State v. Herman K.

Decision Date24 May 2022
Docket NumberAC 44317
Parties STATE of Connecticut v. HERMAN K.
CourtConnecticut Court of Appeals

212 Conn.App. 592
275 A.3d 1233

STATE of Connecticut

AC 44317

Appellate Court of Connecticut.

Argued January 31, 2022
Officially released May 24, 2022

275 A.3d 1234

Pamela S. Nagy, supervisory assistant public defender, for the appellant (defendant).

Melissa E. Patterson, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Seth R. Garbarsky, senior assistant state's attorney, for the appellee (state).

Bright, C.J., and Elgo and Flynn, Js.


212 Conn.App. 594

Before this court is the defendant's appeal from the judgment of conviction, rendered following a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and carrying a

275 A.3d 1235

dangerous weapon in violation of General Statutes § 53-206 (a). On appeal, the defendant claims that the trial court, Vitale, J .,1 improperly denied the defendant's motion for disqualification at his sentencing hearing based upon what he contends was the appearance of partiality.2 We disagree and affirm the judgment of the trial court.

We conclude that the court did not abuse its discretion in denying the defendant's motion for recusal. The court denied the defendant's motion for a mistrial, ruling that it was untimely in light of the rules of practice. The court also ruled that his retrial was unwarranted because of a probation officer's presentence report's mention of a rejected plea offer because it would have no bearing or impact on the sentence imposed. Judge Vitale then treated the motion as a motion to recuse and denied that relief.

The following facts reasonably could have been found by the jury. In May, 2018, the defendant had a fight with another man at a twenty-four hour convenience store

212 Conn.App. 595

in New Haven. The victim in this case, who is the defendant's nephew, was present at the time, but did not intervene on the defendant's behalf in that fight. Thereafter, on the night of June 16, 2018, the victim was hanging around the convenience store after 2 a.m. A red truck drove by and later returned and parked in the convenience store lot. The defendant exited the truck and, without warning, stabbed the victim in the back. When the victim abruptly turned around to confront his attacker, whom he quickly realized was his uncle, the victim was stabbed in the arm by him. The victim, who was bleeding profusely, ran 1360 feet and collapsed on the street. He was taken to a hospital by ambulance where he was treated by surgeons for injuries to his lung, diaphragm, spleen, and large intestine, as well as for a fractured rib, blood loss, and pooling of blood in his lung. The victim sustained life-threatening injuries.

The defendant was arrested and charged with assault in the first degree causing serious physical injury in violation of § 53a-59 (a) (1) and carrying a dangerous weapon in violation of § 53-206 (a). Subsequent to his arrest and prior to trial, a Superior Court pretrial proceeding was held before Judge Patrick Clifford at which the defendant rejected a plea offer of twelve years of incarceration, execution suspended after five years, and a period of probation.3 In November, 2019, the defendant went to trial before a jury. On November 15, 2019, the jury returned verdicts of guilty on both counts. The court then deferred the imposition of sentence pending the filing of the required presentence investigation report by the Office of Adult Probation.

The following procedural history occurred postverdict. On January 30, 2020, the presentence investigation

212 Conn.App. 596

report had been completed and the defendant appeared in court for sentencing. At that time, Judge Vitale noted that he would strike from that report a reference to the plea offer made to the defendant by Judge

275 A.3d 1236

Clifford. Judge Vitale termed the report's single reference to a rejected pretrial plea offer "inappropriate" and stated it would have "absolutely no impact or bearing on the ... sentence to be imposed ...." The judge also indicated on the record that he had no involvement in any plea negotiations and lacked knowledge about whether any occurred. Defense counsel then stated that she would file a motion for mistrial and a new trial. That motion was denied by the court on March 10, 2020. The court then interpreted the motion for mistrial and a new trial as a motion for recusal and denied that motion to recuse.

The court, in denying the motion, stated that the reference to a pretrial plea offer before another judge should not have been included in the probation officer's presentence investigation report. It noted that the reference did not result from any impropriety on the part of the court or either counsel. The court noted that it had ordered the improper reference struck and redacted from the report. The court also stated that it had no participation in any pretrial plea offers, so that there was no violation of the rule set forth in State v. Niblack , 220 Conn. 270, 280, 596 A.2d 407 (1991). In Niblack , our Supreme Court held that a judge who participates in pretrial plea negotiations is disqualified from further proceedings if the offer is not accepted. Id.

At sentencing, Judge Vitale heard from the prosecutor, the defendant's trial counsel, the defendant's daughter and sister, and the defendant himself and evaluated the presentence investigation report except for the portion he ordered struck. Judge Vitale recounted that he had presided over several days of trial and heard the testimony of numerous witnesses who described the

212 Conn.App. 597

stabbing by the defendant of his nephew in his back and arm, the damage to various parts of the victim's body, and the medical attention and sequela with which the victim now lives as a result of the vicious assault to which the defendant subjected him.

The court then proceeded to sentence the defendant. The court first reviewed the details of the defendant plunging a large knife into the victim's back without warning and then slashing the victim's arm as the victim attempted to defend himself. The court then described the victim running for his life for approximately 1300 feet, bleeding profusely in a bloody trail, which was later discovered by the police. After being transported to the hospital, the victim underwent several hours of surgery to deal with damage to his lung, diaphragm, large intestine, and a rib fracture, which caused the victim to be hospitalized for a significant period of time. The court found that the crime showed "a cold and cunning premeditation," which resulted in long-lasting injuries from which the victim nearly died. The court then reviewed the victim's attitude, who was seeking significant punishment, as reported by the victim's advocate. The court also reviewed the defendant's background, including his physical and mental health history, sparse work record, and his record of eleven prior convictions, ten of which were misdemeanors, and three prior violations of probation. The court also considered common goals of sentencing, including rehabilitation, punishment, deterrence, and protection of the public. Judge Vitale then sentenced the defendant to twenty years of incarceration, the execution of which was to be suspended after service of twelve years, followed by three years of probation on the charge of assault in the first degree. On the charge of carrying a dangerous weapon, the defendant was sentenced to one year of incarceration to be served concurrently with the sentence of assault. The defendant's total effective sentence was

212 Conn.App. 598

twenty years of incarceration, suspended

275 A.3d 1237

after twelve years, five years of which was a minimum mandatory term, and three years of probation.

On appeal, the defendant claims that when the court learned, from reading the presentence investigation report, of a prior plea offer of twelve years of incarceration suspended after eight years that the state had made to the defendant, it became obligated to recuse itself, not because of actual bias, but because there was an appearance of partiality. In order to preserve the integrity of the judicial sentencing process, he claims that a new sentence before a different judge is required.4

The defendant further argues that "[a] reasonable person might believe [that] the court felt an obligation to sentence [the] defendant to something higher than what was offered given the appraisal of the case by a fellow judge" and that "a reasonable person could believe this was simply something [the court] could not easily ignore." The defendant also argues that the disclosure of the terms of a pretrial plea offer resulting from a pretrial hearing before Judge Clifford created an "anchoring effect." The defendant defines the anchoring effect, to wit, as "a cognitive bias that describes...

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