State v. Weber
| Decision Date | 11 March 1986 |
| Docket Number | No. 2072,2072 |
| Citation | 505 A.2d 1266,6 Conn.App. 407 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Ernest WEBER. |
John R. Williams, New Haven, for appellant (defendant).
Christopher Malany, Deputy Asst. State's Atty. with whom, on brief, was James Radda, Former Deputy Asst. State's Atty., for appellee (State).
Before DUPONT, C.J., and SPALLONE and BIELUCH, JJ.
The defendant is appealing from the judgment of his conviction after a jury trial of the crimes of breach of the peace in violation of General Statutes § 53a-181, and interfering with a police officer in violation of General Statutes § 53a-167a. 1 The jury could reasonably have found the following facts. On October 7, 1981, Alfred Amendola and David Adams, two part-time New Haven police officers, were on foot patrol, walking their assigned beats. They were in uniform and, in the course of their duty, had ticketed a number of illegally parked cars.
At about 9 p.m., the patrolmen observed an automobile parked on a pedestrian crosswalk near the corner of Chapel and Park Streets. The vehicle was obstructing the crosswalk and the rear of the car jutted out into the traffic lane of Park Street. The car was parked opposite a bar called Ron's Place. Amendola asked the doorman at Ron's Place if he knew who owned the car, but received no reply. Amendola ticketed the car for a parking violation and then continued on patrol with Adams. After the officers had proceeded a short distance up the street, they were approached by Wayne Johnson, who asked them about the parking violation. Along with Johnson, the officers walked back to ascertain which vehicle was the subject of Johnson's inquiry. They established that the defendant's vehicle was involved and explained to Johnson that the car had to be moved. Johnson left the officers and entered Ron's Place.
The defendant was then inside Ron's Place and had been there since approximately 6:30 p.m. During that time, he had consumed a quantity of beer and blackberry brandy. Earlier that morning, the defendant had appeared in court because of a motor vehicle arrest by Yale University and New Haven police that had occurred the previous week. When the defendant exited the bar, the officers were about twenty feet away, proceeding along Chapel Street. The defendant began to shout at the police officers. Amendola testified that the defendants first words were: Amendola recalled that the defendant also yelled: "[Y]ou are a fucking asshole." Adams stated that this initial tirade was punctuated by the epithet "Motherfuckers."
The patrolmen walked back to where the defendant was standing to "see what the problem was." The defendant appeared to be intoxicated; his breath smelled of alcohol, his words were slurred and spittle sprayed from his mouth as he shouted at the officers. The officers tried to explain to the defendant the nature of the parking violation and the proper procedure for challenging the validity of the ticket. The defendant evidently was not satisfied with the explanation given to him. The officers also told the defendant that as long as he was there, he should move the automobile off the crosswalk or it would be towed away. Johnson, who was present, urged the defendant to move his car. The defendant responded by moving his car about five feet, which satisfied the officers that the vehicle was no longer in violation and they started to walk away.
The defendant for a second time began screaming at Amendola and Adams, saying: Amendola interpreted this outburst as a challenge, testifying: "He wanted to fight us." The officer again walked back, and in an obvious attempt to placate the defendant and to cool down the situation stated to him: The defendant conceded at the trial that the officers "took great pains to ignore [him]." Johnson, taking the defendant by the arm, drew him back inside the bar.
Again the officers resumed their beat, but had proceeded only about one hundred feet when they heard the sound of running footsteps approaching them from the rear. The officers turned and found that the defendant was only a few feet away, "yelling at the top of his voice," and shouting at the officers: The defendant also called the officers "cowards."
By this time, a crowd of about twenty people had gathered to observe the defendant's confrontations with the police. The crowd included both patrons of Ron's Place, who had come out of the bar, and passersby. The crowd had become polarized and vocal. According to Amendola, some were cheering the defendant on, and others were cautioning him to get back inside the bar before he got into trouble.
At this point, Adams decided it had become necessary to arrest the defendant for breach of the peace. Amendola put his arm around the defendant and told him he was under arrest. The defendant knocked Amendola's arm away, exclaiming: "You fucking pig, you are not going to arrest me."
The officers again informed the defendant that he was under arrest. Amendola took the defendant's right arm and placed a handcuff on his wrist, and Adams took the defendant's left arm. The officers placed the defendant against the side of a building in order to conduct a patdown search for weapons. At this point, the defendant pulled free from Adams and shoved Amendola into the side of the building, injuring the officer's right hand. The defendant kneed Amendola in the groin, causing the officer to fall to the ground still grasping the defendant's arm. The defendant fell over onto the officer and a struggle ensued, during the course of which Amendola called for assistance on his police radio, which the defendant knocked from his hand. With the assistance of Adams and other police officers who had arrived on the scene, the defendant was subdued, placed in a prisoner van and transported to police headquarters.
The defendant claims that the court erred (1) in its refusal to grant his oral motion of recusal, (2) in failing to find that the defendant's conduct was constitutionally protected free speech, (3) in failing to find General Statutes §§ 53a-181(a)(5) and 53a-167a unconstitutional as vague and overbroad, and (4) in denying the defendant's motion for acquittal as to the charges in counts two and three.
Regarding the defendant's claim of error based on the trial judge's refusal to disqualify himself, we note that the defendant has not followed the procedural requirements necessary for us effectively to review the actions of the trial court. See Practice Book § 997. Our concern here is whether the defendant's failure to follow the procedure required by Practice Book § 997 has precluded our consideration because the record does not contain sufficient information upon which we may base our review. We answer in the affirmative.
In this matter, the defendant claims bias and prejudice on the part of the trial court, W. Sullivan, J., because of remarks attributed to the judge. When the case was reached for trial, there were certain pretrial motions pending in the file, having been heard by another judge, Chernauskas, J., but not yet acted upon. Judge Sullivan took the file to Judge Chernauskas and left it with him. Some twenty-five minutes later, the file was returned to Judge Sullivan, who noted that Judge Chernauskas had denied the motions. At this point, defense counsel made an oral motion that Judge Sullivan disqualify himself. Defense counsel stated that there was a civil suit pending, brought by the defendant against the New Haven police, and that: "[Y]our Honor's position on this and all cases during your period of [criminal] jury [duty] in this court has been that ... motions to dismiss should not be granted and nolles should not be entered and [accelerated rehabilitation] should not be approved unless there is some reasonable assurance that the police will not be sued...." Judge Sullivan had allegedly expressed this opinion in chambers some three months prior to the trial. He had previously defended police officers in civil suits prior to his appointment to the bench. Defense counsel also stated that "the policy has been announced both in my presence and privately from time to time." Defense counsel contended that such a "policy" created "an appearance of impropriety, terrible appearance of impropriety," which extended to "Judge Chernauskas, as well, because of [Judge Sullivan's] ruling...."
There was an absolute failure on the part of counsel to conform to the requirements of Practice Book § 997 which reads in pertinent part: "A motion to disqualify a judicial authority shall be in writing and shall be accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification and a certificate of the counsel of record that the motion is made in good faith." This provision creates a mandatory procedure to be followed by any party seeking to recuse a judge. See State v. Cook, 183 Conn. 520, 521-23, 441 A.2d 41 (1981). At no time in this case did the defendant file a written motion to recuse, an affidavit setting forth factual allegations, or a certificate of good faith by counsel as mandated by § 997 of the rules of practice. Furthermore, the defendant never requested nor demanded a hearing in order to present evidence to support his claim of judicial recusal.
The disqualification of a judge under circumstances as are present here is governed by Canon 3(C) of the Code of Judicial Conduct. ...
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