The opinion of the court was delivered by: Glickman, Associate Judge
Before GLICKMAN and BLACKBURNE–RIGSBY, Associate Judges, and REID, Senior Judge.
In a non-jury trial, appellant Bobby Thorne was found guilty of possession of heroin, a misdemeanor. The judge sentenced him to a prison term of 180 days. Thorne appealed and moved for summary reversal of his sentence and for re-sentencing by another judge, on the ground that the trial judge unconstitutionally sentenced him more severely because, through counsel, he had exercised his right to cross-examine the government chemist at trial. The government opposed this relief but, acknowledging what it characterized as "ambiguity" in the trial judge's statements, suggested that we remand the record to permit her to clarify the basis of the sentence she imposed.
By an order entered on May 16, 2012, this court granted Thorne's motion. Concluding that "[i]n view of the judge's comments, there is a reasonable likelihood that she punished appellant for invoking his Sixth Amendment right of confrontation,"*fn1 we vacated Thorne's sentence and remanded the case to the Superior Court with instructions that it be re-assigned without delay to a different judge for re-sentencing. Our order stated that we would issue a more detailed opinion explaining our decision at a later date.
Thorne was charged by information with possession of a controlled substance, which a Drug Enforcement Administration ("DEA") chemist had quantified and identified as heroin.*fn2 At trial, Thorne was represented by a law student practicing under attorney supervision pursuant to this court's Student Practice Rule.*fn3 The defense, as articulated by counsel in her opening statement, was that "someone else" had possessed the alleged heroin and an "unreliable" witness had identified Thorne by mistake. Just before the chemist then took the stand as the first government witness, the judge inquired whether the defense was "insisting on the chemist in this case?" When defense counsel answered in the affirmative, the judge asked whether there was a dispute about the identity of the drugs. Counsel responded that "[w]e need to just verify the procedures and make sure everything went accordingly. And, in addition, we want testimony as to the purity of the drugs, the amount of the drugs." The prosecutor interjected that this data was "contained in the DEA–7 report" (the chemist's written report, which the defense had received). Noting that it was the defendant's "right to ... ask for the chemist," the judge then stated, "I do take all these things into account .... in a case where there's not a dispute as to what the drugs are."*fn4
At sentencing, the judge revealed what she meant by that remark. In his allocution, the prosecutor asked the judge for a sentence of 180 days of incarceration, with eighty days suspended, in view of Thorne's "extensive criminal history of narcotics-related convictions" *fn5 and "his unwillingness to accept responsibility for his crimes today." *fn6 Defense counsel asked for time served and probation because Thorne was receiving treatment and counseling for his drug addiction, was working well with his parole officer (who had placed him in a "halfway back program"), and was employed part-time.*fn7 After listening to the parties' allocutions, the judge addressed appellant as follows (emphasis added):
All right. Well, I do give a lot of credit for acceptance of responsibility. I can't give that in this case. And I do take into account the way the case was trialed—tried. Calling—I mean, it is your right to call the chemist, but in a case where there's no real dispute, I mean, to the extent I would give any credit, I can't give that credit. I mean, I do take all that into account, and I take into account—
Defense counsel immediately objected to the judge's statement that "calling the chemist" was something she would "take into account" at sentencing. "As his counsel," the student practitioner explained, "that was my strategic decision to do that." To that, the judge responded (emphasis added):
Right. Well, you have to live with the consequence of your—that's what I was trying to tell you. You have to live with the consequences of your strategic decision. All of this, this does not happen in a vacuum and I take all of that into account when I impose sentence. How a case is tried—
Counsel again objected, pointing out that appellant had a right to cross-examine the chemist. The judge then reiterated that appellant's exercise of that right had sentencing "consequences" (emphasis added):
He absolutely does. And I'm not—I'm not challenging your right. What I'm saying to you is though that I do give credit for acceptance of responsibility, and I can't give it. Under my own kind of standards, I'm not going to give it in a case where—I mean, I have to distinguish. I give credit for acceptance of responsibility when people plead before trial rather than go to trial and even within the trial—I give some credit when—when things are not—are challenged that they don't have to be. And so your trial decisions have consequences.
Defense counsel then explained that by cross-examining the chemist, she had sought to highlight the small amount of heroin and the "important fact" that (as she had believed) tetracosane had been found in (rather than added to) the sample when it was tested.*fn8 "All right," the judge responded, and then, without mentioning any of the other factors raised by the parties in their allocutions, she sentenced Thorne to 180 days in ...