Opinion
The defendant, Luis Ortiz, appeals from the judgment of conviction, rendered after a trial to the court, of assault in the first degree with intent to cause serious physical injury in violation of General Statutes § 53a-59 (a) (1), kidnapping in the second degree in violation of General Statutes § 53a-94, threatening in violation of General Statutes § 53a-62 (a) (1), carrying a dangerous weapon in violation of General Statutes § 53-206 (a) and criminal violation of a protective order in violation of General Statutes § 53a-223 (a).
The court reasonably could have found the following facts. The victim, Lourdes Suarez, was a woman with whom the defendant has lived and conceived three children. The defendant and the victim both worked for a West Hartford toy store and were required to work late. On the evening of November 14, 2000, the victim and the defendant were on their way home from work when the victim became frightened that the defendant might inflict harm on her because he was angry about missing a meeting with his drug dealer. Seeking help, she stopped at a police substation on Affleck Street in Hartford. After the victim rang the outside doorbell and no one answered, the defendant put his arms around her waist, and picked her up off of the ground and carried her out of the substation’s doorway. The defendant showed her an open box cutter and then grabbed her by her jacket as she attempted to run away. He held her wrists together with one hand while he used his other hand to cut her face numerous times. The victim then fell to the ground, and the defendant again held her wrists with one hand while he used his other hand to cut her deeply on her hand and leg. Two individuals arrived at the scene, and the defendant fled. The victim was required to spend four days in a hospital, including two days in intensive care. She received multiple stitches and required surgery on her face to repair the nerves that had been damaged by the attack. She has since suffered from posttraumatic stress disorder and has attempted suicide on five occasions.
The defendant elected to testify at trial. When asked whether he denied injuring the victim, he replied: “[N]o .... From the beginning I’ve been saying . . . that I
The following procedural history is pertinent. The defendant had first elected a jury trial on the charges that are now the subject of this appeal and one additional charge of attempt to commit assault in the first degree on which he was found not guilty. The court, Miaño, J., expressed its concern that the defendant’s chosen manner of dress might affect his right to a fair trial. While the case was still to be heard by a jury, the defendant appeared dressed in a red prison jumpsuit and expressed his reluctance to change out of it. In addressing the defendant on this subject, the court stated, “I had a brief discussion with the lawyers this morning, and they said — really, I think this is — it’s good if you have any — if somebody admits their involvement, I think that should be factored into any kind of sentence or penalty if they’re involved. However, now, when we have a panel, I don’t want you to say anything that might be an admission or a confession or anything concerning, admitting to your commission of the crime. Because
Although at that juncture the court had not invited the defendant to say anything about the case, the defendant responded: “I’m not saying I’m not guilty, and it’s not because I’m proud of it. Like I told the judges before, just because I’m saying that I’m guilty doesn’t mean that I’m proud of it. Because I’m not proud of hurting my — the woman that I thought I was going to marry for the rest of my life, the mother of my kids. . . . You know, but I just said the truth. I tell the truth, maybe the judge will have some consideration and maybe give me less time. I know that what I did is something serious. I’m not denying that. You know. I could have done something worse . . . .”
The court again cautioned the defendant not to say anything incriminatory in front of the jury, stating, “[w]hatever negotiations there were, I don’t want to know, but apparently, there was no meeting of the minds. Apparently, my guess is, the state was looking for more time than you are, but that’s their call. I can’t force the state to accommodate you or any defendant in what the offer is going to be. So, now we’re past that juncture about the negotiation of the case, on what you’re going to get, what you’re not going to get. Are you going to get more, are you going to get less; we’re past that. You have a right to a trial. So, this is your trial. . . . What I am doing is asking you, I’m begging you not to say anything in front of the jury about whether or not you’re involved. You have a right to a
The defendant later waived his right to a jury trial and elected to be tried by the court, which convicted him on all charges but attempt to commit assault in the first degree. The defendant now appeals from his conviction.
I
We first address the defendant’s claim that the convictions must be reversed because, although the defendant never moved to recuse the trial judge, the judge had an obligation to recuse himself, sua sponte, where he had heard the defendant, prior to trial, make admissions on the record relating to his guilt. We disagree.
The defendant concedes that this issue is unpreserved but urges us that it is nonetheless reviewable under the plain error doctrine.
Although the defendant’s claim meets Golding’s first two prongs because the record is adequate for review and the claim is of constitutional magnitude; id., 239; we conclude that the defendant’s claim fails because he cannot satisfy Golding’s third prong, which requires him to show that a constitutional violation clearly exists and clearly deprived him of a fair trial.
We first observe that the record before us indicates that the defendant had made admissions to several other judges before appearing before Judge Miaño. The defendant also advised the court that he had been offered by the state, but had not accepted, a twelve year sentence in exchange for his guilty plea.
The defendant argues that principles of fairness and justice require a trial judge to recuse himself from a trial when he knows of inculpatory admissions made by the defendant and when the judge is the person responsible for deciding the defendant’s guilt or inno
In reviewing these issues, we employ our long accepted reasonable person standard. “Canon 3C (1) of the Code of Judicial Conduct requires a judge to disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. The reasonableness standard is an objective one. Thus, the question is not only whether the particular judge is, in fact, impartial but whether a reasonable person would question the judge’s impartiality on the basis of all the circumstances. Papa v. New Haven Federation of Teachers,
“Even in the absence of actual bias, a judge must disqualify himself in any proceeding in which his impartiality might reasonably be questioned, because the appearance and the existence of impartiality are both essential elements of a fair exercise of judicial authority.” (Internal quotation marks omitted.) State v. Webb,
We must first determine whether the judge’s knowledge of the particular facts in this case would require recusal under canon 3 (c) of the Code of Judicial Conduct. Preliminarily, we observe that the defendant’s admissions were part of a pattern that preceded Judge Miano’s involvement with the case and continued after he presided, in which the defendant wanted to admit that he assaulted the victim and to express contrition in the hope that this would be considered in imposing his punishment. The defendant was intent on telling his story and expressing contrition to the arresting officer, several judges before whom he had appeared prior to his trial, and to the same trial judge, both pretrial and during his trial by the court. In determining whether recusal was required, we first look to the text of canon 3 (c), which states that a judge should disqualify himself or herself in a proceeding in which the judge’s impartiality reasonably might be questioned, including but not limited to, situations in which the judge possesses “personal knowledge of disputed evidentiary facts concerning the proceeding . . . .” (Emphasis added.) Code of Judicial Conduct, canon 3 (c) (1) (A). In interpreting statutory language, no word is to be regarded as surplus-age. See State v. Walton,
We also note that the judge’s conduct in the present case conforms to the extrajudicial source rule, adopted by the United States Supreme Court, which provides that claimed bias or prejudice caused by knowledge of occurrences during a court proceeding is not grounds for disqualification. See United States v. Grinnell Corp.,
The defendant contends that a line of cases in which a judge has engaged in prior plea bargaining are most analogous to the factual scenario presented here and require recusal. We disagree. The defendant cites State v. Falcon,
We next address the state’s argument that the defendant, through his words and his conduct, waived any right to claim on appeal that the judge should have disqualified himself. After a thorough canvass of the defendant’s decision during jury selection to give up his right to a jury trial and to elect a court trial, the judge told the defendant: “I’ve heard some comments that you made yesterday, and I’m saying that I’m not going to consider them at all, and I certainly will not.” The court then told the defendant that he could not later claim, “Well, judge, you heard these comments, you’re prejudiced against me.” To this, the defendant responded, “I will not say that.” The court further stated to the defendant, “I want the record to be 100 percent clear. You understand that.” The defendant replied that he understood. Judge Miaño then asked the defendant whether he understood that he likely would be the judge presiding over the nonjury trial, and the defendant replied that he did. The court further inquired whether he still wanted to waive his right to a jury trial, to which the defendant responded that he did. At that time, the defendant was represented by counsel. We agree with the state that the effect of the verbal exchange between
Our conclusion is also in harmony with General Statutes § 51-39 (c), which provides in relevant part that “[w]hen any judge ... is disqualified to act in any proceeding before him, he may act if the parties thereto consent in open court.” Although the defendant argues that the trial judge was required to disqualify himself sua sponte, he has provided us with no authority that would require us to find such an action to be necessary when both parties have consented in open court to allow the judge to hear the case.
Finally, when a defendant claims that a judicial error is of constitutional magnitude, if he establishes that such error constituted a clear constitutional violation, it becomes the state’s burden to prove that the error was harmless beyond a reasonable doubt. State v. Golding, supra,
II
We next turn to the defendant’s claim that our statute proscribing kidnapping in the second degree, § 53a-94 (a), is unconstitutionally vague under the fifth and fourteenth amendments to the United States constitution and the constitution of Connecticut, article first, § 8, as applied to this defendant. Again, this issue is unpreserved, and the defendant seeks review under State v. Golding, supra,
“[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Kolender v. Lawson,
We apply these principles to the particular statutory language in light of the facts of this case. General Statutes § 53a-94 (a) provides: “A person is guilty of kidnapping in the second degree when he abducts another person.”
Our kidnapping statutes do not require proof of restraint for any length of time or asportation for any distance to establish an “abduction.” State v. Green,
Although we can conceive of factual situations in which overcharging a defendant with kidnapping based on “the most minuscule movement would result in an absurd and unconscionable result”; (internal quotation marks omitted) State v. Jones, supra,
We next address the defendant’s argument that because the assault could not have been accomplished without confinement, an absurd or unconscionable result is reached by finding the defendant guilty of kidnapping. We disagree. Although we are aware that other jurisdictions have determined that the crime of kidnapping must be found to be severable from, and not incidental to, an underlying crime for a defendant to be found guilty; see, e.g., People v. Levy,
Because we conclude that the defendant’s actions were clearly proscribed by § 53a-94, as interpreted by our Supreme Court, we hold that, as applied to the facts of this case, the statute is not unconstitutionally vague, and the defendant has not established a clear violation of his constitutional rights., We therefore reject the defendant’s argument.
Ill
We next turn to the defendant’s challenge to the condition of his probation prohibiting him from contacting his children until they reach age eighteen. The defendant claims that this “no contact” condition is illegal.
The state has raised a threshold issue as to whether this claim is reviewable. It maintains that the defendant’s claim is wholly speculative because the condition he challenges may never come into effect because the children probably will have reached the age of majority by the time the defendant is released from incarceration. The defendant counters that this issue is ripe for review and points out that this court has in fact reviewed a condition of probation consisting of restitution to be completed by the end of a third year of probation despite the fact that the defendant was still incarcerated. See State v. Thornton,
The state also argues that the defendant is not deprived of a remedy because he can challenge probation conditions in a probation revocation proceeding after he is arrested for violating this condition. We agree with the defendant that the matter is ripe. “[I]t is not necessary that [a] petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.” Steffel v. Thompson,
Finally, the defendant makes a strong argument that failure to appeal directly from a judgment containing probation conditions could result in a waiver of his right to challenge such conditions at a later time. See United States v. Johnson,
The defendant did not preserve this issue by inteiposing any objection to the no contact provision at the time he was sentenced. The defendant claims it is reviewable under State v. Golding, supra,
The defendant first argues that there is no authority under General Statutes § 53a-30 to impose such a condition. Section 53a-30 (a) of the General Statutes, entitled “Conditions of probation and conditional discharge,” lists sixteen separate conditions which might be imposed by the court. The defendant indicates that subdivision sixteen is the only part of the statute that could relate to the conditions imposed. Section 53a-30 (a) (16) provides that the court may require a probationer to “satisfy any other conditions reasonably related to the defendant’s rehabilitation,” and, the defendant contends, this condition does not so reasonably relate. We disagree. The comment of the commission to revise criminal statutes, which first proposed adoption by the legislature of our present criminal code over thirty years ago, as to § 53a-30 provides in relevant part: “This sec
At the sentencing hearing, the prosecutor told the court that the victim had relayed to him detailed accounts of the defendant’s abuse of the children, including one instance when he had put a sock in the mouth of his one year old child and put tape over it to stop the baby from crying. In addition, the state alerted the court that the department of children and families
Although there was no evidentiary hearing conducted with regard to these allegations, “due process does not require that information considered by the trial judge prior to sentencing meet the same high procedural standard as evidence introduced at trial. Rather, judges may consider a wide variety of information. . . . [T]he trial court may consider responsible unsworn or out-of-court information relative to the circumstances of the crime and to the convicted person’s life and circumstance. . . . It is a fundamental sentencing principle that a sentencing judge may appropriately conduct an inquiry broad in scope, and largely unlimited either as to the kind of information he may consider or the source from which it may come. United States v. Tucker,
However, the defendant also attacks the breadth of the order, which proscribes all contact with his children. We acknowledge that “[cjhoices about marriage, family life, and the upbringing of children are among associational rights [the United States Supreme Court] has ranked as of basic importance in our society . . . rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.” (Citation omitted; internal quotation marks omitted.) M.L.B. v. S.L.J.,
IV
The defendant’s final claim is that the court’s sentence of five years of incarceration for the crime of carrying a dangerous weapon in violation of § 53-206 (a) is illegal. We agree.
The state concedes that the defendant’s claim of illegality is well founded. Section 53-206 (a) provides in relevant part that, a defendant “shall be fined ... or imprisoned not more than three years or both . . . .” A sentence that exceeds statutory limits is illegal. Cobham v. Commissioner of Correction,
The judgment is reversed as to the defendant’s condition of probation ordering no contact with his children until they reach the age of majority and the case is remanded with instructions upon resentencing to appropriately tailor the condition in a manner consistent with this opinion and in accord with the defendant’s constitutional rights. The judgment is also reversed as to the sentence on the conviction of carrying a dangerous weapon in violation of § 53-206 (a) and the case is remanded for resentencing in accordance with law. The judgment is affirmed in all other respects.
In this opinion the other judges concurred.
Notes
The defendant also was charged with attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a) (1), of which the court found him not guilty.
The sentence was as follows: Count one, assault in the first degree, fifteen years, execution suspended after ten years, five years of probation with special conditions; count two, kidnapping in the second degree, fifteen years, execution suspended after ten years, five years of probation consecutive to count one; count four, threatening, one year to run concurrent with counts one and two; count five, carrying a dangerous weapon, five years to run concurrent with count one and two; and count six, violation of a protective order, one year concurrent with counts one and two.
“To prevail under the plain error doctrine, the defendant must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . This doctrine is not implicated and review of the claimed error is not undertaken unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Hooks,
We include this history because it is pertinent to the defendant’s penchant for making statements of this nature on the record to judges before whom he had appeared. The defendant has not claimed on appeal that the court should have disqualified itself because the defendant disclosed to the court his earlier plea negotiations, but rather confines his claim to the court’s knowledge of the defendant’s prior statements of guilt.
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 a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding . . . .” The language of the analogous portion of the federal disqualification statute, 28 U.S.C. § 455, provides in relevant part: “(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding
General Statutes § 54-33f prohibits a,judge who signed a search warrant from hearing a motion to suppress arising out of the execution of that warrant. General Statutes § 51-183c prohibits a judge who presided over a court trial from retrying a case where a new trial is granted or the judgment is reversed. That statute also carries a similar prohibition against the same judge presiding where a new trial is granted in a jury case. No statute prohibits a judge from acting under the circumstances of this case.
General Statutes § 53a-91 (2) defines “abduct” as “[restraining] a person with intent to prevent his liberation by either (A) secreting or holding him in a place where he is not likely to be found, or (B) using or threatening to use physical force or intimidation.” Further, “restrain” is defined by General Statutes § 53a-91 (1) as “restrictfing] a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent . . . .”
See, for example, the Illinois Appellate Court’s adoption of the following standard to determine whether an asportation or detention rises to the level of kidnapping as a separate offense: “(1) the duration of the asportation or detention; (2) whether the asportation or detention occurred during the commission of a separate offense; (3) whether the asportation or detention that occurred is inherent in the separate offense; and (4) whether the asportation or detention created a significant danger to the victim independent of that posed by the separate offense.” People v. Jackson,
See also Stanley v. Illinois,
Although Golding’s third prong also normally requires a determination of whether the violation deprived the defendant of a fair trial, the challenged violation occurred during the posttrial sentencing phase. Therefore, we need not analyze whether the defendant’s right to a fair trial was violated by the imposition of the condition of probation.
See also Practice Book § 43-22, which provides that “[t]he judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.”