State v. Milner

• Decision Date: 28 March 2017
• Docket Number: SC 19759
• Citation: 325 Conn. 1,155 A.3d 730
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Mack MILNER

325 Conn. 1

155 A.3d 730

STATE of Connecticut

v.Mack MILNER

SC 19759

Supreme Court of Connecticut.

Argued December 6, 2016

Officially released March 28, 2017

James E. Mortimer, with whom, on the brief, was Michael D. Day, for the appellant(defendant).

Lisa A. Riggione, senior assistant state's attorney, with whom were David M. Carlucci, assistant state's attorney, and, on the brief, Gail P. Hardy, state's attorney, for the appellee(state).

Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.

McDONALD, J.

Following an incident at Saint Francis Hospital and Medical Center in Hartford, the defendant, Mack Milner, was convicted of one count of interfering with an officer in violation of General Statutes § 53a–167a (a), one count of criminal trespass in the first degree in violation of General Statutes § 53a–107 (a)(1), and two counts of disorderly conduct in violation of General Statutes § 53a–182 (a)(2) and (3).The issue before this court is whether the judge who presided over the criminal trial abused his discretion in denying the defendant's oral motion for disqualification following the judge's disclosure that he previously had been employed by the hospital.We conclude that the limited facts in the record provide no basis to conclude that the trial court abused its discretion.

The record reveals the following undisputed facts.In addition to the four counts of which he was convicted, the state charged the defendant with one count each of the crimes of reckless endangerment in the second degree in violation of General Statutes § 53a–64 (a) and disorderly conduct in violation of § 53a–182 (a)(1).All of the charges stemmed from the defendant's conduct both inside and outside of the emergency department at the hospital, where he sought treatment for scratches sustained in an altercation earlier that evening.Specifically, the defendant was alleged to have nearly hit a hospital security guard with his vehicle when arriving at the drop off area for the emergency department and, after entering the emergency room, to have been loud and disruptive as he waited for treatment.The defendant repeatedly refused the staff's demands to leave the premises after he was initially evaluated.He also was alleged to have acted aggressively and threateningly toward the police officers who had been summoned to escort the defendant from the premises.

Judge Kwak presided over the trial.Jury selection took place on June 19, 2014.On June 23, 2014, the day before the state was set to commence presentation of its case-in-chief, an off-the-record meeting occurred between Judge Kwak and counsel.The following day, immediately before the commencement of evidence, defense counsel made an oral motion to disqualify Judge Kwak, citing the judge's disclosure in chambers the prior day that he had previously served as the hospital's director of risk management.The defendant argued that the hospital was the victim of the criminal trespass charge, and that Judge Kwak's prior employment would give rise to the appearance of bias insofar as he would have discretion to impose a sentence in the event the defendant were found guilty of that charge.The state declined to be heard on the matter.

In response to the defendant's motion, Judge Kwak stated: "I've consulted the [Code of Judicial Conduct], rule 2.11 specifically, regarding disqualifications, and I've read everything there and I don't believe it's going to be a conflict.

"I don't work for [the][h]ospital.I did not recognize any of the names that were mentioned by [the prosecutor] as possible witnesses.Yes, it does involve [the][h]ospital, to the extent that the incident allegedly occurred there, but [the hospital] is really not a party here.

"It's the [s]tate versus [the defendant].Therefore, I don't see a reason why I need to recuse myself.Certainly, I'm going to be fair and impartial to both parties.Therefore, your motion is denied."

After the matter was submitted to the jury, the court declared a mistrial on the reckless endangerment count and one of the disorderly conduct counts.The jury returned a verdict of guilty on the charge of criminal trespass, as well as the three other charges.Judge Kwak thereafter imposed a total effective sentence of two years imprisonment, execution suspended after one year, and two years of probation.The defendant appealed from the judgment to the Appellate Court, and the appeal was subsequently transferred to this court pursuant to General Statutes § 51–199 (c)andPractice Book§ 65–1.

On appeal, the defendant claims that Judge Kwak abused his discretion in declining to disqualify himself.The defendant asserts that Judge Kwak improperly based his decision solely on the question of actual bias and that the judge's prior employment created an appearance of bias that required his disqualification.The state contends that the defendant's claim is unreviewable because his motion for disqualification was procedurally defective.We disagree with the state as to the issue of reviewability and reject the defendant's claim on the merits.

I

We begin with the question of whether the defendant's claim is amenable to review.The state points to the defendant's failure to comply with Practice Book§ 1–23, insofar as that rule requires that a motion for judicial disqualification be in writing and accompanied by an affidavit setting forth the facts relied on and a certificate of counsel attesting that it was made in good faith.¹We disagree that there is a per se rule that noncompliance with the rule's procedural requirements is fatal to review.We further conclude that the defendant's claim is amenable to review under the circumstances of the present case.

Initially, we note that the defendant's claim of judicial bias was preserved via his oral motion for disqualification.The trial court and the state were put on notice of the claim, and neither objected to the motion's form or the defendant's good faith basis for so moving.The trial court's ruling squarely addressed the ground on which the defendant's oral motion was made.

As a general matter, in determining whether a preserved claim is amenable to review, it is well settled that the appellant is obligated to present a record that contains the requisite facts necessary to resolve the claim.SeeState v. Santangelo , 205 Conn. 578, 584, 534 A.2d 1175(1987).In the present case, the record must reveal whether disqualification was warranted under the circumstances.SeeState v. Bunker , 89 Conn.App. 605, 613, 874 A.2d 301(2005)("A factual basis is necessary to determine whether a reasonable person, knowing all of the circumstances, might reasonably question the trial judge's impartiality. ...It is a fundamental principle that to demonstrate bias sufficient to support a claim of judicial disqualification, the due administration of justice requires that such a demonstration be based on more than opinion or conclusion."[Internal quotation marks omitted.] ), appeal dismissed, 280 Conn. 512, 909 A.2d 521(2006).Compliance with the procedures set forth in Practice Book§ 1–23 ensures that facts are placed on the record that are necessary for appellate review.SeeState v. Santangelo , supra, at 584–85, 534 A.2d 1175;State v. Messier , 16 Conn.App. 455, 458, 549 A.2d 270, cert. denied, 209 Conn. 829, 552 A.2d 1216(1988), overruled on other grounds byState v. Smith , 317 Conn. 338, 354–55, 118 A.3d 49(2015).

This court has never held, however, that noncompliance with Practice Book§ 1–23 renders a claim of judicial bias per se unreviewable.Indeed, the appellate case law suggests a more fact specific approach.In Papa v. New Haven Federation of Teachers , 186 Conn. 725, 746–48, 444 A.2d 196(1982), this court held that the trial judge improperly declined to disqualify himself after an oral motion for recusal had been made on the ground that the judge had made statements concerning the case in an interview with a reporter that was published in the newspaper the prior day.This court concluded that the trial judge's response to the motion, following his denial of a request for an evidentiary hearing;id., at 750, 444 A.2d 196; in and of itself, "demonstrated such a personal interest in the case that his impartiality could reasonably be questioned."Id., at 753, 444 A.2d 196.This court noted that the claim was "reviewable ... because it goes to the defendants' fundamental right to a fair trial."Id., at 740, 444 A.2d 196.Although there was no challenge to the form of the motion, the issue was brought to this court's attention insofar as the defendants also had challenged the denial of a written motion for recusal"concern[ing] a separate ground for recusal [that was] basically unrelated" to the oral motion.Id., at 746, 444 A.2d 196.

In State v. Santangelo , supra, 205 Conn. at 584, 601, 534 A.2d 1175, however, this court squarely addressed this issue, reviewing claims that the trial court improperly had denied two motions for recusal despite the fact that neither complied with the requirements of Practice Book§ 997, the predecessor to Practice Book§ 1–23.²The defendant had filed a written motion for disqualification, unaccompanied by either a factual affidavit or a certificate of counsel attesting that it was made in good faith, alleging that the trial judge had actively participated in pretrial plea negotiations.Id., at 584–85, 534 A.2d 1175.We held that, "[i]n view ... of the serious consequences of the defendant's conviction and the fact that his claim goes to his fundamental constitutional right to a fair trial, we will review the available record despite its procedural deficiencies."Id., at 585, 534 A.2d 1175.The defendant also had made an oral motion to disqualify the trial judge from the sentencing proceeding after the judge received and read a letter from a police officer that "contained unsubstantiated, inflammatory comments and accusations concerning the defendant."Id., at 601, 534 A.2d 1175.Althoug...