54 Conn. App. 258 | Conn. App. Ct. | 1999
Opinion
The defendant, Patrick J. Fitzgerald, appeals from the judgment of conviction, rendered after a trial to the court, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a).
The relevant procedural history is as follows. The defendant, in a two part information, was charged in part A with operating a motor vehicle while under the influence of intoxicating liquor and in part B with having
The state treats this as a belated claim of judicial disqualification and urges us to reject it under the precedent of State v. Kohlfuss, 152 Conn. 625, 628, 211 A.2d 143 (1965).
Due to the potential for a deprivation of constitutional rights when a trial is not conducted before an impartial tribunal and the obvious implications of bias inherent in the mistake of informing the trier of the existence of a part B information prior to a trial to the court, we examine the claim under the plain error doctrine. “Such review is reserved for truly extraordinary situations
When proof of a defendant’s prior conviction is used to enhance the punishment for a contemporaneous conviction of a substantive offense, our rules of practice require the state to draft the information in two parts. State v. Jones, 234 Conn. 324, 339, 662 A.2d 1199 (1995).
Practice Book § 37-11 requires that part B of the information must be read to the defendant “in the absence of the judicial authority . . . .”
The requirements we discuss here are not a mechanism recently devised by the judges. The procedure became part of our substantive case law three quarters of a century ago when our Supreme Court adopted the procedure prescribed by an English statute.
In Ferrone, our Supreme Court established the bright line rule that to avoid the possibility of prejudice when an information includes a defendant’s history of prior convictions as a basis for increasing a sentence, the trier of fact that hears the evidence concerning the
“It follows that, until the verdict of the juiy on the principal issue has been rendered, no knowledge of the alleged previous convictions should reach them . . . by reading that part of the information in which they are recited . . . .” Id., 174-75. In an unusual display of pride, the Supreme Court has expressly referred to the kudos that Connecticut’s two part procedure has received from other jurisdictions. State v. LaSelva, supra, 163 Conn. 233 n.4.
In State v. Jones, supra, 234 Conn. 324, our Supreme Court reiterated that mention of the defendant’s prior criminal conduct to the trier of fact, a jury in that case, was manifestly unjust. “[T]he probability of a jury inferring a predisposition to commit the crime with which the defendant stands charged is logically increased when the evidence pertains to misconduct similar to that involved in the case on trial . . . .” Id., 345. “[N]o reasonable man can doubt that the [trier of fact] not only may have been, but most probably was, so unfavorably influenced against the accused [by the prosecutor’s reference to prior convictions] as to deprive him of a fair trial. This is sufficient reason to grant a new trial. Williams v. United States, 168 U.S. 382, [18 S. Ct. 92, 42 L. Ed. 509 (1897)]; People v. Aikin, 66 Mich. 460, 33 N.W. 821 [1887]; Anderson v. State, 104 Ala. 83, 16 So.
The state argues that the transcript shows that during the part A trial the court had forgotten that it had been improperly informed of the existence of a part B of the information. This argument is not persuasive. The issue before us is the legal effect of a violation of the substantive rule of State v. Ferrone, supra, 96 Conn. 172-76, as codified by Practice Book § 37-11. It would be irrational for us to hold that a case-by-case determination must be made, the determining factor being how good a memory each trial judge possessed. The state’s contention would create the bizarre situation in which it would be proper to mention part B before a judge with a poor memory but would be cause for reversal to mention part B before a judge with a good memory.
Refusal to rely on a trial judge’s mental processes after hearing improper material is well established in our case law. “Although it may be true that the decision at which the court arrived upon the merits of the case might have been unaffected by this improper [statement], we cannot be certain of it. ... A judge has not such control over his mental faculties that he can definitely determine whether or not inadmissible evidence he has heard will affect his mind in making his decision.” (Internal quotation marks omitted.) Borkowski v. Borkowski, 228 Conn. 729, 748, 638 A.2d 1060 (1994), quoting Barbieri v. Cadillac Construction Corp., 174 Conn. 445, 451, 389 A.2d 1263 (1978); see also Kovacs v. Szentes, 130 Conn. 229, 232, 33 A.2d 124 (1943); Peck v. Pierce, 63 Conn. 310, 320, 28 A. 524 (1893); see Buckingham’s Appeal from Probate, 60 Conn. 143, 160, 22 A. 509 (1891). “Since we cannot
The Barbieri precedent is directly on point here where the trial court was apprised of improper material in violation of substantive case law and the intended purpose of the rules of practice. This rule of law and procedure does not harm the state and protects the defendant from unnecessary prejudice. State v. Jones, supra, 234 Conn. 337. Accordingly, we conclude that the remarks of the state’s attorney referring to the part B information tainted the entire case and constituted plain error requiring a new trial. The trial court should have granted the defendant’s motion for a new trial.
The judgment is reversed and the case is remanded for a new trial.
In this opinion the other judges concurred.
General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. . . .”
General Statutes § 14-227a (h) provides in relevant part: “Any person who violates any provision of subsection (a) of this section shall ... (3) for conviction of a third violation within ten years after a prior conviction for the same offense, be fined not less than one thousand dollars nor more than four thousand dollars and imprisoned not more than two years, one hundred twenty consecutive days of which may not be suspended or reduced in any manner, and have his motor vehicle operator’s license or nonresident operating privilege suspended for three years . . . .”
Practice Book § 36-14 provides in relevant part: “Where the information alleges, in addition to the principal offense charged, a former conviction or convictions, such information shall be in two separate parts, each signed by the prosecuting authority. In the first part, the particular offense with which the accused is charged shall be set out, and in the other part the former conviction or convictions shall be alleged. . . .”
Practice Book § 37-10 provides: “Where the information is in two parts pursuant to Section 36-14 and alleges, in addition to the principal offense charged, a former conviction or convictions, the plea and the election of a method of trial shall first be taken only on the first part of the information.”
Practice Book § 37-11 provides: “Prior to the time the defendant enters a guilty plea or, if the defendant pleads not guilty, prior to the commencement of trial, the clerk shall notify the defendant, in the absence of the judicial authority, of the contents of the second part of the information. The clerk shall enter on the docket the time and place of the giving of such notification and, where necessary, shall include entry thereof in the judgment file.” (Emphasis added.)
On November 5, 1996, the state’s attorney filed a substitute information to which the defendant entered a plea of not guilty. Immediately following, 1he prosecutor stated for the record that the defendant “was previously advised of part B of 1he information on April 11 .... I just wanted that on the record.” The court responded, “Okay, so noted.”
The fact pattern in Kolfuss involved a question of disqualification of a judge because the judge had sat as a member of the sentence review division reviewing a previous and unrelated crime. That is not the situation in this case.
See footnote 3.
The court clerk properly performed his duty of reading part B to the defendant in the absence of the judicial authority.
24 and 25 Vict. c. 90, § 37; Reg. v. Martin, L.R.1 Cr. C. 214 (1861).
This distinguishes State v. Brunori, 21 Conn. App. 331, 574 A.2d 222 (1990), in that two different judges were involved.
“Our procedure has been praised repeatedly for its fairness to defendants. See Spencer v. Texas, 385 U.S. 554, 567, 87 S. Ct. 648, 17 L. Ed. 2d 606, rehearing denied, sub. nom. Bell v. Texas, 386 U.S. 969, 87 S. Ct. 1016, 18 L. Ed. 2d 125 [1967]; Lane v. Warden, 320 F.2d 179, 183 (4th Cir. [1963]); Higgins v. State, 235 Ark. 153, 159, 357 S.W.2d 499 [1964], dicta rejected in Miller v. State, 239 Ark. 836, 841, 394 S.W.2d 601 [1965]; Heinze v. People, 127 Colo. 54, 58-59, 253 P.2d 596 [1953]; People v. Sickles, 156 N.Y. 541, 545, 51 N.E. 288 [1898].” State v. LaSelva, supra, 163 Conn. 233.