The State appeals an order of the trial court vacating the conviction of the defendant, Myron Potter. The State argues that because he failed to appear at his superior court trial in 1990, the defendant waived all appellate rights and any right to collaterally attack his original conviction. We reverse and remand.
In 1988, the defendant was charged with one count of criminal threatening and one count of criminal trespass. In 1990, he filed a motion to recuse the presiding judge on the ground that the judge's former law firm had represented the defendant's wife in their divorce proceedings while the judge was a member of the firm; the motion was denied. The defendant concedes that the trial judge became a full-time judge in 1988. The defendant was convicted in 1990 in the district court on the charged offenses. He appealed to the superior court for a trial de novo but failed to appear for his scheduled trial. He was defaulted and the case was remanded to the district court for imposition of the original sentence.
In 2007, the defendant filed a motion to vacate his convictions, arguing again that because the trial judge's firm had represented the defendant's ex-wife in their divorce proceedings, he was deprived of his right to trial by an impartial judge. He conceded at the 2007 hearing on his motion that he did not file a motion to reconsider or appeal to this court in 1990 because "the issue was going to be moot as soon as it went up to Superior Court, when he gets a new Judge." In its order granting the defendant's 2007 motion, the trial court stated: "Although the court finds no actual knowledge on the Part of [the original trial judge] in regard to information from the prior divorce and/or contempt proceedings involving the Defendant, erring on the side of caution the Motion to Vacate is granted."
The State appealed, arguing that the defendant waived all appellate rights and any right to collaterally attack his convictions when he failed to appear for trial and became a fugitive. The defendant argues that his convictions were structurally flawed; therefore, his collateral challenge based upon structural defects should be exempt from the procedural waiver rule. See Avery v. Cunningham, 131 N.H. 138, 143 (1988).
We address first whether the trial court's denial of his motion to recuse created a structural error in the defendant's 1990 trial. A structural defect affects the very framework in which a trial proceeds. State v. Ayer, 150 N.H. 14, 24 (2003). Such defects arise from errors that deprive a criminal defendant of the constitutional safeguards providing a fair trial; if the trial proceeds after such an error occurs, "'justice will not still be done.'" Id. (quoting Johnson v. Zerbst, 304 U.S. 458, 462 (1938).
The Code of Judicial Conduct requires disqualification of a judge in a proceeding in which the judge's impartiality might reasonably be questioned and to avoid even the appearance of impropriety. State v. Ayer, 150 N.H. at 35. Under current New Hampshire law, the test for evaluating whether a court erred in refusing to disqualify itself based upon its alleged partiality is the same under the New Hampshire Constitution, the Code of Judicial Conduct and general principles of due process. Id. Whether an appearance of impropriety exists is determined under an objective standard, i.e., would a reasonable person, not the judge himself, question the impartiality of the court. Id.
The defendant concedes that he cannot establish that there was actual prejudice. While the Supreme Court has held that presumptive bias may require recusal under the Due Process Clause, it has only recognized presumptive bias in three situations: "(1) when the judge has a direct personal, substantial, and pecuniary interest in the outcome of the case, (2) when he has been the target of personal abuse or criticism from the party before him, and (3) when he has the dual role of investigating and adjudicating disputes and complaints." Richardson v. Quarterman, 537 F.3d 466, 475 (5th Cir. 2008) (quotations omitted). The trial court found "no actual knowledge on the Part of [the original trial judge] in regard to information from the prior divorce and/or contempt proceedings involving the Defendant." In the absence of these three factors, we cannot conclude that the very framework of the 1990 district court trial was affected by the participation of the trial judge. Accordingly, we find no structural error.
We turn then to whether the defendant waived his right to collaterally attack his district court convictions when he failed to appear for his
de novo trial in superior court. We have held that procedural defaults may preclude later collateral review, unless the issue falls within a narrow exception to the rule of procedural waiver. See Sleeper v. Warden, N.H. State Prison, 155 N.H. 160, 163 (2007). In the federal courts, the exception requires the defendant to demonstrate either cause and actual prejudice or that he is actually innocent. Id. Even if we assume without deciding that the exceptions applicable to the procedural waiver rule apply with equal force to the fugitive rule, see State v. Patten, 134 N.H. 319 (1991), the defendant concedes on appeal that he cannot establish that there was cause and actual prejudice or that he was actually innocent. Accordingly, he has failed to establish that he is entitled to review under these narrow exceptions. Based upon the foregoing, the district court's order is reversed.
Reversed and remanded.
DALIANIS, DUGGAN and HICKS, JJ., ...