55 Conn. App. 602 | Conn. App. Ct. | 1999
Lead Opinion
Opinion
The sole issue in this appeal from the granting of a petition for a writ of habeas corpus is whether the respondent commissioner of correction (commissioner)
The following facts are relevant to this appeal. In March, 1989, the petitioner, Angelo Joyner, was arrested and charged with one count of assault in the first degree, three counts of sexual assault in the first degree and one count of kidnapping in the first degree. Attorney Samuel Dixon represented the petitioner at his criminal trial. Dixon’s trial strategy was to assert a defense of guilty by reason of mental disease or defect. The petitioner was convicted on all counts in June, 1991,
Prior to the representation of the petitioner in the criminal matter, Dixon had represented the estate of the petitioner’s father in a wrongful death action. The wrongful death action ended with a settlement, the proceeds of which became the corpus of the deceased’s estate. Dixon also served as the administrator of the estate. A judge of probate approved the estate accounting and ordered the estate distributed in shares of nearly $23,000 each to the petitioner and his brothers and sister. Dixon did not distribute the estate funds to the
Just prior to the issuance of the distribution order, the victim of the petitioner’s criminal acts commenced a civil action against the petitioner and served a prejudgment remedy garnishment order on Dixon, as administrator of the estate. Dixon undertook to represent the petitioner in the civil action and represented to the victim’s attorney that he had no funds belonging to the petitioner because they had been distributed.
After the petitioner obtained a special public defender for the trial of his amended petition for a writ of habeas corpus, Dixon refused to cooperate with the special public defender by failing to turn over his file and other records. The habeas judge became involved in the pretrial discovery motions because Dixon failed to cooperate with the petitioner’s counsel. Dixon failed to obey a subpoena served on him by the commissioner, who was acting by order of the habeas court. The habeas court then issued a capias, which Dixon successfully evaded. The special public defender eventually
Before evidence was heard on the habeas petition, the commissioner moved to recuse the habeas judge claiming that he was biased against Dixon. The alleged bias, according to the commissioner, concerned the referrals to the chief state’s attorney and to the statewide grievance committee for investigation of Dixon’s conduct. The thrust of the claim was that the habeas court could not view Dixon, the presumed witness, impartially after such referrals. The motion was referred by the habeas judge to another trial court. That court, Klaczak, J., denied the motion, concluding that the habeas court had not prejudged Dixon but had simply set investigations in motion. Judge Klaczak assumed, as did the commissioner, that Dixon would be a witness during the habeas trial.
After the second day of evidence in the habeas trial, the commissioner moved for a mistrial claiming that the habeas judge had made remarks indicating a lack of impartiality toward the petitioner. The motion was denied.
Later, during the trial, the habeas judge learned that the chief state’s attorney’s office had declined to prosecute Dixon because of a problem with the statute of limitations and because there was no evidence that the
The commissioner was made aware of the telephone call by the habeas judge, and the commissioner again moved for the habeas judge to recuse himself and for a mistrial. The motion for recusal and mistrial was referred to yet another trial court, Hon. Harry Hammer, judge trial referee, for review. That court denied the motion, giving its reasons for the denial in a signed thirty-three page transcript of the trial court’s opinion.
The trial court stated that the controlling issue in a motion to recuse is whether a reasonable person, aware of all the circumstances surrounding the proceeding, would question the judge’s impartiality. The court also stated that the determination of whether impartiality had been compromised in this case related to the court’s ability to weigh and consider fairly the testimonial evidence, if any, of Dixon. The court denied the motion without prejudice and permitted renewal of it if there came a point in the habeas proceeding when Dixon’s credibility became an issue, that is, if Dixon eventually testified. The motion to recuse never was renewed and, in fact, Dixon never testified during the habeas hearing.
After the commissioner’s motion was denied without prejudice, Dixon was subpoenaed to testify. He appeared with counsel and invoked his fifth amendment privilege not to testify. The habeas judge stated that he found Dixon lacking in credibility because of an adverse inference drawn from Dixon’s failure to testify, and not from any testimony by Dixon.
Any factual disputes involved in a claim of judicial bias may require an evidentiary hearing and, if so, it should be conducted before another judge. Szypula v. Szypula, 2 Conn. App. 650, 653, 482 A.2d 85 (1984). It has long been settled that the bias or prejudice sufficient to result in a disqualification “must stem from an extrajudicial source and result in an opinion on the merits
The standard for appellate review of whether the facts require disqualification is whether the court’s discretion has been abused. Abington Ltd. Partnership v. Heublein, supra, 246 Conn. 824. The question then becomes whether an objective observer reasonably would doubt the judge’s impartiality given the circumstances. Id., 825-26. If an objective observer, in view of all of the facts would reasonably doubt the court’s impartiality, the court’s discretion would be abused if a motion to recuse were not granted. “In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) Glass v. Peter Mitchell Construction Leasing & Development Corp., 50 Conn. App. 539, 543, 718 A.2d 79, cert. granted on other grounds, 247 Conn. 938, 723 A.2d 317 (1998) (appeal withdrawn July 6, 1999).
The outcome of Abington Ltd. Partnership rested on its particular facts because each such case must be evaluated on its own facts. Abington Ltd. Partnership v. Heublein, supra, 246 Conn. 826. An objective observer in that case reasonably could have questioned the judge’s impartiality because he had, during' the trial, visited the site on his own, used a private road to gain access, gained entrance to a private dwelling on pre-textual grounds, initiated a conversation with the owner of the private dwelling' about the litigation, listened to
Only two other Supreme Court cases, using the same test for the application of canon 3 (c) (1), concluded that the trial judge should have been recused. In Papa v. New Haven Federation of Teachers, supra, 186 Conn. 746-47, the court determined that the judge’s comments to a news reporter, while the case he was hearing was pending, as to the propriety of illegal teachers strikes, which was the subject of the case in question, would cause a reasonable person to question the judge’s impartiality. In the second case, Cameron v. Cameron, 187 Conn. 163, 170-71, 444 A.2d 915 (1982), the court held that recusal was necessary because the judge, during the trial, took the position that the defendant had falsely testified at a deposition, accused the defendant and his counsel of attempting to perpetrate a fraud on the court, stated that the defendant’s counsel has had trouble with the court before with some of his “clients absconding,” and that whether the defendant’s counsel had ever been unprofessional before the trial judge or any other judge was “questionable.”
In a myriad of other cases, the denial of a motion to recuse was upheld because the judge’s impartiality was not sufficiently compromised. See State v. Webb, 238 Conn. 389, 462, 680 A.2d 147 (1996) (judge presided on previous case involving defendant); Bonelli v. Bonelli, 214 Conn. 14, 19, 570 A.2d 189 (1990) (judge had previous cocounsel relationship with plaintiffs attorney); State v. Watson, 198 Conn. 598, 611, 504 A.2d 497 (1986) (alleged participation in negotiating plea bargain); State v. Lopez, 197 Conn. 337, 356-57, 497 A.2d 390 (1985) (sentencing judge allegedly heard privileged information); State v. Fullwood, 194 Conn. 573, 579-81, 484 A.2d 435 (1984) (alleged participation in pretrial negotiations); State v. Gradzik, 193 Conn. 35, 44-46, 475 A.2d
Facts common to all of those cases upholding the denial of a motion to recuse are that the bias involved one of the parties or their present counsel, or a witness, rather than a potential or putative witness, and that even when the claim concerned an extrajudicial or ex parte event or situation related to the case pending before the trial court, recusal was not necessary unless, objectively, a reasonable person would view the failure to recuse as a strike at the core of judicial integrity that undermines public confidence in the judiciary.
The three cases that reversed the denial of a motion to recuse do not contain facts that are common to the present case. In Abington Ltd. Partnership v. Heublein, supra, 246 Conn. 825, the judge sought and obtained extrajudicial information secretly, rendered a decision on the merits that could have been influenced by that information not learned by the judge from his participation in the case, and the ex parte event was not communicated by the judge to either party. In Papa v. New Haven Federation of Teachers, supra, 186 Conn. 746-47, the judge commented publicly outside the courtroom while the case was pending before him as to his views on the very issue he had yet to decide. In Cameron v. Cameron, supra, 187 Conn. 165, the judge commented in a derogatory manner about the defendant’s counsel, referring to prior cases of that counsel before the judge and to counsel’s general reputation among judges. The judge also accused the defendant of perpetrating a fraud on the court and of having lied during a previous deposition. Id., 170-71.
We conclude that the trial court in this case properly denied the commissioner’s motions to recuse. The factors on which we rely include the fact that the outcome
By a fair preponderance of the evidence, the habeas judge found that Dixon had misappropriated the petitioner’s money. It is hard to understand how any judge could have concluded otherwise. This was but one fact among many related to whether the petitioner had received ineffective assistance of counsel.
Most members of the public would commend the habeas court for referring the matter of his recusal to two other judges and for asking the grievance committee and the state’s attorney to investigate Dixon’s actions. The habeas judge’s telephone call to the state’s attorney as to the status of the investigation was not, in our opinion, an indication of a bias or the appearance of a bias that would call into question the judge’s ability to decide the case impartially.
We decide this case on its particular facts; see Abington Ltd. Partnership v. Heublein, supra, 246 Conn. 826; and hold that the habeas judge did not exhibit bias and
The judgment is affirmed.
In this opinion LANDAU, J., concurred.
The pleadings and other documents in the file variously describe the respondent as the warden, the commissioner and the state of Connecticut
The facts related to the petitioner’s criminal trial are set out in State v. Joyner, 225 Conn. 450, 625 A.2d 791 (1993), in which his conviction was affirmed on direct appeal.
During the criminal trial of the petitioner, the state filed a motion to disqualify Dixon as his counsel, claiming that Dixon was the executor of the estate of the petitioner’s father, that the victim had filed a civil action against the petitioner and attached the proceeds of the estate, that Dixon also had a claim on the proceeds for attorney’s fees in the criminal matter, and that a conviction in the criminal case would conclusively establish liability in the civil case thereby entitling the victim to damages, which would reduce the amount of money available for attorney’s fees. The state argued that Dixon had a financial stake in the outcome of the criminal proceeding, which might be in conflict with the petitioner’s interests.
The trial court in the criminal case, Schimelman, J., held a hearing on the motion to disqualify Dixon before the trial began. In response to the trial court’s question, Dixon stated that the Court of Probate had ordered him to distribute the funds, and that he had done so and no longer was holding any assets of the estate.
The trial court brought the potential conflict to the petitioner’s attention. The court noted that a garnishment order had issued against Dixon for funds of the estate, meaning that both the victim and Dixon had a claim on the funds, that Dixon was representing the petitioner in both the civil and the criminal cases, and that the petitioner might not get the best representation as a result.
The trial court also had the petitioner meet privately with a public defender to discuss the potential conflict. The public defender reported to the court that the petitioner was aware of the potential conflict as stated in the state’s motion to disqualify. Thereafter, the petitioner conveyed to the court,
The habeas court concluded that there was good cause for the petitioner’s failure to preserve the claim relating to Dixon’s conflict of interest at trial and that actual prejudice resulted from the alleged constitutional violation. The court, therefore, did not preclude the petitioner from raising the issue at the habeas trial. See Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977).
Canon 3 (c) (1) of the Code of Judicial Conduct provides in relevant part: “A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . .”
Dissenting Opinion
dissenting. An appearance of impropriety is the standard by which judicial conduct is to be weighed. See Code of Judicial Conduct Canon 3 (c) (1). Because I believe that the habeas judge created an appearance of impropriety, regardless of whether he was fair and impartial and whether there was probable cause to grant the habeas petition, I respectfully dissent from the majority opinion.
The respondent commissioner of correction (commissioner) claims that the habeas judge’s refusal to recuse himself after he initiated and then urged pursuit of criminal and ethical investigations of attorney Samuel Dixon and declared that he had found probable cause to believe that Dixon had committed criminal and ethical violations deprived the commissioner of an impartial fact finder.
“The ‘appearance as well as the actuality of [partiality] on the pari, of the trier’ will suffice to constitute proof of bias sufficient to warrant disqualification. Id., 170. The standard that we employ on appellate review is whether a reasonable person who is aware of the circumstances surrounding the judicial proceeding would question the judge’s impartiality. Papa v. New Haven Federation of Teachers, 186 Conn. 725, 745-46, 444 A.2d 196 (1982); Keppel v. BaRoss Builders, Inc., 7 Conn. App. 435, 440-41, 509 A.2d 51 [cert. denied, 201 Conn. 803, 513 A.2d 698] (1986).” DeMatteo v. DeMatteo, 21 Conn. App. 582, 590-91, 575 A.2d 243, cert. denied, 216 Conn. 802, 577 A.2d 715 (1990).
“Moreover, disqualification of a trial judge is not dependent upon proof of actual bias. The appearance
“In analyzing this ground for disqualification, we emphasize the fundamental distinction between a claim of bias and a claim of an appearance of impropriety. Canon 3 (c) (1) provides in relevant part: ‘A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (A) the judge has . . . personal knowledge of disputed eviden-tiary facts concerning the proceeding . . . .’To prevail on its claim of a violation of this canon, the [commissioner] need not show actual bias. The [commissioner] has met [his] burden if [he] can prove that the conduct
“Whether that evidence requires disqualification is an issue that, in the first instance, is left to the exercise of a trial judge’s discretion. Bonelli v. Bonelli, [214 Conn. 14, 22, 570 A.2d 189 (1990)]. Accordingly, our review ordinarily is limited to the question of whether a trial judge has abused his discretion.” Abington Ltd. Partnership v. Heublein, supra, 246 Conn. 824.
In this case, the habeas judge abandoned his position of impartiality and became an advocate by questioning the thoroughness of the investigation done by the state’s attorney and so stating on the record. “The trial court should never assume a position of advocacy, real or apparent, in a case before it, and should avoid any displays of hostility or skepticism toward the defendant’s case, or of approbation for the prosecution’s. ... A fine line separates proper and improper judicial conduct and the judge must strive to appear impartial and detached.” (Citation omitted; internal quotation marks omitted.) State v. Pharr, 44 Conn. App. 561, 570, 691 A.2d 1081 (1997). “The judge occupies an exalted and dignified position; he is the one person to whom the jury, with rare exceptions, looks for guidance, and from whom the litigants expect absolute impartiality. An expression indicative of favor or condemnation is quickly reflected in the jury box and at the counsel table.” (Internal quotation marks omitted.) Id.
“In evaluating whether, from an objective standpoint, these facts demonstrate a violation of canon 3 (c) (1), we start from two well established propositions concerning the appearance of judicial impropriety. Although stated separately, each proposition reenforces the other.
“The second proposition is that an inquiry into disqualification of a judge requires a sensitive evaluation of all the facts and circumstances in order to determine whether a failure to disqualify the judge was an abuse of sound judicial discretion. Bonelli v. Bonelli, supra, 214 Conn. 22. In undertaking such an evaluation, we must be mindful of its intrinsic difficulties. Judges who are asked to recuse themselves are reluctant to impugn their own standards. Likewise, judges sitting in review of others do not like to cast aspersions. Yet drawing all inferences favorable to the honesty and care of the judge whose conduct has been questioned could collapse the appearance of impropriety standard . . . into a demand for proof of actual impropriety. United States
The facts here demonstrate that the habeas judge heard evidence during pretrial discovery and received information from the petitioner’s special public defender that Dixon may have misappropriated funds from the estate of the petitioner’s father, which he referred to the grievance committee and to the chief state’s attorney. During the first day of trial, before the commissioner had an opportunity to cross-examine the witness, the habeas judge concluded that Dixon had taken the petitioner’s money. Although he failed to pursue it, Dixon filed a grievance against the habeas judge. After he received information that the state’s attorney was not going to pursue criminal allegations against Dixon, the habeas judge communicated with the prosecutor assigned to the matter and demanded to know why. By his own admission, the habeas judge acknowledged that he may have pressed the prosecutor too hard.
I have no doubt that the habeas judge was certain that he could be impartial in the face of these facts, and I also believe that the other trial judges who considered or reviewed the commissioner’s motions to recuse fairly thought lhat the habeas judge could remain impartial. What the judges thought, however, is not the applicable standard. The standard is whether there is an appearance of partiality.
Although the habeas judge had a responsibility to report the information given to him by the special public defender concerning Dixon’s possible misappropriation of the petitioner’s funds; see Code of Judicial Conduct Canon 3 (b) (3);
I would reverse the judgment and grant a new trial.
On appeal, the commissioner makes no claim that the habeas court improperly referred the matter to the statewide grievance committee or to the chief state’s attorney.
I agree with the majority that it was entirely appropriate for the habeas judge to refer the question of Dixon’s alleged criminal wrongdoing to the state’s attorney when it first came to his attention. See Code of Judicial Conduct Canon 3 (b) (3).
At the end of the first day of trial, the following colloquy took place in response to an objection from the commissioner.
“The Court: First of all, I’ll give such weight to it as it deserves. Secondly, I have no doubt from the testimony I’ve heard without the notes that Mr. Dixon took the money, apparently before [the victim’s lawyer] informed
“[The Prosecutor]: To be quite honest, Your Honor, I’m not sure what the purpose of a cross-examination would be at this point. The court, has already indicated that it’s found, as a matter of fact—the court said, I believe, T have no doubt that he took the money before he knew the civil suit was filed.’
“The Court: I didn’t mean no doubt.
“[The Prosecutor]: And the court has indicated that he committed lies.
“The Court: I didn’t mean no doubt, but I think the evidence has been presented at this point.
“[The Prosecutor]: Well, that was not what the court said.
“The Court: Well, then I misspoke. The point is, from the testimony from [the petitioner], from the testimony from [the victim’s counsel] earlier, and from [the victim’s] testimony, it appears that Mr. Dixon did not know of the lawsuit, on May 10 when he allegedly told [the petitioner] that the money had been tied up by the lawsuit.
“[The Prosecutor]: Well, if Your Honoris obviously crediting the testimony of this witness over [that of the victim’s counsel] because [the victim’s counsel] testified that this witness was aware of it on May 2. Now, I don’t know how much more plain the court could have made it. It’s put me in an awkward position, and I don’t want to have to renew my previous motion to recuse. When the court makes these typos of findings of fact on the record before I even cross-examine this witness, let alone before I even present my case, it certainly creates at least, an appearance . . . .”
The next trial day the commissioner moved for a mistrial on the basis of those comments, by the habeas judge. The motion was denied. The trial was recessed for several months due to the judge’s illness. When the trial resumed in September, 1996, the habeas judge made the following statement on the record:
“The Court: Before we start with any evidence, I wanted to bring to the parties’ att ention certain items. Number one, on June 23, 1996, attorney
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“The Court: Secondly, I did receive a letter from an assistant to the chief state’s attorney, Julia Dewey I believe it is. I had the clerk send copies to both counsel. ... I would point out to you that I remember the date of September 5, but I did contact attorney Dewey as to questioning the efficacy of the investigation. She did invite me in the letter to call her if I had any questions. I wanted to know the extent of the investigation to the effect that she stated that there were affidavits from the beneficiaries indicating that they were satisfied that all the money had been paid and that there was no evidence in the record apparently or no evidence that [the petitioner] had not been paid. I said, ‘Are these affidavits taken by Mr. Dixon, or did your investigator actually talk to these people?’ She refused to answer that. I did not reiterate an opinion that he had probably committed larceny. I don’t recall saying that. I do recall asking her about whether she conducted a thorough investigation. I wanted to know how far that had gone. There seems to be a question as to what access the judge in a case like this has to the investigation by a state’s attorney. She obviously felt I did not have access. I did call her back, did not reach her and left a message on the machine that I would not trouble her again. . . . I’m trying to get to the bottom of this. And [Dewey] presumed something which was untrue, but that is why I was questioning the efficacy of the investigation. I didn’t question the efficacy, I questioned the thoroughness of it by asking how far they had gone, and she refused to tell me. I may have said something [like] ‘it seems to me someone should have checked. Did you check over all the bank records.’ I don’t think she responded to that. I do not remember saying that he had probably committed larceny as alleged in this case. Sure, I found that there was probable cause to believe that attorney Dixon committed the crime of larceny, which is why I made the request of the state’s attorney.
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“The fact that they have decided that there is no further need to pursue a criminal investigation, that’s up to them. I did call attorney Dewey back
Canon 3 (c) (1) provides: “A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:
“(A) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
“(B) the judge served as lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it . . .
“(C) the judge knows that he or she, individually or as a fiduciary, or his or her spouse or minor child residing in the judge’s household, has afinaneial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
“(D) the judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
“(i) is aparty to the proceeding, or an officer, director, or trustee of aparty; “(ii) is acting as a lawyer in the proceeding . . .
“(iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
“(iv) is to the judge’s knowledge likely to be a material witness in the proceeding . . .
Canon 3 (b) (3) provides: “Ajudge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which 1 he judge may become aware. A judge is not required 1 o disclose information gained by the judge while serving as a member of a committee
Although the majority notes that the habeas judge was invited to telephone the assistant state’s attorney, such an invitation does not obviate the need for the habeas court to appear impartial.