State v. ERIC M.

• Decision Date: 26 October 2004
• Docket Number: No. 17074.,17074.
• Citation: 858 A.2d 767,271 Conn. 641
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. ERIC M.

858 A.2d 767

271 Conn. 641

STATE of Connecticut v. ERIC M.¹

No. 17074.

Supreme Court of Connecticut.

Argued September 21, 2004.

Decided October 26, 2004.

John R. Williams, New Haven, for the appellant (defendant).

Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Paul Rotiroti, assistant state's attorney, for the appellee (state).

NORCOTT, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

KATZ, J.

The sole issue in this certified appeal² is whether the Appellate Court properly concluded that the trial court had not abused its discretion in failing to recuse itself from the sentencing of the defendant, Eric M., following his judgment of conviction, rendered after a jury trial, of two counts of kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A) and (C),³ and one count each of unlawful restraint in the first degree in violation of General Statutes § 53a-95(a),⁴ assault in the second degree in violation of General Statutes § 53a-60(a)(1)⁵ and sexual assault in a spousal relationship in violation of General Statutes § 53a-70b(b).⁶ See State v. Eric M., 79 Conn.App. 91, 829 A.2d 439 (2003). The defendant claims that the Appellate Court improperly concluded that the trial court's reliance on evidence outside the record and comments prompted by its consideration of that evidence in the sentencing proceeding did not violate his due process rights guaranteed by the fourteenth amendment to the federal constitution and article first, § 8, of the state constitution. We conclude that the trial court did not abuse its discretion in declining to recuse itself. Accordingly, we affirm the judgment of the Appellate Court.

The Appellate Court opinion sets forth the following relevant facts that the jury reasonably could have, found. "At all times relevant to this proceeding, the victim, S, and the defendant were married. They separated in February, 2000, and divorce proceedings commenced. While the divorce was pending, the defendant and the victim had agreed that the victim would reside in the marital home [in Southington] and the defendant would stay at his parents' house.

"On May 9, 2001, the defendant told the victim that he would come to the marital home the following day to mow the lawn. When the victim arrived home on May 10, 2001, she did not see the defendant's car in the driveway. She entered the house and noticed that the entertainment center in the living room had been moved slightly and that the power was out in the room. When she went to the basement to check the fuse box, the defendant pounced on her and placed her in a choke hold. He then pinned her down and forced her to put on handcuffs, threatening to choke her if she did not comply. The defendant removed the victim's shirt and dressed her in jean shorts. He then tied her to a folding chair, using duct tape, rope and wire, and gagged her mouth with bandanas and rope.

"The defendant left the victim tied to the chair despite her cries and pleas until, at some point, he allowed her to use a bathroom. While the victim remained handcuffed and gagged, the defendant led her upstairs to the bathroom where he watched her use the toilet and then performed cunnilingus on her.

"The defendant attempted to tie the victim to the toilet, but she was able to run into the living room where the defendant tackled her on the couch. When she ran to the porch and attempted to open a storm door, the defendant caught her, and choked her until she lost consciousness and fell through the glass storm door.

"Next, the defendant brought the victim to the bedroom and tied her to the bed. When he left the room to clean up the broken glass from the shattered storm door, the victim was able to maneuver enough to dial 911 and to seek help from the telephone operator. Subsequently, the defendant returned and pulled the telephone from the wall.

"Benjamin Doerfler, a police officer with the Southington police department, arrived at the victim's residence at 6:55 p.m. in response to the 911 call. He entered the residence through the porch door, and noticed broken glass and blood. He announced his presence and heard a female scream. He followed the scream to the bedroom, kicked open the door and saw the defendant on top of the victim on the bed. The victim's hands and feet were bound, and she was crying and screaming. In conjunction with the arrest of the defendant, the police seized an eight millimeter videotape from a videocamera in the basement depicting the events that took place in the basement on the day in question." Id., at 93-95, 829 A.2d 439. Following the defendant's conviction, during the sentencing hearing, defense counsel argued essentially that the defendant should be given the four year sentence that had been proposed by the state prior to trial. He contended that, since the time that offer had been made, the court had heard the victim's testimony, watched the videotapes⁷ and read the presentence investigation report along with associated materials, and that the four year sentence was still appropriate. The trial court responded that it also had read a January 10, 2002 article published in the Hartford Advocate discussing the defendant's trial as well as the topics of bondage, domination and sadomasochism generally. In the article to which the court referred, "[t]he author ... indicated that he had spoken with the defendant by telephone, and that the defendant and the victim had practiced consensual bondage before and during their marriage. The article actually discussed one such encounter. The author also stated that the defendant saw himself as the real victim on the basis of his claim that he had been framed by his legally savvy wife in possible retaliation for his pursuit of a divorce." Id., at 109, 829 A.2d 439. The trial court informed the defendant that, in its view, the article had revictimized the victim. According to the trial court, the defendant's conduct demonstrated a lack of remorse and exacerbated the impact of the crime by exposing the victim to more public ridicule. The court declared to the defendant, "[l]et's just say my range changed a little bit after reading that article."

Defense counsel then moved for the court to recuse itself, claiming that the court's reliance on the article was improper and in violation of the defendant's first amendment rights. He added that any sentence greater than the four years that had been offered initially by the state would mean that the defendant was "being punished first and foremost for the crime of not bending the knee...." The court denied the motion and stated that it would consider a wide range of factors in determining the defendant's sentence and that the article was relevant to legitimate sentencing considerations. Defense counsel again objected to the trial court taking into account "things with which [the defendant] is not charged and which are not appropriate sentencing considerations," and concluded by saying, "I know Your Honor's going to do what you're going to do." Thereafter, the defendant expressly waived his right to allocution.

The court then heard from the state, followed by the victim advocate, the victim's mother and the victim, who read a prepared statement. Before imposing sentence, the court expressed to the defendant that, despite his attempts to undermine the victim's credibility, she had become the heroine, and instead of the defendant being the victim of her lies, he was "a loser that hooked on to her," like an abusive husband who gets his self-worth from belittling his wife. The court also remarked: "Well, now she's the heroine and you're the chump that's going to jail." Turning its attention to the victim, the court told her to go on with her life and to "[l]augh at him [because] ... [h]e's a loser." The defendant voiced no objection to those remarks, either in connection with his earlier motion, or as a basis for any other claim, and the court imposed an effective sentence of seventy-five years imprisonment, suspended after twenty-two years, and thirty-five years of probation with conditions.

On appeal to the Appellate Court, the defendant claimed, inter alia,⁸ that the court had based its sentence in part on improper considerations, specifically the Hartford Advocate article, and that its comments pertaining to the article demonstrated bias, which necessitated the court's recusal. State v. Eric M., supra, 79 Conn.App. at 109, 829 A.2d 439. The Appellate Court first determined that it was not improper for the trial court to refer to the article. Id., at 111, 829 A.2d 439. The court noted that at sentencing proceedings trial courts are not circumscribed by the rules of evidence but, rather, may rely on information that is hearsay in nature so long as the material has some indicia of reliability. Id. It further concluded that, because the defendant neither denied having made the statements in the article nor the accuracy of those statements, the court's reliance was proper. Id. In connection with the propriety of the trial court's comments, the Appellate Court excused the remarks as a human expression of indignation and expressly refused to condemn them.⁹ Id.

On appeal to this court, the defendant claims that any reliance on the newspaper article to increase the severity of his sentence was improper and that it was an abuse of discretion for the trial court to decline to recuse itself, pursuant to his request, following the court's comments that it had read the article and found it be to relevant to many of the sentencing considerations. Specifically, the defendant contends that the trial court's failure to recuse itself deprived him of his rights to a fair trial before an impartial judge.¹⁰ We disagree with the defendant that the trial court abused its discretion in considering the article for sentencing purposes. We also take this opportunity, however, to express our disapproval...