concurring and dissenting.
While I concur in the majority’s reversal of appellant’s conviction for murder of the second degree, I would also reverse appellant’s convictions for robbery and conspiracy, and grant appellant a new trial as to all charges. In my view, appellant was denied due process of law when the judge who presided at the trial of appellant’s co-defendant *199also presided at appellant’s suppression hearing unbeknownst to defense counsel. Under the circumstances of this case, where the evidence at co-defendant’s trial, other than appellant’s confession, implicated her in the homicide/robbery for which she is now charged, it was impossible for the judge to impartially consider the arguments presented in appellant’s suppression motion and to impartially weigh appellant’s credibility against the credibility of the police.
The majority refused to reach the merits of appellant’s argument, reasoning that at the suppression hearing, appellant did not object to the admission of her statement that she admitted killing one of the victims. The majority asserts that appellant therefore allowed the suppression judge to hear the same incriminating evidence which he heard at the earlier trial, thus appellant was not prejudiced and cannot now complain.
In this appeal, as is usually the case, the resolution of issues involving voluntariness and pre-arraignment delay will turn on the credibility of the police officers and the defendant. That assessment of credibility should be made by an impartial judge who has not previously been exposed to evidence indicating the defendant’s guilt. The judge in this case had, prior to the suppression hearing, presided at the trial of appellant’s co-defendant. At that trial, testimony was presented that appellant had been seen standing over the victim’s body with a gun in her hand. Having one’s credibility judged by someone who has previously been exposed to such incriminating evidence violated due process. Such a due process violation is not vitiated by the fact that appellant allowed the alleged confession to be read to the suppression court. At the suppression hearing, appellant challenged the statement as being involuntary. As such, she indirectly challenged its truthfulness. She should not have been forced to do that before a judge who had previously heard evidence concerning that issue. I therefore dissent.