State v. Esparza
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1 The State of Ohio, Appellee, v. Esparza, Appellant. 2 [Cite as State v. Esparza (1996), _____ Ohio St.3d _____.] 3 Criminal law -- Judge who rules on a Crim.R. 16(B)(1)(e) motion may 4 not conduct the trial -- Violation of rule not reversible error. 5 (No. 95-1330--Submitted December 12, 1995--Decided March 1, 6 1996.) 7 Appeal from the Court of Appeals for Lucas County, No. L-84-225. 8 Appellant, Gregory Esparza, was convicted of aggravated murder and 9 sentenced to death. The Court of Appeals for Lucas County affirmed his 10 conviction and sentence. State v. Esparza (Aug. 22, 1986), Lucas App. No. 11 L-84-225, unreported. This court affirmed the court of appeals judgment. 12 State v. Esparza (1988), 39 Ohio St.3d 8, 529 N.E.2d 192. 13 On June 30, 1993, Esparza filed in the court of appeals a motion for 14 delayed reconsideration of his direct appeal, alleging ineffective assistance of 15 appellate counsel. On July 27, 1994, the court of appeals granted Esparza s 16 motion in part, reinstating his appeal for the limited purpose of considering 17 his second assignment of error. That assignment of error involved the 18 following facts: 1 Before Esparza s trial, the prosecutor certified to the trial court that one 2 of the state s potential witnesses might be subjected to physical harm if her 3 name and address were disclosed to the defense. The trial judge held an ex 4 parte hearing on the matter under Crim.R. 16(B)(1)(e). At that hearing, the 5 prosecutor informed the court that Esparza s girlfriend had relevant testimony 6 but was afraid Esparza s brothers would harm her and her child if she 7 testified. The prosecutor submitted Esparza s criminal record and other 8 evidence indicating Esparza s penchant for violence against his girlfriend and 9 others.1 10 After receiving that information and ruling on the state s request for 11 relief from discovery, the trial judge did not recuse himself, but proceeded to 12 preside over Esparza s trial. We later held, in State v. Gillard (1988), 40 13 Ohio St.3d 226, 533 N.E.2d 272, paragraph one of the syllabus: When the 14 state seeks to obtain relief from discovery *** under Crim.R. 16(B)(1)(e), the 15 judge who disposes of such a motion may not be the same judge who will 16 conduct the trial. 17 On the reinstated appeal, Esparza argued that the trial judge had 18 committed reversible error by continuing to preside over the trial. The court 2 1 of appeals held that the trial judge had erred, but found the error 2 nonprejudicial. Thus, the court reaffirmed Esparza s conviction. The cause 3 is now before this court upon an appeal as of right. 4 Anthony G. Pizza, Lucas County Prosecuting Attorney, George J. 5 Conklin and Craig T. Pearson, Assistant Prosecuting Attorneys, for appellee. 6 7 8 9 10 11 12 David H. Bodiker, Ohio Public Defender, Randall Porter and John B. Heasley, Assistant Public Defenders, for appellant. Sirkin, Pinales, Mezibov & Schwartz and Martin S. Pinales, urging reversal for amicus curiae, National Association of Criminal Defense Lawyers. Per Curiam. In this appeal, Esparza presents four propositions of law. Finding none meritorious, we affirm. 3 1 I 2 In State v. Gillard, supra, we held that the judge who rules on a 3 Crim.R. 16(B)(1)(e) motion may not preside over the trial, because such a 4 situation creates an unnecessary risk that the judge will harbor a bias against 5 th[e] defendant. However, we also specifically held that violation of the 6 rule we announce today is not per se prejudicial. Gillard, 40 Ohio St.3d at 7 229, 533 N.E.2d at 276. In his first proposition of law, Esparza contends that 8 the latter holding was wrong--that a violation of the Gillard rule can never be 9 harmless. 10 In Arizona v. Fulminante (1991), 499 U.S. 279, 111 S.Ct. 1246, 113 11 L.Ed.2d 302, the United States Supreme Court distinguished between two 12 types of constitutional error: trial error and structural error. Trial error 13 occur[s] during the presentation of the case to the jury, and *** may 14 therefore be quantitatively assessed in the context of other evidence 15 presented in order to determine whether its admission was harmless beyond a 16 reasonable doubt. 499 U.S. at 307-308, 111 S.Ct. at 1264, 113 L.Ed.2d at 17 330. Structural error affects the entire conduct of the trial from beginning to 18 end as well as the framework within which the trial proceeds. Such errors 4 1 defy analysis by harmless-error standards. Id. at 309-310, 111 S.Ct. at 2 1265, 113 L.Ed.2d at 331. Esparza argues that a Gillard-type error is 3 structural and therefore is not subject to harmless-error analysis. 4 We reject Esparza s claim. If the information presented to the judge 5 had instead been improperly presented to the jury, that would clearly be trial 6 error, not structural error. We cannot see why the conclusion would be 7 different, where the information was improperly presented to the judge, who 8 in this case was not even the trier of fact. 9 But more fundamentally, the trial-error/structural-error distinction is 10 irrelevant unless it is first established that constitutional error has occurred. 11 We did not base our holding in Gillard on any constitutional provision, and 12 we do not think a violation of the Gillard rule is constitutional error. 13 It is true that the presence on the bench of a judge who is not 14 impartial is structural constitutional error. Fulminante, 499 U.S. at 310, 111 15 S.Ct. at 1265, 113 L.Ed.2d at 331. Moreover, Esparza cites In re Murchison 16 (1955), 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942, 946, which 17 indicates that the mere appearance of bias can violate due process. See, also, 5 1 Vasquez v. Hillery (1986), 474 U.S. 254, 263, 106 S.Ct. 617, 623, 88 L.Ed.2d 2 598, 609. 3 However, Esparza cites no case involving a situation remotely similar 4 to this one. Murchison, for instance, is readily distinguishable. There, the 5 defendants were charged with contempt by a judge acting as a one-man 6 grand jury under a unique Michigan statute. The very judge who preferred 7 the charges then proceeded to try and convict the defendants. Murchison 8 stands for the proposition that the accuser cannot sit as a judge to try the truth 9 or falsity of his own accusation. Similarly, in Tumey v. Ohio (1927), 273 10 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749, the appearance of bias existed by virtue 11 of a system by which an inferior judge is paid for his service only when he 12 convicts the defendant. 273 U.S. at 531, 47 S.Ct. at 444, 71 L.Ed. at 758. 13 We do not think a judge who presides over a trial after hearing a Crim.R. 14 16(B)(1)(e) motion is in the same constitutional position as a judge who 15 instituted the defendant s prosecution (Murchison), much less one who 16 stands to make money from the defendant s conviction (Tumey). 17 18 Moreover, Liteky v. United States (1994), 510 U.S. _____, 114 S.Ct. 1147, 127 L.Ed.2d 474, held that opinions formed by the judge on the basis 6 1 of facts introduced or events occurring in the course of the current 2 proceedings, or of prior proceedings, do not constitute a basis for a bias or 3 partiality motion unless they display a deep-seated favoritism or antagonism 4 that would make fair judgment impossible. 510 U.S. at _____, 114 S.Ct. at 5 1157, 127 L.Ed.2d at 491. Although Liteky involved the interpretation of a 6 federal statute,2 we doubt that the due process standard is more stringent. 7 In Gillard, we went beyond the requirements of the Constitution and 8 extended greater protection to defendants purely as a matter of state law. 9 Federal constitutional law does not mandate the Gillard rule, and 10 consequently does not govern the application of harmless-error analysis to 11 violations of that rule. 12 Esparza further contends that, even if harmless-error analysis is proper 13 here, the error was not in fact harmless. However, we agree with the court of 14 appeals finding of harmless error. We therefore overrule Esparza s first 15 proposition of law. 16 17 18 II In Esparza s second proposition of law, he claims that, when the court of appeals reinstated his appeal, it had a duty to reweigh the aggravating 7 1 circumstances and mitigating factors, despite already having done so in the 2 original appeal. In his third proposition, Esparza claims he was entitled to an 3 evidentiary hearing on his application to reinstate the appeal. No basis exists 4 for either claim. 5 In his final proposition, Esparza argues that his original appellate 6 counsel rendered ineffective assistance by not raising sixteen issues in the 7 court of appeals. We overrule this proposition for the reasons stated in the 8 court of appeals decision and judgment entry of July 27, 1994. 9 The judgment of the court of appeals is affirmed. 10 11 12 Judgment affirmed. MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER and COOK, JJ., concur. 13 WRIGHT, J., dissents. 14 RESNICK, J., not participating. 8 1 WRIGHT, J., dissenting. I respectfully dissent from the majority 2 3 opinion in this matter. I joined my former colleague, Justice Herbert Brown, 4 in his dissent in Esparza s original appeal, State v. Esparza (1988), 39 Ohio 5 St.3d 8, 16, 529 N.E.2d 192, 200. Furthermore, I think the error raised by 6 appellant in his first proposition of law is a structural error, rendering a 7 harmless-error analysis inappropriate. Arizona v. Fulminante (1991), 499 8 U.S. 279, 309, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302, 331. 9 1 The evidence included an assault complaint filed against him by his girlfriend, a temporary protective order and journal entry of conviction from a domestic violence case in which his girlfriend had been the victim, a statement by Esparza s sister recounting how Esparza and his brother Peter had threatened her, and a police report stating that Esparza had threatened police officers in jail. The prosecutor also submitted Peter Esparza s criminal record, showing that he had been charged with, but not convicted of, aggravated robbery and breaking and entering. 2 Section 455(a), Title 28, U.S. Code. 9
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