Cameron v. Cameron

• Decision Date: 18 May 1982
• Citation: 187 Conn. 163,444 A.2d 915
• Court: Connecticut Supreme Court
• Parties: Barbara D. CAMERON v. Gene CAMERON.

Page 915

444 A.2d 915

187 Conn. 163

Barbara D. CAMERON v. Gene CAMERON.

Supreme Court of Connecticut.

Argued Feb. 9, 1982.

Decided May 18, 1982.

Warren P. Joblin, Westport, for appellant (defendant).

Barbara S. Miller, Bridgeport, with whom, on brief, was Frederick A. Freedman, Bridgeport, for appellee (plaintiff).

Before SPEZIALE, C. J., and PETERS, HEALEY, ARMENTANO and SHEA, JJ.

SHEA, Associate Justice.

In this appeal from a judgment dissolving the marriage of the parties the defendant has raised several issues relating generally to the division of property and the financial awards. The only question we shall consider, however, is whether the trial judge sua sponte should have declared a mistrial after an altercation arose with trial counsel. Our conclusion that such action was essential makes it unnecessary to consider those issues relating to the merits of the decree of dissolution.

The subject of the litigation was a fairly routine dissolution action in which neither party blamed the other for the breakdown of the marriage, which they agreed was irretrievable. They had been married for five years. There were no children of the marriage. Both parties were employed, the wife as a school teacher and the husband as the captain of an ocean-going ship.

After a minor skirmish over an inaccurate affidavit, ¹ a controversy eventually developed at the trial over a claim made by counsel for the plaintiff that the defendant's affidavit did not include $4000 in cash which he had testified during a deposition taken on December 8, 1980, was in an attache case at his home. When counsel for the defendant explained that the $4000 was shown in the affidavit as savings bank deposits, the court proceeded to demand that a confirming deposit slip be produced and stated further: "If not, counselor, either you or your client is in serious trouble in perpetrating or attempting to perpetrate a fraud upon this Court." Counsel asked whether the court was alluding to his involvement. The court replied, "I said, either you or your client."

After the court ordered that the case be continued until the next day, counsel for the plaintiff mentioned that the defendant was scheduled to leave for sea very soon and might be called at any moment and he requested that the defendant be instructed to appear in court when the trial resumed. The court responded, "[t]omorrow at 11:00 o'clock with the deposit slip. That's the order of this Court, under the compulsion of this Court, Mr. Joblin, and you have had trouble with this Court before in some of your clients absconding--now, just let me finish. You can get on the record all you want. I don't want that to happen in this case. I want that man here tomorrow at 11:00 o'clock. Now, put on the record all you want." Counsel for the defendant then stated that he had never done anything unprofessional "before your Honor or any other Judge." The court responded, "[t]hat's questionable." Counsel then charged that the court was evidencing "an obvious personal bias" against him, an accusation which the court denied. The rather heated dialogue contained in the footnote ² then transpired in which the court several times stated that the defendant had lied under oath.

The next morning when the trial resumed the defendant produced a deposit slip on which the date stamped by machine had been crossed out and an earlier date written in ink above with initials. The court said that the matter could be checked by an investigator from the office of the state's attorney but also expressed the view that the slip had been "tampered with." The court asked counsel for the defendant about an initial on the slip and when counsel refused to answer the question but insisted on making a statement he was found in contempt of court and fined $100. A heated argument occurred at this point which is recited in the footnote. ³

The court then invited the defendant, who had not testified at the trial previously, to take the witness stand. After he was sworn as a witness and had given his name and residence, the defendant was addressed by the court in the following fashion: "You are held in contempt of this Court." When the defendant's subsequent testimony conflicted with the report of the investigator who had been requested to explore the matter, the court indicated that no perjury charge would be presented against the defendant but observed that it still entertained some reservation about the defendant's credibility. At the conclusion of the trial the court stated its reluctance to pursue the contempt charge against counsel for the defendant and vacated its judgment of contempt after receiving his apology.

We would not ordinarily review on appeal a claim that a trial judge should have disqualified himself or declared a mistrial at a certain stage of the proceedings when no such request was made during the trial. Practice Book § 3063. Even where a proper ground for disqualification exists, it must be asserted seasonably or it will be deemed to have been waived. Krattenstein v. G. Fox & Co., 155 Conn. 609, 616, 236 A.2d 466 (1967); State v. Kohlfuss, 152 Conn. 625, 631, 211 A.2d 143 (1965). The defendant's counsel did assert that the court had shown personal bias toward him and that this affected his client's "ability to feel that he is getting a fair hearing." He did not, however, move for a mistrial or expressly suggest that the judge disqualify himself. We are dealing here, however, with an accusation of prejudice against a judge, "which strikes at the very core of judicial integrity and tends to undermine public confidence in the established judiciary...." Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 501, 101 A.2d 500 (1953). For this reason, which implicates basic concepts of fair trial, we have decided to invoke our authority in the interests of justice to review "plain error" not properly preserved in the trial court. Practice Book § 3063.

"No more elementary statement concerning the judiciary can be made than that the conduct of the trial judge must be characterized by the highest degree of impartiality. If he departs from this standard, he casts serious reflection upon the system of which he is a part. A judge is not an umpire in a forensic encounter. Strong v. Carrier, 116 Conn. 262, 263, 164 A. 501 [1933]. He is a minister of justice. Peiter v. Degenring, 136 Conn. 331, 338, 71 A.2d 87 [1949]. He may, of course, take all reasonable steps necessary for the orderly progress of the trial. State v. Schneider, 158 Wash. 504, 515, 291 P. 1093 [1930].... In whatever he does, however, the trial judge should be cautious and circumspect in his language and conduct." Felix v. Hall-Brooke Sanitarium, supra, 101 A.2d 501-502. A judge "should be scrupulous to refrain from hearing matters which he feels he cannot approach in the utmost spirit of fairness and to avoid the appearance of prejudice as regards either the parties or the issues before him." Glodenis v. American Brass Co., 118 Conn. 29, 39, 170 A. 146 (1934). "A judge, trying the cause without a jury, should be careful to refrain from any statement or attitude which would tend to deny the defendant a fair trial." State v. Gionfriddo, 154 Conn. 90, 97, 221 A.2d 851 (1966). "It is his responsibility to have the trial conducted in a manner which approaches an 'atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding.' " State v. Echols, 170 Conn. 11, 13, 364 A.2d 225 (1975), quoting Glasser v. United States, 315 U.S. 60, 82, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

It is quite evident from our review of the trial transcript that a serious departure from these high standards occurred in the court below. The minor criticism of counsel for the erroneous statement of his client's earnings in the financial affidavit, though phrased rather indelicately, was justified. "The trial judge may be under a duty to reprimand counsel in order to protect the rights of litigants." Annot., 94 A.L.R.2d 826, 833, II § 3[a]. A judge also has a duty to see that no falsehood or other fraud is perpetrated in court. General Statutes § 1-25; Code of Professional Responsibility DR 7-102(B)(1) and (2). Once he declares that he believes a party or a witness has been deceitful, however, he cannot continue to preside in his role of impartial arbiter. In the present case it is clear that the trial judge on several occasions before the defendant took the witness stand stated his belief that either he or his counsel was "attempting to perpetrate a fraud" upon the court and that he had "lied under oath" at his deposition. When the defendant came to the stand, at the invitation of the trial judge, he was immediately held...