State v. Milner , 325 Conn. 1 ( 2017 )

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STATE OF CONNECTICUT v. MACK MILNER
(SC 19759)
Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.
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 attor-
ney, for the appellee (state).
Opinion
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 follow-
ing 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. Specifi-
cally, 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 defen-
dant repeatedly refused the staff’s demands to leave
the premises after he was initially evaluated. He also
was alleged to have acted aggressively and threaten-
ingly toward the police officers who had been sum-
moned 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 hospi-
tal’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 prosecu-
tor] 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. Cer-
tainly, 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) and Practice
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 unre-
viewable 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 defen-
dant’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.1 We disagree that there is a per se rule that non-
compliance 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 disqualifica-
tion. The trial court and the state were put on notice
of the claim, and neither objected to the motion’s form
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 pre-
served 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. See State 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. See State v. Bunker, 89 Conn. App.
605, 613, 874 A.2d 301 (2005) (‘‘A factual basis is neces-
sary to determine whether a reasonable person, know-
ing 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 administra-
tion 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. See State v. Santangelo, supra,
584–85; 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 by State v. Smith,
317 Conn. 338, 354–55, 118 A.3d 49 (2015).
This court has never held, however, that noncompli-
ance with Practice Book § 1-23 renders a claim of judi-
cial 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 pub-
lished in the newspaper the prior day. This court con-
cluded that the trial judge’s response to the motion,
following his denial of a request for an evidentiary hear-
ing; id., 750; in and of itself, ‘‘demonstrated such a per-
sonal interest in the case that his impartiality could
reasonably be questioned.’’ Id., 753. This court noted
that the claim was ‘‘reviewable . . . because it goes to
the defendants’ fundamental right to a fair trial.’’ Id.,
740. 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., 746.
In State v. Santangelo, supra, 205 Conn. 584, 601,
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 § 1-23.2
The defendant had filed a written motion for disqualifi-
cation, 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., 584–85.
We held that, ‘‘[i]n view . . . of the serious conse-
quences 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., 585. 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 accusa-
tions concerning the defendant.’’ Id., 601. Although we
noted that ‘‘[o]ral motions to disqualify simply do not
comport with acceptable procedure,’’ the court never-
theless considered the merits of the claim ‘‘[i]n view
. . . of the lengthy sentence imposed on the defendant
. . . .’’ Id.
Consistent with the aforementioned cases, this court
has reviewed unpreserved claims of judicial bias pursu-
ant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989); see State v. Rizzo, 303 Conn. 71, 115, 31
A.3d 1094 (2011), cert. denied, U.S. , 133 S. Ct.
133, 184 L. Ed. 2d 64 (2012); and the plain error doctrine.
See State v. D’Antonio, 274 Conn. 658, 670–74, 877 A.2d
696 (2005); Cameron v. Cameron, 187 Conn. 163, 168,
444 A.2d 915 (1982). Application of such review cannot
be squared with a per se rule that noncompliance with
the procedural requirements of Practice Book § 1-23
renders such a claim unreviewable. Indeed, such review
is authorized in part because a judge has an independent
obligation to ‘‘recuse herself or himself from a matter
. . . sua sponte . . . if such judicial authority is dis-
qualified from acting therein pursuant to [c]anon 3 (c)
[now rule 2.11] of the Code of Judicial Conduct . . . .
Practice Book § 1-22 (a).’’ (Footnote omitted; internal
quotation marks omitted.) State v. D’Antonio, supra,
670.
A number of Appellate Court cases have reviewed
claims of judicial bias despite acknowledging that the
moving party had failed to comply with the written
procedures required in Practice Book § 1-23. For exam-
ple, the Appellate Court has addressed the merits of a
denial of an oral motion for disqualification because of
the seriousness of the claimed bias. See, e.g., Tracey
v. Tracey, 97 Conn. App. 278, 279, 280 n.2, 903 A.2d 679(2006) (reviewing denial of oral motion for disqualifica-
tion alleging appearance of bias where trial judge who
decided dissolution action then ruled on motion for
fees to defend appeal, because of, inter alia, ‘‘gravity
of the matter’’); State v. Messier, supra, 16 Conn. App.
458 (reviewing denial of oral motion for disqualification
alleging appearance of bias from trial judge’s participa-
tion in pretrial phase of case because 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’’ [internal quotation marks omitted]);
see also Emerick v. Emerick, 170 Conn. App. 368, 373–
74, A.3d (2017) (reviewing denial of oral motion
for disqualification alleging trial judge was biased
against plaintiff on basis of his gender and status as
self-represented party, even after concluding that
record was inadequate for review as result of noncom-
pliance with § 1-23, because of ‘‘the grave nature of
[the] accusation’’). The Appellate Court also has
addressed the merits of a denial of an oral motion for
disqualification when the factual basis of the motion
was apparent from statements by the court in the record
and from the motion made shortly thereafter. See, e.g.,
In re Messiah S., 138 Conn. App. 606, 625, 53 A.3d 224(reviewing denial of oral motion for disqualification
made during trial in response to judge’s comments and
rulings), cert. denied, 307 Conn. 935, 56 A.3d 712 (2012);
Giordano v. Giordano, 9 Conn. App. 641, 643, 520 A.2d
1290 (1987) (reviewing denial of oral motion for disqual-
ification made on record immediately after in-chambers
conference on third day of six day trial where basis of
motion was comment made by judge during con-
ference).
The Appellate Court cases relied on by the state are
not to the contrary. In both State v. Weber, 6 Conn.
App. 407, 505 A.2d 1266, cert. denied, 199 Conn. 810,
508 A.2d 771 (1986), and Olson v. Olson, 71 Conn. App.
826, 804 A.2d 851 (2002), the moving party had made an
oral motion for disqualification, but the only evidence in
support of the allegation of an appearance of bias was
the disputed representations of counsel. In Weber, the
Appellate Court noted that ‘‘[r]epresentations made by
counsel are not evidence in the record upon which we
can rely,’’ and that ‘‘[t]he lack of a recusal hearing le[ft]
the record bereft of any factual basis upon which we
may base our review.’’ (Emphasis added.) State v.
Weber, supra, 413. The court thus concluded that
because ‘‘the defendant has failed to supply the neces-
sary record, as was his burden, we are precluded from
finding that the action of the trial judge in refusing to
recuse himself was clearly erroneous.’’ Id. In Olson, the
court reached the same conclusion. See Olson v. Olson,
supra, 831–32. Because the basis of the motions for
disqualification in those two cases relied solely on the
representations of counsel, it is evident why the
absence of an affidavit or an evidentiary hearing pre-
cluded appellate review. See State v. Santangelo, supra,
205 Conn. 585 (after noting absence of affidavit or evi-
dentiary hearing and that it would not rely on represen-
tations of defense counsel in its review, court looked
to representations of prosecutor and trial court itself
made on record to hold that trial court’s participation
in pretrial plea negotiations was minimal); State v. Bun-
ker, supra, 89 Conn. App. 613 (evidence of bias sufficient
to support claim of judicial disqualification must be
‘‘based on more than opinion or conclusion’’ [internal
quotation marks omitted]). To the extent that the state
suggests that Weber and Olson stand for the proposition
that noncompliance with Practice Book § 1-23 per se
precludes review of a denial of an oral motion for dis-
qualification, irrespective of whether the record con-
tains a sufficient factual basis in support of that motion,
we decline to adopt such a broad interpretation of
these cases.
Turning to the present case, we are persuaded that
the record is adequate for review, notwithstanding the
defendant’s failure to comply with Practice Book § 1-
23. As previously stated, the trial court acted on the
defendant’s oral motion in the absence of any objection
by the state, thus reflecting that both understood the
factual basis of the motion. See Tracey v. Tracey, supra,97 Conn. App. 280 n.2 (reviewing claim of judicial bias
despite noncompliance with § 1-23 because, inter alia,
‘‘court acted on the defendant’s oral motion without
objection by the plaintiff’’). Significantly, the factual
basis for the defendant’s claim is Judge Kwak’s own
representation, which he confirmed on the record, that
he previously had been employed as director of risk
management for the hospital. In the absence of any
dispute as to the factual basis of the disqualification
motion, the lack of an evidentiary hearing or formal
factual findings is not fatal to review of the defendant’s
claim. See Szypula v. Szypula, 2 Conn. App. 650, 653–
56, 482 A.2d 85 (1984) (claim of judicial bias requires
evidentiary hearing where factual dispute exists); see
also In re Messiah S., supra, 138 Conn. App. 625 and n.11
(reviewing claim of judicial bias despite noncompliance
with § 1-23, no evidentiary hearing, and no factual find-
ings, when record reflected undisputed facts that pro-
vided basis for claim). Finally, we note that the
defendant’s oral motion was made at the first available
opportunity to place it on the record. See Giordano v.
Giordano, supra, 9 Conn. App. 643. Given the limited
and undisputed nature of the defendant’s claim and
mindful of the timing of Judge Kwak’s disclosure, we
conclude that the record is adequate for our review.
This is not to say that the defendant’s noncompliance
with the requirements of Practice Book § 1-23 is without
consequence. As we explain in part II of this opinion,
our review is limited to those facts that are established
in the record. Moreover, we do not intend to suggest
that noncompliance with § 1-23 could never be fatal
to a trial court’s consideration of a claim of judicial
disqualification or to appellate review of such a claim.
We simply conclude that it is not fatal under the record
presented in this case.
II
We now turn to the merits of the defendant’s claim
that the trial court’s ruling denying his oral motion for
judicial disqualification was improper in two respects.
First, he contends that Judge Kwak applied the wrong
standard in deciding the disqualification motion insofar
as Judge Kwak considered only whether he could, in
fact, be impartial and thus failed to analyze whether
his impartiality might reasonably be questioned. Sec-
ond, the defendant contends that there was an appear-
ance of impartiality insofar as (1) the hospital was the
victim of the criminal trespass charge and Judge Kwak
had discretion to impose a sentence on the defendant
if he were found guilty of that crime, and (2) it was
reasonable to assume that the judge’s former position
as the director of risk management entailed devising
policies for the safety of patients and staff, which gave
Judge Kwak personal knowledge of facts relevant to
this matter. We disagree.
Rule 2.11 (a) (1) of the Code of Judicial Conduct
provides in relevant part that ‘‘[a] judge shall disqualify
himself . . . in any proceeding in which the judge’s
impartiality might reasonably be questioned including,
but not limited to, the following circumstances . . .
[t]he judge has a personal bias or prejudice concerning
a party or a party’s lawyer, or personal knowledge of
facts that are in dispute in the proceeding.’’ ‘‘In applying
this rule, [t]he reasonableness standard is an objective
one. Thus, the question is not only whether the particu-
lar judge is, in fact, impartial but whether a reasonable
person would question the judge’s impartiality on the
basis of all the circumstances. . . . Moreover, it is well
established that [e]ven in the absence of actual bias, a
judge must disqualify himself in any proceeding in
which his impartiality might reasonably be questioned,
because the appearance and the existence of impartial-
ity are both essential elements of a fair exercise of
judicial authority. . . . Nevertheless, because the law
presumes that duly elected or appointed judges, consis-
tent with their oaths of office, will perform their duties
impartially . . . the burden rests with the party urging
disqualification to show that it is warranted.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Rizzo, supra, 303 Conn. 118–19. Our review of the trial
court’s denial of a motion for disqualification is gov-
erned by an abuse of discretion standard. See Abington
Ltd. Partnership v. Heublein, 246 Conn. 815, 823–24,
717 A.2d 1232 (1998).
In the present case, Judge Kwak stated that he had
reviewed rule 2.11 of the Code of Judicial Conduct in
its entirety prior to defense counsel’s oral request for
disqualification. The plain language of rule 2.11 sets
forth the objective standard for determining whether
disqualification is warranted—i.e., whether the judge’s
impartiality might reasonably be questioned. Moreover,
before deciding the motion, Judge Kwak placed on the
record additional facts relevant to the objective inquiry
of whether an appearance of bias might exist, including
that he no longer worked for the hospital and that he
did not recognize any names on the prosecutor’s list of
potential witnesses. From this, it is fair to assume that
the trial court reflected on the appropriate standard and
rendered a conclusion consistent with its application of
an objective inquiry. The mere fact that Judge Kwak
used the first person when he stated, ‘‘I don’t believe
it’s going to be a conflict’’ and ‘‘I don’t see any reason
why I need to recuse myself,’’ does not establish that
he considered only whether he subjectively believed
that he could remain impartial. It is well settled that
‘‘[w]e do not presume error; the trial court’s ruling is
entitled to the reasonable presumption that it is correct
unless the party challenging the ruling has satisfied its
burden demonstrating the contrary.’’ State v. Crump-
ton, 202 Conn. 224, 231, 520 A.2d 226 (1987); see also
Orcutt v. Commissioner of Correction, 284 Conn. 724,
739 n.25, 937 A.2d 656 (2007) (‘‘in the absence of an
articulation—which the appellant is responsible for
obtaining—we presume that the trial court acted prop-
erly’’). Because nothing in the record indicates other-
wise, we conclude that the correct legal standard
was applied.
Turning to the defendant’s claim that Judge Kwak’s
impartiality reasonably might be questioned, we note
that, because the defendant declined to file an affidavit
or seek an evidentiary hearing, the record consists only
of Judge Kwak’s representations to counsel. Those rep-
resentations established the following facts: Judge
Kwak worked for the hospital as the director of risk
management prior to his appointment to the bench; he
no longer worked at the hospital in any capacity; and
he did not recognize the names of any of the state’s
potential witnesses. In our view, a reasonable person
presented with these facts would not doubt Judge
Kwak’s impartiality to the extent he would have the
discretion to impose a sentence on the defendant if he
were found guilty of the charge of criminal trespass.
Insofar as the defendant suggests that a reasonable
person would assume that Judge Kwak’s responsibili-
ties as the director of risk management would have
included creating policies and safeguards to prevent
criminal activity at the hospital, he has established no
facts in the record from which such an inference could
be drawn. The job title alone does not provide such
a basis. Judge Kwak may have been responsible for
assessing actuarial risk for insurance purposes or min-
imizing the risk of the spread of disease. Even if the
scope of Judge Kwak’s responsibilities could have
included or related to the prevention of criminal activ-
ity, the defendant has failed to establish when the judge
held that position and for how long. It was the defen-
dant’s burden to establish the factual basis that created
an appearance of bias or partiality. See State v. San-
tangelo, supra, 205 Conn. 584. The defendant clearly has
not met this burden. Accordingly, Judge Kwak properly
denied the defendant’s motion for disqualification.
The judgment is affirmed.
In this opinion the other justices concurred.
1
Practice Book § 1-23 also provides that ‘‘[t]he motion shall be filed no
less than ten days before the time the case is called for trial or hearing,
unless good cause is shown for failure to file within such time.’’ The state
does not challenge the timeliness of the defendant’s motion, effectively
conceding that the judge’s late disclosure constituted good cause for the
timing of the request.
2
The rule of practice in effect at that time, Practice Book § 997, imposed
the same requirements as Practice Book § 1-23.