy of your judgment of divorce in that case?The Witness. I'm sure I must have, yes.
The Court. Would it refresh your recollection if the Court showed you a copy of the judgment of divorce?
The Witness. I remember seeing it. Now, I had to pay so much, as long as . . .
The Court. Do you remember you were supposed to pay for the support of all your children in the amount of $22.50 a week?The Witness. Sounds logical.
The Court. And did you have any arrears on your child support at the time you were divorced?The Witness. Yes.
The Court. And do you remember what that amount was?The Witness. About $1,600.
The Court. $1,685?
The Witness. Yeah. That's because I was not working, yeah. And I went to court on that. But I was paying that off until I got sick.
I was paying on the arrearage, and the judge had told me to pay so much, I think it was. I don't remember what the amount was, but he said keep paying like I was because I was paying on the arrearage.
Mr. Taylor: I don't think it's relevant in any event, Your Honor. This witness isn't on trial.Mr. Cooke: I think it is relevant.
The Court: It's only relevant from the standpoint he testified he loved his daughter and always paid his support.
The Witness: When I was not disabled, I did pay my support.
The Court. Is it true that you owe support even at this late date?
The Witness. That I owe any support? Yes. I was disabled from `83 to `88. I owe about seven hundred dollars on that.The Court. And when did you last pay on that?
The Witness. Probably, I don't know. I think the last payment was they withheld my income tax a few years ago, just after — it had my disability they sent me. And this, by the way, is going to court shortly, next week.
The Court. In fact, you're supposed to appear in front of Judge Schaefer on May 16th? The Witness. Monday, yes.
The Court. To show cause why you have not paid the support?
The Witness. Right. I've been in the lower — I don't know what they call, referee. I was in there twice before my operation, then I finally got use of my left arm back.
The Court. And you applied for Social Security disability?The Witness. Yes, I did.
The Court. Was that granted?
The Witness. No, it wasn't. [Emphasis added.]
The trial judge thus attempted to impeach the witness' testimony about always paying child support even though the witness never made such a statement during the prosecutor's cross-examination. When asked by the trial judge if he always paid support, the witness answered truthfully that he had not paid while disabled. Nonetheless, the trial judge continued questioning the witness about his child support payments, demonstrating a knowledge of the witness' affairs that only could have been gained by independent investigation before the witness' testimony that day. The judge not only knew the witness was behind in child support payments, a fact he might have picked up in casual conversation with the judge in charge of the support hearing, but he had a copy of the witness' divorce papers from the early 1970's, knew his child support obligations to the penny, and knew the exact dollar amount of his arrearage. This questioning, in the presence of the jury, even extended to eliciting information that Social Security had denied the witness' disability claim.
As the judge stated when the defense lawyer objected, this questioning would only be relevant to impeach the witness' statement that he "always paid his support." The witness never made such a claim, only the trial judge. This impeachment thus would have been improper if it had been attempted by the prosecutor; the trial judge, with his extensive preparation for this witness and his refusal to accept Hamblin's answer to the questions put before him, were even more improper. The questions demonstrated to the jury the judge's disbelief in this defense witness and, by natural implication (even if not intended), in Hamblin himself.
The judge improperly injected himself into Hamblin's trial in his quest to undermine this witness' credibility. It is imperative a judge maintain the image of impartial arbiter, particularly before a jury that is encouraged to trust the judge as a fair overseer of the trial. When bias became evident, Hamblin's right to a fair trial was eviscerated. Because of the importance of a fair and neutral judge in any trial, particularly a criminal trial, such error was not harmless. The trial judge's conduct, whether well-intentioned or not, improperly suggested to the jury that the judge thought a particular verdict was in order. Such conduct is fortunately rare, but when it occurs, a defendant's right to a fair trial and due process of law has been infringed.