Joyner v. Commissioner of Correction

Opinion DUPONT, J. The sole issue in this appeal from the granting of a petition for a writ of habeas corpus is whether the respondent commissioner of correction (commissioner)1 was deprived of an impartial fact finder when the trial court denied the commissioner’s motion to recuse the judge. We conclude that the motion was properly denied and affirm the judgment of the habeas court. The following facts are relevant to this appeal. In March, 1989, the petitioner, Angelo Joyner, was arrested and charged with one count of assault in the first degree, three counts of sexual assault in the first degree and one count of kidnapping in the first degree. Attorney Samuel Dixon represented the petitioner at his criminal trial. Dixon’s trial strategy was to assert a defense of guilty by reason of mental disease or defect. The petitioner was convicted on all counts in June, 1991,2 and subsequently was sentenced to fifty years in prison. Prior to the representation of the petitioner in the criminal matter, Dixon had represented the estate of the petitioner’s father in a wrongful death action. The wrongful death action ended with a settlement, the proceeds of which became the corpus of the deceased’s estate. Dixon also served as the administrator of the estate. A judge of probate approved the estate accounting and ordered the estate distributed in shares of nearly $23,000 each to the petitioner and his brothers and sister. Dixon did not distribute the estate funds to the [604] heirs in a lump sum, but gave them cash from time to time, which sums allegedly did not equal the heirs’ total inheritance. In his amended habeas coipus petition, the petitioner alleges that Dixon refused to give him the full sum of his inheritance so that the petitioner could hire a different attorney to represent him in the criminal matter, that Dixon claimed the funds had been garnished and that Dixon coerced the petitioner into letting Dixon represent him in the criminal matter. Just prior to the issuance of the distribution order, the victim of the petitioner’s criminal acts commenced a civil action against the petitioner and served a prejudgment remedy garnishment order on Dixon, as administrator of the estate. Dixon undertook to represent the petitioner in the civil action and represented to the victim’s attorney that he had no funds belonging to the petitioner because they had been distributed.3 [605] The petitioner’s amended habeas corpus petition further alleges that he was denied the effective assistance of counsel in violation of his rights under the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. The petitioner claims in his petition that Dixon had a conflict of interest in representing him in the criminal trial, the full extent of which was unknown to the petitioner or the trial court,4 and that the conflict adversely affected Dixon’s representation of him. The petitioner also claims in his petition that Dixon’s performance fell below the ordinary skill expected from attorneys practicing criminal law and lists seventeen specific reasons to substantiate the ineffective assistance of counsel claim, which relate to the conduct of the petitioner’s defense, including evidentiary errors, the failure to introduce evidence and to present a defense of consent to the sexual assault charges, and the failure to preserve claims for appellate review. After the petitioner obtained a special public defender for the trial of his amended petition for a writ of habeas corpus, Dixon refused to cooperate with the special public defender by failing to turn over his file and other records. The habeas judge became involved in the pretrial discovery motions because Dixon failed to cooperate with the petitioner’s counsel. Dixon failed to obey a subpoena served on him by the commissioner, who was acting by order of the habeas court. The habeas court then issued a capias, which Dixon successfully evaded. The special public defender eventually [606] obtained records from Dixon’s bank via a subpoena ordered by the court. During her investigation of the petitioner’s allegations of Dixon’s conflict of interest, the special public defender discovered information leading her to believe that Dixon had misappropriated the petitioner’s inheritance and reported her findings to the habeas judge. The habeas court, Rittenband, J., on the basis of the representations of the special public defender and testimony from an officer of a bank where Dixon had numerous accounts, referred the allegations to the statewide grievance committee and the chief state’s attorney. Before evidence was heard on the habeas petition, the commissioner moved to recuse the habeas judge claiming that he was biased against Dixon. The alleged bias, according to the commissioner, concerned the referrals to the chief state’s attorney and to the statewide grievance committee for investigation of Dixon’s conduct. The thrust of the claim was that the habeas court could not view Dixon, the presumed witness, impartially after such referrals. The motion was referred by the habeas judge to another trial court. That court, Klaczak, J., denied the motion, concluding that the habeas court had not prejudged Dixon but had simply set investigations in motion. Judge Klaczak assumed, as did the commissioner, that Dixon would be a witness during the habeas trial. After the second day of evidence in the habeas trial, the commissioner moved for a mistrial claiming that the habeas judge had made remarks indicating a lack of impartiality toward the petitioner. The motion was denied. Later, during the trial, the habeas judge learned that the chief state’s attorney’s office had declined to prosecute Dixon because of a problem with the statute of limitations and because there was no evidence that the [607] beneficiaries of the estate of the petitioner’s father had not been paid their inheritance. In response to a letter from the state’s attorney’s office inviting the habeas judge’s questions about the investigation, the judge telephoned the prosecutor assigned to investigate the matter and questioned the thoroughness of the investigation. The commissioner was made aware of the telephone call by the habeas judge, and the commissioner again moved for the habeas judge to recuse himself and for a mistrial. The motion for recusal and mistrial was referred to yet another trial court, Hon. Harry Hammer, judge trial referee, for review. That court denied the motion, giving its reasons for the denial in a signed thirty-three page transcript of the trial court’s opinion. The trial court stated that the controlling issue in a motion to recuse is whether a reasonable person, aware of all the circumstances surrounding the proceeding, would question the judge’s impartiality. The court also stated that the determination of whether impartiality had been compromised in this case related to the court’s ability to weigh and consider fairly the testimonial evidence, if any, of Dixon. The court denied the motion without prejudice and permitted renewal of it if there came a point in the habeas proceeding when Dixon’s credibility became an issue, that is, if Dixon eventually testified. The motion to recuse never was renewed and, in fact, Dixon never testified during the habeas hearing. After the commissioner’s motion was denied without prejudice, Dixon was subpoenaed to testify. He appeared with counsel and invoked his fifth amendment privilege not to testify. The habeas judge stated that he found Dixon lacking in credibility because of an adverse inference drawn from Dixon’s failure to testify, and not from any testimony by Dixon. [608] The most recent Supreme Court case of which we are aware on the subject of recusal is Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 717 A.2d 1232 (1998). In that case, the court held that an ex parte visit of the trial judge to the site of property directly involved in the litigation before him violated canon 3 (c) (1) of the Code of Judicial Conduct5 because the visit created an appearance of impropriety, which allowed the judge’s impartiality reasonably to be questioned. Id., 825-26. The court reiterated the test for such a violation of the canon. “Any conduct that would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned is a basis for the judge’s disqualification. Thus, an impropriety or the appearance of impropriety . . . that would reasonably lead one to question the judge’s impartiality in a given proceeding clearly falls within the scope of the general standard .... The question is not whether the judge is impartial in fact. It is simply whether another, not knowing whether or not the judge is actually impartial, might reasonably question his . . . impartiality, on the basis of all of the circumstances. . . . Papa v. New Haven Federation of Teachers, 186 Conn. 725, 745-46, 444 A.2d 196 (1982); Dubaldo v. Dubaldo, 14 Conn. App. 645, 649, 542 A.2d 750 (1988).” (Internal quotation marks omitted.) Abington Ltd. Partnership v. Heublein, supra, 820. Any factual disputes involved in a claim of judicial bias may require an evidentiary hearing and, if so, it should be conducted before another judge. Szypula v. Szypula, 2 Conn. App. 650, 653, 482 A.2d 85 (1984). It has long been settled that the bias or prejudice sufficient to result in a disqualification “must stem from an extrajudicial source and result in an opinion on the merits [609] on some basis other than what the judge learned from his participation in the case.” United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S. Ct. 1698, 16 L. Ed. 2d 778 (1966); Barca v. Barca, 15 Conn. App. 604, 613, 546 A.2d 887, cert. denied, 209 Conn. 824, 552 A.2d 430 (1988); Szypula v. Szypula, supra, 655. The standard for appellate review of whether the facts require disqualification is whether the court’s discretion has been abused. Abington Ltd. Partnership v. Heublein, supra, 246 Conn. 824. The question then becomes whether an objective observer reasonably would doubt the judge’s impartiality given the circumstances. Id., 825-26. If an objective observer, in view of all of the facts would reasonably doubt the court’s impartiality, the court’s discretion would be abused if a motion to recuse were not granted. “In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) Glass v. Peter Mitchell Construction Leasing & Development Corp., 50 Conn. App. 539, 543, 718 A.2d 79, cert. granted on other grounds, 247 Conn. 938, 723 A.2d 317 (1998) (appeal withdrawn July 6, 1999). The outcome of Abington Ltd. Partnership rested on its particular facts because each such case must be evaluated on its own facts. Abington Ltd. Partnership v. Heublein, supra, 246 Conn. 826. An objective observer in that case reasonably could have questioned the judge’s impartiality because he had, during' the trial, visited the site on his own, used a private road to gain access, gained entrance to a private dwelling on pre-textual grounds, initiated a conversation with the owner of the private dwelling' about the litigation, listened to [610] information the owner had, failed to disclose his identity until leaving the premises and failed to inform trial counsel of the visit and conversation. Id., 825. Only two other Supreme Court cases, using the same test for the application of canon 3 (c) (1), concluded that the trial judge should have been recused. In Papa v. New Haven Federation of Teachers, supra, 186 Conn. 746-47, the court determined that the judge’s comments to a news reporter, while the case he was hearing was pending, as to the propriety of illegal teachers strikes, which was the subject of the case in question, would cause a reasonable person to question the judge’s impartiality. In the second case, Cameron v. Cameron, 187 Conn. 163, 170-71, 444 A.2d 915 (1982), the court held that recusal was necessary because the judge, during the trial, took the position that the defendant had falsely testified at a deposition, accused the defendant and his counsel of attempting to perpetrate a fraud on the court, stated that the defendant’s counsel has had trouble with the court before with some of his “clients absconding,” and that whether the defendant’s counsel had ever been unprofessional before the trial judge or any other judge was “questionable.” In a myriad of other cases, the denial of a motion to recuse was upheld because the judge’s impartiality was not sufficiently compromised. See State v. Webb, 238 Conn. 389, 462, 680 A.2d 147 (1996) (judge presided on previous case involving defendant); Bonelli v. Bonelli, 214 Conn. 14, 19, 570 A.2d 189 (1990) (judge had previous cocounsel relationship with plaintiffs attorney); State v. Watson, 198 Conn. 598, 611, 504 A.2d 497 (1986) (alleged participation in negotiating plea bargain); State v. Lopez, 197 Conn. 337, 356-57, 497 A.2d 390 (1985) (sentencing judge allegedly heard privileged information); State v. Fullwood, 194 Conn. 573, 579-81, 484 A.2d 435 (1984) (alleged participation in pretrial negotiations); State v. Gradzik, 193 Conn. 35, 44-46, 475 A.2d [611] 269 (1984) (participation in plea negotiations); Culhane v. Aetna Life Ins. Co., 124 Conn. 237, 244-45, 199 A. 103 (1938) (blood relationship to plaintiffs witness); Emerick v. Kuhn, 52 Conn. App. 724, 761-63, 737 A.2d 456, cert. denied, 249 Conn. 929, 738 A.2d 653 (1999) (judge took into account pro se status of plaintiff); State v. Montini, 52 Conn. App. 682, 692-96, 730 A.2d 76, cert. denied, 249 Conn. 909, 733 A.2d 227 (1999) (judge’s general interest in child victim’s rights); Weyel v. Catania, 52 Conn. App. 292, 299, 728 A.2d 512, cert. denied, 248 Conn. 922, 733 A.2d 846 (1999) (judge’s acquaintance with store owned by parents of plaintiffs girlfriend); DeMatteo v. DeMatteo, 21 Conn. App. 582, 589-92, 575 A.2d 243, cert. denied, 216 Conn. 802, 577 A.2d 715 (1990) (vague and unverified assertions concerning ex parte judicial actions and comments of judge about professional conduct of defendant’s counsel); State v. Messier, 16 Conn. App. 455, 457-60, 549 A.2d 270, cert. denied, 209 Conn. 829, 552 A.2d 1216 (1988) (judge’s pretrial involvement); Barca v. Barca, supra, 15 Conn. App. 613-14 (comments of judge regarding truthfulness of defendant not stemming from extrajudicial source but related to merits of case and no preconceived view of credibility of witness); LaBow v. LaBow, 13 Conn. App. 330, 337-40, 537 A.2d 157, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988) (comments showed impatience with defendant and his counsel); Giordano v. Giordano, 9 Conn. App. 641, 643-45, 520 A.2d 1290 (1987) (comment in chambers); Keppel v. BaRoss Builders, Inc., 7 Conn. App. 435, 444-45, 509 A.2d 51, cert. denied, 201 Conn. 803, 513 A.2d 698 (1986) (statements of agitation); Hartford National Bank & Trust Co. v. DiFazio, 6 Conn. App. 576, 579-81, 506 A.2d 1069, cert. denied, 200 Conn. 805, 510 A.2d 192 (1986) (assertion of acquaintance between judge and two witnesses); Perlmutter v. Johnson, 6 Conn. App. 292, 294, 505 A.2d 13, cert. denied, 200 Conn. 801, 509 A.2d 517 [612] (1986), cert. denied, 479 U.S. 1035, 107 S. Ct. 86, 93 L. Ed. 2d 839 (1987) (prior professional dealings and prior acquaintance with plaintiff). Facts common to all of those cases upholding the denial of a motion to recuse are that the bias involved one of the parties or their present counsel, or a witness, rather than a potential or putative witness, and that even when the claim concerned an extrajudicial or ex parte event or situation related to the case pending before the trial court, recusal was not necessary unless, objectively, a reasonable person would view the failure to recuse as a strike at the core of judicial integrity that undermines public confidence in the judiciary. The three cases that reversed the denial of a motion to recuse do not contain facts that are common to the present case. In Abington Ltd. Partnership v. Heublein, supra, 246 Conn. 825, the judge sought and obtained extrajudicial information secretly, rendered a decision on the merits that could have been influenced by that information not learned by the judge from his participation in the case, and the ex parte event was not communicated by the judge to either party. In Papa v. New Haven Federation of Teachers, supra, 186 Conn. 746-47, the judge commented publicly outside the courtroom while the case was pending before him as to his views on the very issue he had yet to decide. In Cameron v. Cameron, supra, 187 Conn. 165, the judge commented in a derogatory manner about the defendant’s counsel, referring to prior cases of that counsel before the judge and to counsel’s general reputation among judges. The judge also accused the defendant of perpetrating a fraud on the court and of having lied during a previous deposition. Id., 170-71. We conclude that the trial court in this case properly denied the commissioner’s motions to recuse. The factors on which we rely include the fact that the outcome [613] of the habeas hearing did not depend on the testimony of Dixon, who in fact was not a witness at all, but on whether the petitioner had received ineffective assistance of counsel, which was the primary question for the judge. This question involves a determination not only of whether Dixon had a conflict of interest while representing the petitioner, but it involves issues concerning Dixon’s general inexperience as a criminal trial lawyer, the conduct of the defense and the trial strategy relating to the use of the particular defense. We also note that two other judges analyzed the facts and concluded that the habeas judge need not have recused himself, and that at the time the motion to recuse was made, grievances Dixon had filed against the habeas judge and the petitioner’s attorney in the habeas trial had been dismissed. Furthermore, the habeas judge himself made the parties aware of his telephone call to the state’s attorney in charge of Dixon’s investigation. By a fair preponderance of the evidence, the habeas judge found that Dixon had misappropriated the petitioner’s money. It is hard to understand how any judge could have concluded otherwise. This was but one fact among many related to whether the petitioner had received ineffective assistance of counsel. Most members of the public would commend the habeas court for referring the matter of his recusal to two other judges and for asking the grievance committee and the state’s attorney to investigate Dixon’s actions. The habeas judge’s telephone call to the state’s attorney as to the status of the investigation was not, in our opinion, an indication of a bias or the appearance of a bias that would call into question the judge’s ability to decide the case impartially. We decide this case on its particular facts; see Abington Ltd. Partnership v. Heublein, supra, 246 Conn. 826; and hold that the habeas judge did not exhibit bias and [614] prejudice stemming from an extrajudicial source that resulted in an opinion on the merits on some basis other than what he learned from his participation in the case. We therefore conclude that the trial court did not abuse its discretion in denying the motions to recuse. The judgment is affirmed. In this opinion LANDAU, J., concurred. Footnotes [1] The pleadings and other documents in the file variously describe the respondent as the warden, the commissioner and the state of Connecticut [2] The facts related to the petitioner’s criminal trial are set out in State v. Joyner, 225 Conn. 450, 625 A.2d 791 (1993), in which his conviction was affirmed on direct appeal. [3] During the criminal trial of the petitioner, the state filed a motion to disqualify Dixon as his counsel, claiming that Dixon was the executor of the estate of the petitioner’s father, that the victim had filed a civil action against the petitioner and attached the proceeds of the estate, that Dixon also had a claim on the proceeds for attorney’s fees in the criminal matter, and that a conviction in the criminal case would conclusively establish liability in the civil case thereby entitling the victim to damages, which would reduce the amount of money available for attorney’s fees. The state argued that Dixon had a financial stake in the outcome of the criminal proceeding, which might be in conflict with the petitioner’s interests. The trial court in the criminal case, Schimelman, J., held a hearing on the motion to disqualify Dixon before the trial began. In response to the trial court’s question, Dixon stated that the Court of Probate had ordered him to distribute the funds, and that he had done so and no longer was holding any assets of the estate. The trial court brought the potential conflict to the petitioner’s attention. The court noted that a garnishment order had issued against Dixon for funds of the estate, meaning that both the victim and Dixon had a claim on the funds, that Dixon was representing the petitioner in both the civil and the criminal cases, and that the petitioner might not get the best representation as a result. The trial court also had the petitioner meet privately with a public defender to discuss the potential conflict. The public defender reported to the court that the petitioner was aware of the potential conflict as stated in the state’s motion to disqualify. Thereafter, the petitioner conveyed to the court, [605] through the public defender, that he wanted Dixon to continue to represent him. Eventually, 1 he petitioner also specifically waived his right to a conflict free counsel. [4] The habeas court concluded that there was good cause for the petitioner’s failure to preserve the claim relating to Dixon’s conflict of interest at trial and that actual prejudice resulted from the alleged constitutional violation. The court, therefore, did not preclude the petitioner from raising the issue at the habeas trial. See Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). [5] Canon 3 (c) (1) of the Code of Judicial Conduct provides in relevant part: “A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . .”