People v. Conner

666 P.2d 5 (1983)

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Nature of the Case

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Facts

D was charged with armed robbery, burglaries, possession of stolen property and forgery. These charges were prepared and prosecuted by Deputy District Attorney Braughton, director of a three-attorney career criminal unit in the DA's office. On February 17, 1981, Braughton was in a courtroom speaking with a judge. At that time, D was in the custody of a deputy sheriff in a nearby jury room. Braughton heard loud noises emanating from the room where D was being held. These were followed by the sound of a bullet hitting the wall. Braughton ran to the jury room and saw D holding a revolver and the deputy sheriff bent over in front of him. The deputy had been stabbed and shot. D turned around and immediately ran from the room. D fired a shot toward Braughton. Braughton heard the sound of a gunshot and saw a bullet hole in the wall approximately two feet from where he had been standing. Braughton was uncertain whether that hole was caused by the impact of a previous bullet or by that which had just been fired. D escaped but was promptly apprehended. Braughton made a written report to the district attorney and discussed his experience directly with approximately 10 of the 25 deputy felony prosecutors in his office. Braughton was also interviewed by the news media, during which, in addition to describing the event, Braughton characterized D both as a dangerous felon and as an escape risk. The D case was reassigned to Deputy District Attorney Nudelman. At no time did Braughton discuss the case with Nudelman. D was charged additionally with assault on a police officer and escape from prison with force, enhancements of use of deadly weapon in commission of a felony and inflicting great bodily harm in the commission of felony were added to each of the charges. He was not charged with any crime for his actions against Braughton. D moved for a change of venue and for recusal of the judge and of the entire DA's office from all of the pending prosecutions. Braughton testified that he considered himself a witness, not a victim, that he did not believe that D had intended to lure him into a dangerous position, that he had not discussed the event or the case with Nudelman, and that the February 17 incident had not resulted in any change in the dispositional offer previously made to Dt in connection with his prior charges. D contends that the court should recuse the entire DA's office if it could be demonstrated that there was at least an 'appearance of conflict.' If the standard for recusal required an 'actual conflict,' D admitted that he had not presented any hard evidence that there is prejudice or pressure exerted upon Mr. Nudelman. The court granted the motion to recuse the entire DA's office based upon the fact that Braughton was a witness to the event and a potential victim. P appealed. P contends that recusal should not be granted unless an 'actual conflict' appears.