State v. Perry, ___ N.C. App. ___, 821 S.E.2d 617 (Oct. 16, 2018)

In this habitual felon common-law robbery case, the trial court did not err by denying the defendant’s motions to recuse the entire Henderson County District Attorney’s Office. The defendant’s recusal motions asserted that ADA Bender previously represented the defendant in one of the felonies underlying the habitual felon charge and that the State later violated the trial court’s express condition that Bender not participate in the prosecution. In 2015 the defendant was indicted for injury to property, resisting an officer, giving false information to the police, and common-law robbery (“the four charges”). He was later indicted for attaining habitual felon status based on three unrelated prior felony convictions. At a pretrial hearing, the defendant moved for recusal of the District Attorney’s Office, arguing that Bender had previously represented him on one of the priors supporting the habitual felon charge. The trial court denied the motion and noted that the other prosecutor involved in the case, ADA Mundy, had given assurances that Bender would not be involved in the case in any way. At the start of the trial on the four charges, the defendant renewed his recusal motion; the trial court denied it, adopting its previous ruling. During trial on the four charges, Mundy served as the primary prosecutor. However, the trial court introduced both Mundy and Bender to the jury as the State’s attorneys. Bender attended bench and chambers conferences and argued certain jury instruction issues. After the jury found the defendant guilty of resisting an officer and robbery, the habitual felon phase began. Defense counsel made a third recusal motion, this time on the additional basis that Bender had participated in the trial. After an unrecorded conference with counsel, the defendant never obtained a ruling on his third recusal motion, and instead pled guilty to attaining habitual felon status. After judgment was entered the defendant appealed. The court noted that a prosecutor may not be disqualified unless and until the trial court determines that an actual conflict of interest exists. Here, because Bender did not previously represent the defendant with respect to the substantive charges at issue, the defendant “failed to show the actual conflict of interest required . . . to disqualify ADA Bender, much less the entire [DA’s] Office from prosecuting those charges.” Without proof of an actual conflict of interest as to those charges, further inquiry or direction by the trial court was unnecessary. Accordingly, the defendant failed to show the trial court’s denial of his disqualification motion as to the prosecution of those charges was an abuse of discretion.

           Turning to the recusal issue regarding the habitual felon charge, the court noted that because Bender represented the defendant with respect to one of the prior felony convictions, “the trial court should have inquired into whether ADA Bender divulged any confidential information to other prosecutors that could have been detrimental to defendant’s trial on the habitual felon charge in order to find whether an actual conflict of interest existed.” The court went on to note that the defendant never obtained a ruling on his motion made at the habitual felon phase, instead opting to plead guilty to habitual felon status. It concluded:

Even had the trial court conducted a formal hearing on defendant’s motion and found an actual conflict of interest would exist if ADA Bender assisted in prosecuting the habitual felon charge, whether it was a disqualifying conflict was a matter within its sound discretion. . . . [D]isqualifying the entire district attorney’s office under these facts, as defendant requested, would have been impermissibly excessive. And given that ADA Bender’s prior representation of defendant was wholly unrelated to the charges in the first phase of trial, the only rulings on the motions were obtained before the jury found defendant guilty of an underlying felony to which a habitual offender charge could attach, two unrecorded attorney conferences were held immediately following defendant’s first and third disqualification motions before and at the start of the habitual offender proceeding, and defendant failed to argue on the record how an actual disqualifying conflict might exist when prior convictions necessary to prove habitual felon status are public records but, rather, appeared instead to argue the outmoded appearance of impropriety test, we cannot conclude the trial court’s decision not to disqualify ADA Bender from the prosecution at the time it rendered its rulings was “so arbitrary that it could not have been the result of a reasoned decision.” (citations and quotations omitted).

           Finally, the court rejected the defendant’s argument that the trial court erred by not allowing his disqualification motion after the State allegedly violated the condition that Bender not participate in the prosecution, disagreeing with his interpretation of the proceedings. The court noted that during its ruling on the defendant’s first recusal motion, which it adopted in its second ruling, the trial judge stated: “I’m going to deny the motion at this time. And the Prosecutor has given assurances that [ADA] Bender will in no way be involved in this case.” Although the State concedes that Bender, in contradiction to that assurance, did participate in the prosecution, the court did not interpret the trial court’s denials as being conditioned upon Bender not participating in the first phase of trial and thus rejected this argument.