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State v. Bader9/13/2002
Rockingham
Argued: February 6, 2002
The defendant, Seth Bader, was convicted of first degree murder, see RSA 630:1-a (1996), and conspiracy to commit first degree murder, see RSA 629:3 (1996), in the death of his former wife, Vicki Lynn Bader, following a jury trial in the Superior Court (Murphy, J.). The defendant appeals both convictions and the denial of his motion for a new trial. We affirm.
This appeal has a convoluted procedural history. Following his convictions in the superior court, the defendant filed a notice of appeal, which alleged thirteen grounds for error. Subsequent to our acceptance of his appeal, the defendant filed a motion for a new trial in the superior court. We granted the defendant's motion to remand the case to the superior court so that it could decide the five issues raised in the motion for a new trial. In one issue, the defendant contended that now-Chief Justice Walter L. Murphy (Judge Murphy) should have recused himself from presiding over the defendant's trial, and he moved to recuse Judge Murphy from presiding over the motion for a new trial. After a hearing, the Superior Court (Murphy, J.) denied the defendant's motion to recuse.
After a subsequent hearing, the superior court rejected the remaining four issues in the defendant's post-trial motion. Thereafter, we granted the defendant's motion to amend his notice of appeal to include the five issues raised in his motion for a new trial. In his brief, however, the defendant pursued only the five issues raised in his motion for a new trial. Consequently, we limit our review to those issues, specifically: 1) recusal of the trial judge; 2) discovery of exculpatory evidence; 3) hearsay evidence; 4) alleged intra-jury misconduct; and 5) newly discovered evidence. See State v. Bathalon, 146 N.H. 485, 490 (2001) (issues raised in the notice of appeal, but not briefed, are deemed waived).
I. Recusal of the Trial Judge
After the defendant was arrested in April 1997 and charged with murder and conspiracy to commit murder in the death of his former wife, the administrator of her estate brought a wrongful death suit against the defendant on behalf of the estate. The administrator also sought an ex parte attachment on the defendant's assets and an injunction to bar him from expending any of those assets. Judge Murphy granted the ex parte attachment and ordered the defendant not to make "any extraordinary expenditures" without court approval.
Judge Murphy also granted the defendant's request for an extension of time to file an objection and request for hearing on the attachment. The attachment was later modified by agreement of the parties and the matter was deferred pending resolution of the criminal charges. In May 1997, then-Chief Justice Joseph P. Nadeau assigned all criminal, civil or equity cases involving the defendant to Judge Murphy.
Judge Murphy set bail at $750,000, an amount the defendant contends he could have met but for the previously-ordered attachment. The defendant then petitioned this court for a writ of habeas corpus in order to challenge the bail order. On September 18, 1997, we denied the defendant's petition. On the same date, the superior court was notified that the defendant's counsel in the civil cases withdrew from representation. In October 1997, the defendant's new counsel in the civil cases filed a motion for summary judgment and a motion to vacate the attachment. In November 1997, " n light of the allegations contained in defendant's pleadings . . . having been specially assigned to, and having made various rulings in the criminal case," Judge Murphy recused himself from further participation in the civil c
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