Joyner v. Commissioner of Correction, (AC 17716)

• Decision Date: 02 November 1999
• Docket Number: (AC 17716)
• Citation: 55 Conn. App. 602,740 A.2d 424
• Court: Connecticut Court of Appeals
• Parties: ANGELO JOYNER v. COMMISSIONER OF CORRECTION

55 Conn. App. 602

740 A.2d 424

ANGELO JOYNER v. COMMISSIONER OF CORRECTION

(AC 17716)

Appellate Court of Connecticut.

Argued March 3, 1999.

Officially released November 2, 1999.

Lavery, Landau and Dupont, Js.

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Christopher A. Alexy, assistant state's attorney, for the appellant (respondent). Denise Ansell, special public defender, for the appellee (petitioner).

Opinion

DUPONT, J.

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)¹ was deprived of an impartial fact finder when the trial court denied the commissioner's motion to recuse the judge. We conclude that the motion was properly denied and affirm the judgment of the habeas court.

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, 1991,² and subsequently was sentenced to fifty years in prison.

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 heirs in a lump sum, but gave them cash from time to time, which sums allegedly did not equal the heirs' total inheritance. In his amended habeas corpus petition, the petitioner alleges that Dixon refused to give him the full sum of his inheritance so that the petitioner could hire a different attorney to represent him in the criminal matter, that Dixon claimed the funds had been garnished and that Dixon coerced the petitioner into letting Dixon represent him in the criminal matter.

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.³ The petitioner's amended habeas corpus petition further alleges that he was denied the effective assistance of counsel in violation of his rights under the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. The petitioner claims in his petition that Dixon had a conflict of interest in representing him in the criminal trial, the full extent of which was unknown to the petitioner or the trial court,⁴ and that the conflict adversely affected Dixon's representation of him. The petitioner also claims in his petition that Dixon's performance fell below the ordinary skill expected from attorneys practicing criminal law and lists seventeen specific reasons to substantiate the ineffective assistance of counsel claim, which relate to the conduct of the petitioner's defense, including evidentiary errors, the failure to introduce evidence and to present a defense of consent to the sexual assault charges, and the failure to preserve claims for appellate review.

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 obtained records from Dixon's bank via a subpoena ordered by the court. During her investigation of the petitioner's allegations of Dixon's conflict of interest, the special public defender discovered information leading her to believe that Dixon had misappropriated the petitioner's inheritance and reported her findings to the habeas judge. The habeas court, Rittenband, J., on the basis of the representations of the special public defender and testimony from an officer of a bank where Dixon had numerous accounts, referred the allegations to the statewide grievance committee and the chief state's attorney.

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 beneficiaries of the estate of the petitioner's father had not been paid their inheritance. In response to a letter from the state's attorney's office inviting the habeas judge's questions about the investigation, the judge telephoned the prosecutor assigned to investigate the matter and questioned the thoroughness of the investigation.

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. The most recent Supreme Court case of which we are aware on the subject of recusal is Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 717 A.2d 1232 (1998). In that case, the court held that an ex parte visit of the trial judge to the site of property directly involved in the litigation before him violated canon 3 (c) (1) of the Code of Judicial Conduct⁵ because the visit created an appearance of impropriety, which allowed the judge's impartiality reasonably to be questioned. Id., 825-26. The court reiterated the test for such a violation of the canon. "Any conduct that would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge's impartiality might reasonably be questioned is a basis for the judge's disqualification. Thus, an impropriety or the appearance of impropriety... that would reasonably lead one to question the judge's impartiality in a given proceeding clearly falls within the scope of the general standard .... The question is not whether the judge is impartial in fact. It is simply whether another, not knowing whether or not the judge is actually impartial, might reasonably question his ... impartiality, on the basis of all of the circumstances.... Papa v. New Haven Federation of Teachers, 186 Conn. 725, 745-46, 444 A.2d 196 (1982); Dubaldo v. Dubaldo, 14 Conn. App. 645, 649, 542 A.2d 750 (1988)." (Internal quotation marks omitted.) Abington Ltd. Partnership v. Heublein, supra, 820.

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...