State v. Messier, 4855

• Decision Date: 27 September 1988
• Docket Number: No. 4855,4855
• Citation: 549 A.2d 270,16 Conn.App. 455
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Gary MESSIER.

Page 270

549 A.2d 270

16 Conn.App. 455

STATE of Connecticut v. Gary MESSIER.

No. 4855.

Appellate Court of Connecticut.

Argued May 6, 1988.

Decided Sept. 27, 1988.

Temmy Ann Pieszak, Asst. Public Defender, with whom, on the brief, was Joette Katz, Public Defender, for appellant (defendant).

Leah Hawley, Deputy Asst. State's Atty., with whom, on the brief, was John T. Redway, State's Atty., for appellee (state).

Before DUPONT, C.J., and SPALLONE and EDWARD Y. O'CONNELL, JJ.

EDWARD Y. O'CONNELL, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of one count of burglary in the first degree in violation of General Statutes § 53a-101(a)(2) and 53a-8, and two counts of robbery in the second degree in violation of General Statutes § 53a-135(a)(1). The defendant's eleven enumerated claims of error fall into five general categories. He claims that the trial court erred (1) in refusing to recuse itself after presiding over pretrial negotiations, (2) in denying his motion for acquittal, (3) in admitting evidence of uncharged misconduct, (4) in its charge to the jury, and (5) in denying the defendant a fair trial due to its treatment of defense counsel throughout the course of the proceedings. We find error in part.

The jury could reasonably have found the following facts. On or about August 14, 1984, the defendant and Tammy Towler-Davis broke into the apartment of the victim, assaulted him and demanded to know the whereabouts of certain illegal drugs (quaaludes) and a sum of money which were discovered missing from the apartment the defendant shared with Towler-Davis and his codefendant, Peter Mannetho. ¹ The victim relinquished a handful of quaaludes that he had taken from Nancy Gill, the defendant's former housemate. The victim claimed that Gill had taken them from the defendant. Having failed to uncover any money, the intruders left with the drugs.

On August 21, 1984, ² the defendant, Towler-Davis and Mannetho, all of whom had been drinking, returned to the victim's apartment seeking the return of the quaaludes or payment therefor. Upon opening the door, the victim was assaulted by the defendant who forced his way into the apartment. The defendant also assaulted the victim's visitor, Richard Knudsen, knocking him to the floor. As the defendant and the victim argued in the living room, Towler-Davis approached Knudsen, who remained on the kitchen floor, and took money from his wallet. She and Mannetho then searched the apartment for other valuables.

The incident ended with the arrival of the police. No arrests occurred because the victim convinced the police that the altercation they had come to investigate had ended. The defendant and his cohorts left the victim's apartment shortly thereafter, taking with them a leather jacket and a stereo as collateral for the return of the missing money and drugs. The defendant was subsequently arrested for his involvement in the two incidents.

I

The defendant first claims that the trial judge erred in refusing to recuse himself in light of his participation in the pretrial phase of the case. The defendant made this request on the morning the trial was scheduled to commence, arguing that the judge's involvement in the preliminary discussions prevented the defendant from receiving a fair trial. In response to the defendant's request for a rectification of the trial court record, the trial court, Mulcahy, J., filed certain findings regarding the refusal of Judge Fishman, who had presided over the defendant's pretrial negotiations and trial, to recuse himself. ³

"It is axiomatic that the burden of establishing a record that a judicial impropriety has occurred which demonstrates or gives the appearance of bias or partiality so as to require recusal rests with the party who claims the occurrence of such an impropriety." State v. Santangelo, 205 Conn. 578, 584, 534 A.2d 1175 (1987). Compliance with Practice Book § 997 ⁴ affords the moving party the opportunity to compile such a record. State v. Maluk, 10 Conn.App. 422, 426, 475, 523 A.2d 928 (1987). Here, however, the defendant failed to comply with the Practice Book requirement by making only an oral request. Our Supreme Court, in State v. Santangelo, supra, recognized that despite failure to adhere to procedural requirements, "the serious consequences of the defendant's conviction and the fact that his claim goes to his fundamental, constitutional right to a fair trial [permits us to review] the available record despite its procedural deficiencies." Id., 205 Conn. at 585, 534 A.2d 1175; State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973). We therefore will review the defendant's claim.

If the available evidence had indicated that the trial court had actively participated in the plea negotiations during the pretrial conference, his recusal would have been mandatory. State v. Fullwood, 194 Conn. 573, 580, 484 A.2d 435 (1984); State v. Gradzik, 193 Conn. 35-37, 475 A.2d 269 (1984). "[O]ur rules of practice expressly authorize the trial judge to do no more than to indicate whether a proposed agreed disposition may be accepted or rejected.... Active involvement by trial judges in plea negotiations has frequently been criticized." (Citations omitted.) State v. Fullwood, supra, 194 Conn. at 580-81, 484 A.2d 435.

The dangers of active participation by trial judges in plea negotiations are obvious. " 'In the first place ... [such participation] is likely to impair the trial court's impartiality. The judge who suggests or encourages a particular plea bargain may feel a personal stake in the agreement (and in the quick disposition of the case made possible by the bargain) and may therefore resent the defendant who rejects his advice.... In the second place, judicial participation in plea discussions creates a misleading impression of the judge's role in the proceedings. "As a result of his participation, the judge is no longer a judicial officer, or a neutral arbiter. Rather, he becomes or seems to become an advocate for the resolution he has suggested to the defendant." United States v. Werker, [535 F.2d 198, 203 (2d Cir.), cert denied, 429 U.S. 926, 97 S.Ct. 330, 50 Ed.2d 296 (1976) ].' " State v. Gradzik, supra, 193 Conn. at 47, 475 A.2d 269, quoting United States v. Adams, 634 F.2d 830, 840-41 (5th Cir.1981).

An examination of the record, including Judge Mulcahy's findings, indicates that recusal was not required in the present case. The case was pretried by Judge Fishman in early February, 1985, for approximately twenty minutes. The state's attorney outlined the criminal conduct charged and defense counsel offered mitigating information. The extent of Judge Fishman's participation included asking the state's attorney, "What are you looking for?" and responding to the effect that the state's offer "sounded reasonable." The defendant rejected the offer and the trial was eventually scheduled for September 18, 1985. On the morning of September 18, the settlement offer was repeated to the defendant in the court's presence and was again rejected. Shortly thereafter defense counsel orally requested the court to recuse itself. ⁵

Having reviewed the record, we find that the trial court's pretrial involvement in this case was minimal and did not rise to the level of "active participation" as described in State v. Fullwood, supra. "In the absence of [a damaging] record, we have no basis for concluding that the trial judge's pretrial activities so impaired, or appeared to impair, his ability to act as a judicial officer or a neutral arbiter that it was error to deny the motion for disqualification." Id., 194 Conn. at 581, 484 A.2d 435.

II

The defendant next contends that the trial court erred in denying his motion for a judgment of acquittal of the first degree burglary and second degree robbery charges that arose out of the August 14, 1984 incident. He claims that the evidence demonstrated that his only intent on that date was to reclaim his property which he believed the victim had stolen. We do not concede the existence of property rights in contraband, but it is not necessary to ponder the question in view of our disposition of this claim of error.

At trial, the jury was presented with conflicting evidence concerning the ownership of the quaaludes. The victim testified that Gill had told him that the drugs belonged to the defendant. On direct examination, however, the defendant denied ownership and stated that the drugs belonged to Towler-Davis, who had received them as collateral for a loan. It was the defendant's claim that his apartment had been burglarized sometime before midafternoon on August 13, 1984, and that Towler-Davis' quaaludes and his $1200 were taken. He believed that the victim was involved in the theft and visited him in order to retrieve the money. Hence, the defendant argues that he lacked the intent to commit larceny or any other crime.

General Statutes § 53a-21 provides in pertinent part that "[a] person is justified in using reasonable physical force upon another person ... when and to the extent he reasonably believes it necessary to regain property which he reasonably believes to have been acquired by larceny within a reasonable time prior to the use of such force...."

First, even if the jury believed that the defendant was the owner of any of the property at issue and that his actions on August 14, 1984, were motivated by his desire to reclaim his property, the jury could not have reasonably concluded that his actions were "reasonable" as required under General Statutes § 53a-21. A defendant in pursuit of the repossession of his property cannot burglarize another's home and assault him with impunity. We conclude, therefore, that a defendant cannot expect to avoid a conviction by employing such a defense. See State v. Woolfolk, 8 Conn.App. 667, 672, 517 A.2d 252 (1986), cert. denied, 202 Conn. 802, 519 A.2d 1207 (1987).

Further, we conclude,...