author: DALY, J.

text:
    STATE OF CONNECTICUT v. JASON CASIANO
    (AC 18645)
    Lavery, Sullivan and Daly, Js.
    Argued April 28
    officially released November 2, 1999

      James B. Streeto, special public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James G. Clark, senior assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, Jason Casiano, appeals from the judgment of conviction rendered following his conditional plea of nolo contendere to charges of felony murder in violation of General Statutes § 53a-54c, attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134, and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134. The defendant contends that the court improperly denied his motion to suppress incriminating statements that he made to the police. Specifically, the defendant claims that the trial court improperly (1) concluded that he was not in custody when he made incriminating oral statements, (2) concluded that he was not entitled to Miranda warnings once he was interviewed as a suspect in the police station, (3) concluded that he validly waived his Miranda rights prior to providing his oral statements, (4) admitted two written statements that he contends were tainted and should have been suppressed as the product of his previous oral statements, which he claims were improperly obtained, and (5) determined that the oral statements-were made voluntarily. We affirm the judgment of the trial court.

The following facts are relevant to the determination of this appeal. On August 13,1995, the Waterbury police department received information from an informant describing several individuals who might have been involved in an August 11, 1995 homicide at a sandwich shop in North Haven, and that one of those individuals, the defendant’s cousin, Nicholas Aponte, lived on Rose Street in Waterbury. After that information was transmitted to the North Haven police department, Detectives Stephen Smith and Edward Murphy went to Waterbury, where Waterbury police informed them that there was an outstanding arrest warrant for Aponte on an unrelated matter.

Thereafter, in plainclothes and unmarked cars, Smith and Murphy, and Detective Patrick Deely and Sergeant Michael Ricci of the Waterbury police department drove to Rose Street to arrest Aponte and to question him regarding the August 11, 1995 homicide. When Aponte was arrested and handcuffed, the defendant, who was present, told the police that he wanted to go with Aponte to the police station. The police told the defendant that the decision to accompany Aponte was his to make. The defendant, who was never handcuffed, then exited the residence voluntarily and sat next to Aponte in the backseat of one of the unmarked police cars. Both individuals were then driven to the Waterbury police station.

When the defendant and Aponte arrived at the police station at approximately 12:30 p.m., Aponte was put in an unlocked interrogation room, which had one transparent glass wall, and was handcuffed to a chair. In the adjoining room, which was separated by a glass partition, the defendant was seated where he could see Aponte through the glass. The defendant was given food, soda and cigarettes at his request.

Later that day, at approximately 2:30 p.m., Smith read the defendant his Miranda rights, but told him that he was not under arrest at that time and that he was free to leave. The defendant voluntarily chose to remain at the station with Aponte. At approximately G p.m. that evening, and again at approximately 10:15 p.m., Smith and Ricci questioned the defendant, who agreed to give written statements, which ultimately incriminated him and others in the August 11,1995 homicide. Prior to the time that the defendant gave these written statements, however, Smith and Ricci again read the defendant his Miranda rights from a police card. The defendant acknowledged that he understood his rights and signed written waivers of them.

Thereafter, the defendant was ar rested and charged with felony murder, attempt to commit robbery in the first degree and conspiracy to commit robbery in the first degree. At a hearing on February 3, 1997, the court denied the defendant’s motion to suppress the incriminating written statements. On February 4, 1997, the court accepted the defendant’s conditional plea of nolo contendere. The defendant subsequently was sentenced to a total effective term of fifty years incarceration. This appeal followed.

I

The defendant first claims that the trial court improperly denied his motion to suppress the incriminating statements, whether written or oral, that he made to the police. In advancing this claim, the defendant asserts that the trial court improperly determined that he was not in custody during his questioning at the Waterbury police station prior to the time that he was read his Miranda rights and signed a written waiver of those rights. We disagree.

As a preliminary matter, “[o]ur standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) State v. Blackman, 246 Conn. 547, 553, 716 A.2d 101 (1998).

Our Supreme Court has stated that “[i]n determining whether the defendant was in custody, we need to examine all of the circumstances surrounding the interrogation. [T]he ultimate inquiry is simply whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” (Internal quotation marks omitted.) State v. Lapointe, 237 Conn. 694, 725, 678 A.2d 942 (enbanc), cert. denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996); see also State v. Atkinson, 235 Conn. 748, 757, 670 A.2d 276 (1996) (Miranda warnings not constitutionally required until defendant in custody and subjected to police interrogation); State v. Hoeplinger, 206 Conn. 278, 287, 537 A.2d 1010 (1988).

Additionally, “[t]he defendant has the burden of proving custodial interrogation . . . before the state must prove that adequate warnings of the rights that inhere in the privilege against self-incrimination were given to the defendant and that the defendant’s waiver of his rights was constitutionally valid .... Custodial interrogation [occurs when] questioning [is] initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. . . . Although the circumstances of each case must certainly influence a determination of whether a suspect is in custody for purposes of receiving Miranda protection ... [a] person is in custody only if a reasonable person would have believed he was not free to leave.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Rasmussen, 225 Conn. 55, 76, 621 A.2d 728 (1993).

Finally, “[w]e must look at the totality of the circumstances of the questioning in order to determine whether a reasonable person would have construed those circumstances as placing him in a custody situation. . . . We will not overturn the trial court’s factual finding that the defendant was not in custody unless it was clearly erroneous . . . but will, however, carefully review the record to ascertain whether the trial court’s finding is supported by substantial evidence.” (Citations omitted; internal quotation marks omitted.) Id., 76-77.

Applying these principles to the facts of the present case, we conclude that there is substantial evidence in the record to support the court’s determination that the defendant was not in custody prior to waiving his Miranda rights at the Waterbury police station on August 13, 1995. The defendant voluntarily chose to accompany Aponte to the police station. The police officers did not draw any weapons at any time and the defendant voluntarily got into the backseat of the police car. The defendant was neither arrested nor handcuffed at any time. Furthermore, at the police station, the defendant was allowed to sit in an unlocked room and to observe Aponte in an adjacent room through a glass partition. The defendant also was given food, soda and cigarettes at his request. In addition, while Smith verbally apprised the defendant of his Miranda rights at approximately 2:30 p.m. on August 13, 1995, he also told the defendant that he was not then under arrest and could leave if he chose to do so. The defendant, however, voluntarily chose to remain at the police station. At approximately 6 p.m. and again at approximately 10:15 p.m., Smith and Ricci questioned the defendant, who agreed to provide written statements. Prior to giving these statements, the defendant was apprised of his Miranda rights and executed a written waiver of them.

Because our review of the record reveals that a reasonable person in the defendant’s situation would not have believed that his movement was restricted to a degree that is associated with a formal arrest, we conclude that the court properly determined that the defendant was not in custody prior to executing the written waiver of his Miranda rights.

II

The defendant next claims that the trial court improperly concluded that he was not entitled to Miranda warnings once he was interviewed as a suspect in the police station. We disagree.

“A suspect in a crime is not in custody every time he is asked questions at a police station.” Id. “Two threshold conditions must be satisfied in order to invoke the warnings constitutionally required by Miranda-. (1) the defendant must have been in custody; and (2) the defendant must have been subjected to police interrogation. Miranda v. Arizona, [384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)]. . . . State v. Williams, 227 Conn. 101, 112, 629 A.2d 402 (1993); accord State v. DesLaurier, 230 Conn. 572, 576, 646 A.2d 108 (1994).” (Internal quotation marks omitted.) State v. Atkinson, supra, 235 Conn. 757. Having concluded in part I of this opinion that the trial court properly determined that the defendant was not in custody prior to executing the written waiver of his Miranda rights and voluntarily giving his written statements, we further conclude that Miranda warnings were not required during the earlier police questioning.

Ill

The defendant next claims that the trial court improperly admitted two written statements that he gave to police. Specifically, he contends that the statements were tainted and should have been suppressed as the product of his previous oral statements, which he claims were improperly obtained. Having concluded in part I of this opinion that the court properly determined that the defendant was not in custody and, thus, not entitled to Miranda warnings prior to executing the written waiver of his Miranda rights, we need not address this claim.

Even if we assume arguendo that the oral statements that the defendant made should have been suppressed due to inadequate Miranda warnings, the defendant’s two incriminating written statements, having been preceded by proper Miranda warnings and waivers, were not tainted and rendered inadmissible by the initial failure of the police to administer Miranda warnings to the defendant. See Oregon v. Elstad, 470 U.S. 298, 309, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985) (holding that initial failure to administer Miranda warnings to suspect who voluntarily provides incriminating statement, “unaccompanied by any actual coercion” by police officers, does not taint subsequent admissions made after suspect has been fully advised of and waived his Miranda rights).

In the present case, the defendant does not claim a violation of his federal constitutional rights under Elstad. Rather, the defendant challenges Elstad under the state constitution, an argument that we previously have rejected in State v. Corbeil, 41 Conn. App. 7, 10-13, 674 A.2d 454, cert. granted, 237 Conn. 919, 676 A.2d 1374 (1996) (appeal dismissed on death of defendant). Consequently, the defendant’s claim must fail, and we need not address it further.

IV

The defendant’s final claim is that his oral statements, which amounted to a confession, were involuntarily given because they were induced by a promise from Ricci, which was not honored, that the defendant would be sentenced to only ten years in prison if he confessed to the August 11, 1995 homicide. The defendant also argues that the timing of his confession, which occurred after he had been questioned by Ricci, supports a conclusion that his confession was not voluntary. We disagree.

We previously have held that “[a] statement is voluntary if it is the product of an essentially free and unconstrained choice by its maker . . . [i]f it is, if he has willed to [make a statement], it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his [statement] offends due process. . . . The question of voluntariness is one of fact for determination by the trial court in the exercise of its discretion, subject to the constitutional standards of due process. . . . The factors taken into account [on voluntariness] when assessing the totality of the circumstances include many of those used when determining the capacity of the defendant to waive his Miranda rights knowingly and intelligently. . . . Among those factors are the defendant’s age, intelligence, and his experience with the criminal justice system . . . .” (Citations omitted; internal quotation marks omitted.) State v. Huckaby, 47 Conn. App. 523, 529, 706 A.2d 16 (1998).

In the present case, the trial court found that at the time the defendant gave his statements to the police, (1) he was not impaired by drugs, (2) he understood and waived his rights, (3) he had prior experience with the court systems in both Connecticut and Florida because he had been arrested previously in both of these states, (4) no threats or promises had been made to the defendant at the Waterbury police station in exchange for his statements and (5) “there was no conduct by the police such as to overbear his will to resist and bring about a confession not freely self-determined.”

Accordingly, we conclude that the trial court’s findings were supported by the evidence. The trial court, in assessing the totality of the circumstances, properly determined both that the defendant voluntarily, knowingly and intelligently waived his rights and that he voluntarily gave incriminating oral statements to the police.

The judgment is affirmed.

In this opinion the other judges concurred.

        Miranda v. Arizona, 381 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       Wo note that the defendant’s nolo contendere plea was conditioned on his right to appeal from the trial court’s denial of his motion to suppress.

       Because we conclude that the court properly concluded that the defendant was not in custody and, thus, not entitled to Miranda warnings prior to executing' the written waiver of his Miranda rights, after which he gave his written statement s, we need not address 1 he defendant’s third claim—that oral statements he made were obtained in violation of his Miranda rights.

       The defendant told the police that he had been arrested in Ansonia within the preceding two weeks for marijuana possession and that he had an arrest record in Florida for charges involving larceny and automobile theft.


source: Caselaw Access Project

license: Public Domain

text:
    LAWRENCE R. MATTO v. DERMATOPATHOLOGY ASSOCIATES OF NEW YORK
    (AC 18455)
    Hennessy, Sullivan and Daly, Js.
    Submitted on briefs June 3
    officially released November 2, 1999

      Lawrence R. Matto, pro se, the appellant (plaintiff), filed a brief.

      James S. Newfield filed a brief for the appellee (defendant).
   Opinion

DALY, J.

The pro se plaintiff, Lawrence R. Matto, appeals from the judgment of the trial court granting the motion of the defendant, Dermatopathology Associates of New York, to dismiss for lack of personal jurisdiction. On appeal, the plaintiff claims that the court improperly (1) excluded an affidavit as hearsay, (2) excluded deposition testimony of the plaintiffs expert, (3) scheduled the jurisdictional hearing and (4) concluded that the defendant’s conduct did not establish sufficient minimum contacts within the state to warrant the exercise of personal jurisdiction. We affirm the judgment of the trial court.

The trial court reasonably could have found the following facts. The plaintiff commenced the underlying medical malpractice action in the Connecticut Superior Court against Dermatopathology Associates of New York, P.C., in June, 1995, alleging that the defendant association was negligent and committed malpractice in interpreting skin pathology biopsies sent to it by Joel Singer, a Connecticut plastic surgeon.

On July 27,1995, the defendant moved to dismiss the action for lack of personal jurisdiction, claiming that it did not have sufficient minimum contacts with Connecticut for the court to exercise jurisdiction pursuant to General Statutes § 52-59b. In a decision filed September 28, 1995, the court, Bailen, J., reserved decision on the defendant’s motion until the plaintiff had an opportunity to conduct limited discovery concerning the issue of personal jurisdiction. The court also ordered a hearing with respect to the issue pursuant to Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 459 A.2d 503 (1983), and permitted the defendant to reclaim its motion for argument at such hearing.

Following the completion of jurisdictional discovery in April, 1996, the defendant sought to have the court schedule a Standard Tallow Corp. hearing or, alternatively, hear the defendant’s motion to dismiss. In December, 1997, at the court’s suggestion, the defendant filed another motion to dismiss in an effort to obtain a hearing concerning the jurisdictional issue. On March 2,1998, the court heard the defendant’s motion to dismiss and scheduled a Standard Tallow Corp. hearing for April 6, 1998. The plaintiff did not object to the date of the scheduled hearing, nor did he assert that there was an insufficient amount of time to prepare for the hearing. Indeed, at the April 6 hearing, when asked by the court if he was ready to proceed, the plaintiff replied that he was ready.

At the Standard Tallow Corp. hearing, the plaintiff did not call any witnesses, and the court admitted into evidence, without objection, four documents proffered by the plaintiff. The plaintiff also sought to introduce two other documents that were not admitted. Specifically, the plaintiff sought to introduce an affidavit of Leon Luck, a Connecticut physician, which was prepared solely for the hearing and purportedly listed the number of biopsies that were sent to the defendant from 1987 to 1997 by Dermatopathology Associates, P.C., of Westport. The court sustained the defendant’s hearsay objection, and the plaintiff did not raise the issue of whether any exceptions to the hearsay rule were applicable.

The plaintiff also sought to introduce the deposition testimony of Milton Okun, a physician, which was taken in another action and was critical of the treatment provided to the plaintiff by the defendant in this case. The court ruled that the evidence was irrelevant to the issue of personal jurisdiction and excluded the testimony. After the plaintiff presented his evidence, the court heard argument on the defendant’s motion to dismiss. The court rendered its decision on May 7,1998, granting the motion and holding that the defendant’s conduct “[was] such that ... § 52-59b [did] not authorize the exercise of personal jurisdiction over [the defendant] because [it] did not have sufficient minimum contacts within the state of Connecticut.” This appeal followed.

I

The plaintiff first claims that the trial court improperly excluded Luck’s affidavit as hearsay. We decline to review this claim.

“This court will not review issues of law that are raised for the first time on appeal. . . . We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim. . . . Claims that were not distinctly raised at trial are not reviewable on appeal.” (Citations omitted; internal quotation marks omitted.) State v. Beliveau, 52 Conn. App. 475, 479, 727 A.2d 737, cert. denied, 249 Conn. 920, 733 A.2d 235 (1999).

Our review of the record, transcript and briefs reveals that the plaintiff failed to raise distinctly at trial the exceptions to the hearsay rule that he now presents on appeal as grounds for admission of the affidavit. The plaintiff merely stated that he objected to the court’s exclusion of the affidavit.

Moreover, the plaintiff has failed to present this claim properly for appellate review as required by Practice Book § 67-4 (d) (3), formerly § 4064 (d) (3). “It has long been our strong policy that if evidentiary rulings claimed to be improper are to be reviewed by this court, they must be set forth in the briefs as required and outlined by the rules of practice.” State v. Bagley, 35 Conn. App. 138, 145, 644 A.2d 386, cert. denied, 231 Conn. 913, 648 A.2d 157 (1994). A party’s “mere assertion in [its] brief that the evidence was improperly excluded, coupled with transcript page references, will not be sufficient . . . .” (Internal quotation marks omitted.) State v. Morrill, 42 Conn. App. 669, 682, 681 A.2d 369 (1996). Such is the case here. Consequently, the plaintiff has not properly preserved or presented this claim for appeal, and we therefore decline to review it.

II

The plaintiff next claims that the trial court improperly excluded the deposition testimony of the plaintiff’s expert. We decline to review this claim.

As we stated in part, I of this opinion, we will not review issues of law that are raised for the first time on appeal or consider claimed errors on the part of the trial court, that were not distinctly raised at trial. State v. Beliveau, supra, 52 Conn. App. 479. Our review of the record, transcript and briefs reveals that the plaintiff failed to raise distinctly at trial, as he now does on appeal, the claim that the testimony was relevant and that it was admissible as former testimony. Consequently, we therefore decline to review his claim.

Assuming arguendo, that this claim was distinctly raised at the hearing, we would still conclude that the court properly excluded the deposition testimony. “The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Citations omitted; internal quotation marks omitted.) State v. Berger, 249 Conn. 218, 229, 733 A.2d 156 (1999).

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue.” (Internal quotation marks omitted.) State v. Cepeda, 51 Conn. App. 409, 418, 723 A.2d 331, cert. denied, 248 Conn. 912, 732 A.2d 180 (1999). The court has the right and duty to exclude irrelevant evidence. State v. Pettway, 39 Conn. App. 63, 73-74, 664 A.2d 1125, cert. denied, 235 Conn. 921, 665 A.2d 908 (1995). In the present case, the plaintiff claims on appeal that the deposition testimony of Okun, which was taken during another action involving different parties than in the present case and was critical of the treatment provided to the plaintiff by the defendant, was relevant to whether the defendant had sufficient contacts with the state of Connecticut to justify the exercise over it of personal jurisdiction. We conclude that such evidence, which merely criticized the treatment provided to the plaintiff, is irrelevant to the issue of personal jurisdiction and that the court, in excluding the testimony, did not abuse its discretion.

The plaintiff contends that the deposition testimony was admissible pursuant to the former testimony exception to the hearsay rule under General Statutes § 52-159. This exception is inapplicable, however, because the defendant was not a party to the previous action in which the deposition testimony was taken. See footnote 8. Moreover, our review of the record does not reveal any evidence that Okun was unavailable to testify in the present action. We conclude, therefore, that the court properly exercised its broad discretion in excluding the deposition testimony.

III

The plaintiff next claims that the trial court abused its discretion by scheduling the jurisdictional hearing. We decline to review this claim.

As we stated in parts I and II of this opinion, we will not consider claimed errors that were not distinctly raised at trial. State v. Beliveau, supra, 52 Conn. App. 479. Our review of the record, transcript and briefs reveals that the plaintiff failed to raise distinctly at trial, as he now does on appeal, the issue concerning the scheduling of the jurisdictional hearing. Indeed, the plaintiff did not object to the April 6, 1998 hearing date when it was set on March 2, 1998, nor did the plaintiff obj ect when he appeared on April 6 for the jurisdictional hearing and was specifically asked by the court if he was ready to proceed. The plaintiff responded to the court’s inquiry by stating, “I’m ready to proceed .... So the affidavits were rejected and the evidentiary hearing is now at hand, and I’m ready to go forward.” Consequently, we decline to review the plaintiffs claim because we conclude that he has not properly preserved it for appeal.

IV

The plaintiff claims finally that the trial court improperly concluded that the defendant’s conduct was such that § 52-59b did not authorize the exercise of personal jurisdiction because the defendant lacked sufficient minimum contacts with Connecticut to warrant the exercise of personal jurisdiction. We do not agree.

“When a defendant files a motion to dismiss challenging the court’s jurisdiction, a two part inquiry is required. The trial court must first ‘decide whether the applicable state long-arm statute authorizes the assertion of jurisdiction over the [defendant]. If the statutory requirements [are] met, its second obligation [is] then to decide whether the exercise of jurisdiction over the [defendant] would violate constitutional principles of due process.’ ” Knipple v. Viking Communications, Ltd., 236 Conn. 602, 606, 674 A.2d 426 (1996). The burden is on the plaintiff to present evidence that will establish jurisdiction. Standard Tallow Corp. v. Jowdy, supra, 190 Conn. 54.

Our review of the record reveals that the court conducted such an inquiry in reaching its decision and properly concluded that the defendant’s contacts with Connecticut did not satisfy the requirements of § 52-59b, making the due process component of the inquiry unnecessary. The court concluded that the defendant’s conduct, set forth in the affidavits submitted on behalf of the defendant; see footnote 3; clearly showed that the defendant did not satisfy the requirements of § 52-59b (a) (3) (A) or (B).

The relevant portion of § 52-59b provides that jurisdiction may be exercised over a nonresident who “(3) commits a tortious act outside the state causing injury . . . within the state ... if he (A) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (B) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce . . . .”

The plaintiff has not sustained his burden of establishing the facts pertaining to personal jurisdiction over the defendant pursuant to § 52-59b. The plaintiff merely presented documents regarding (1) the cost to the plaintiff of the services provided by the defendant, (2) the tissue analysis conducted and (3) the number of Connecticut physicians (ten) who had sent samples to the defendant for analysis in 1991. See footnote 5. The defendant, however, contrasted that evidence with affidavits describing its lack of conduct in Connecticut.

The defendant’s affidavits state: (1) it does not have offices in Connecticut; (2) it did not have any employees who maintained a business office in Connecticut; (3) it did not advertise in Connecticut; (4) it did not suggest, recommend or request that the plaintiffs tissue samples be referred to it; (5) it did not solicit business from Connecticut physicians; and (6) Alan Halperin, a principal of the defendant, was not licensed to practice medicine in Connecticut. The affidavits also state that none of the physicians who performed the analysis (1) is licensed to practice medicine in Connecticut, (2) rendered any treatment to the plaintiff in Connecticut, (3) met with the plaintiff or traveled to Connecticut to speak with anyone concerning his treatment, (4) maintained an office or advertised in Connecticut or (5) requested, recommended or suggested that the tissue samples be sent to them by Singer.

After reviewing the evidence, we agree with the trial court that the plaintiff has not met his burden to present evidence establishing jurisdiction; Standard Tallow Corp. v. Jowdy, supra, 190 Conn. 54; over the defendant pursuant to § 52-59b. Having concluded that the statutory requirements were not satisfied, we need not decide whether the exercise of jurisdiction over the defendant would violate constitutional principles of due process. Knipple v. Viking Communications, Ltd., supra, 236 Conn. 606. Accordingly, we conclude that the court properly ruled that § 52-59b did not authorize the exercise of personal jurisdiction because the defendant did not have sufficient minimum contacts with Connecticut.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff has appeared pro se at all times and in all proceedings inentioned.

       In July, 1995, the plaintiff amended his complaint to provide a more proper description of the defendant as an association rather than a professional corporation at the time that it. interpreted the plaintiffs biopsies.

       In support of its motion to dismiss, the defendant presented the affidavit of Alan Halperin, a, principal of the defendant, which detailed that the defendant (1) did not have a business office in Connecticut, (2) did not, have any employees who maintained a business office in Connecticut, (3) did not advertise in Connecticut, (4) did not suggest,, recommend or request that Singer refer the plaintiffs tissue' samples to it and (5) did not solicit business from Connecticut physicians, and which stated that, Halperin was not licensed to practice medicine in Connecticut. The defendant also presented affidavit s from f he physicians who allegedly misinterpreted the plaintiffs pathology slides. These affidavits detailed that neither physician (1) was licensed to practice medicine in Connecticut, (2) rendered any treatment to the plaintiff in Connecticut, (3) met with the plaintiff or traveled to Connecticut to speak with anyone concerning his treatment, (4) maintained an office or advertised in Connecticut or (5) requested, recommended or suggested that the tissue samples be sent to them by Singer.

         General Statutes § 52-59b (a) provides: “As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident individual, or foreign partnership, or his or its executor or administrator, who in person or through an agent: (1) Transacts any business within the state; or (2) commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or (3) commits a tortious act outside the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he (A) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (B) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or (4) owns, uses or possesses any real property situated within the state.”

       The documents were (1) a portion of the defendant’s responses to interrogatories in which it stated that ten Connecticut physicians had referred biopsies to it in 1991, (2) a bill for tissue analysis totaling $200 that the defendant sent to the plaintiff, (3) a patient-insurer subscriber form regarding the tissue analysis conducted by the defendant and (4) the plaintiffs check in the amount of $200, which was made payable to and deposited by the defendant.

       Dermatopathology Associates, P.C., of Westport is not associated with the defendant in this action.

       Practice Book § 67-4 (d) (3), formerly § 4064C (d) (3), provides: “When error is claimed in any evidentiary ruling in a court or jury case, the brief or appendix shall include a verbatim statement of the following: the question or offer of exhibit; the objection and the ground on which it was based; the ground on which the evidence was claimed to be admissible; the answer if any; and the ruling.”

       General Statutes § 52-159 provides in relevant part: “The testimony of any witness, taken by deposition, in any civil action may be used in another civil action between the same parties, or their executors or administrators, and upon the same cause of action, to the same extent and as fully as though originally taken for use in such cause. . . .”


author: DUPONT, J. LAVERY, J.,

text:
    ANGELO JOYNER v. COMMISSIONER OF CORRECTION
    (AC 17716)
    Lavery, Landau and Dupont, Js.
    Argued March 3
    officially released November 2, 1999

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Christopher A. Alexy, assistant state’s attorney, for the appellant (respondent).

      Denise Ansell, special public defender, for the appel-lee (petitioner).
   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) 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, 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 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.

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, 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 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 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.

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 Conduct 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 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 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 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 (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 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 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.

LAVERY, J.,

dissenting. An appearance of impropriety is the standard by which judicial conduct is to be weighed. See Code of Judicial Conduct Canon 3 (c) (1). Because I believe that the habeas judge created an appearance of impropriety, regardless of whether he was fair and impartial and whether there was probable cause to grant the habeas petition, I respectfully dissent from the majority opinion.

The respondent commissioner of correction (commissioner) claims that the habeas judge’s refusal to recuse himself after he initiated and then urged pursuit of criminal and ethical investigations of attorney Samuel Dixon and declared that he had found probable cause to believe that Dixon had committed criminal and ethical violations deprived the commissioner of an impartial fact finder. After thoroughly reviewing the transcripts, I agree with the commissioner only with respect to the comments made by the habeas judge on the record at the end of the first day of trial and before trial resumed in September, 1996.

Our law mandating an impartial judiciary is very clear. “No more elementary statement concerning the judiciary can be made than that the conduct of the trial judge must be characterized by the highest degree of impartiality. If he departs from this standard, he casts serious reflection upon the system of which he is a part. A judge is not an umpire in a forensic encounter. . . . He is a minister of justice. . . . He may, of course, take all reasonable steps necessary for the orderly progress of the trial. ... In whatever he does, however, the trial judge should be cautious and circumspect in his language and conduct. . . . A judge should be scrupulous to refrain from hearing matters which he feels he cannot approach in the utmost spirit of fairness and to avoid the appearance of prejudice as regards either the parties or the issues before him. ... A judge, trying the cause without a jury, should be careful to refrain from any statement or attitude which would tend to deny the defendant a fair trial. . . . It is his responsibility to have the trial conducted in a manner which approaches an atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding.” (Citations omitted; internal quotation marks omitted.) Cameron v. Cameron, 187 Conn. 163, 168-69, 444 A.2d 915 (1982).

“The ‘appearance as well as the actuality of [partiality] on the pari, of the trier’ will suffice to constitute proof of bias sufficient to warrant disqualification. Id., 170. The standard that we employ on appellate review is whether a reasonable person who is aware of the circumstances surrounding the judicial proceeding would question the judge’s impartiality. Papa v. New Haven Federation of Teachers, 186 Conn. 725, 745-46, 444 A.2d 196 (1982); Keppel v. BaRoss Builders, Inc., 7 Conn. App. 435, 440-41, 509 A.2d 51 [cert. denied, 201 Conn. 803, 513 A.2d 698] (1986).” DeMatteo v. DeMatteo, 21 Conn. App. 582, 590-91, 575 A.2d 243, cert. denied, 216 Conn. 802, 577 A.2d 715 (1990).

“Moreover, disqualification of a trial judge is not dependent upon proof of actual bias. The appearance and the existence of impartiality are both essential elements of a fair trial. . . . Canon 3 (c) (1) of the Code of Judicial Conduct requires a judge to disqualify himself in any proceeding in which judicial impartiality might reasonably be doubted.” (Citation omitted; internal quotation marks omitted.) Consiglio v. Consiglio, 48 Conn. App. 654, 659, 711 A.2d 765 (1998).

“In analyzing this ground for disqualification, we emphasize the fundamental distinction between a claim of bias and a claim of an appearance of impropriety. Canon 3 (c) (1) provides in relevant part: ‘A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (A) the judge has . . . personal knowledge of disputed eviden-tiary facts concerning the proceeding . . . .’To prevail on its claim of a violation of this canon, the [commissioner] need not show actual bias. The [commissioner] has met [his] burden if [he] can prove that the conduct in question gave rise to a reasonable appearance of impropriety.” Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 819-20, 717 A.2d 1232 (1998).

“Whether that evidence requires disqualification is an issue that, in the first instance, is left to the exercise of a trial judge’s discretion. Bonelli v. Bonelli, [214 Conn. 14, 22, 570 A.2d 189 (1990)]. Accordingly, our review ordinarily is limited to the question of whether a trial judge has abused his discretion.” Abington Ltd. Partnership v. Heublein, supra, 246 Conn. 824.

In this case, the habeas judge abandoned his position of impartiality and became an advocate by questioning the thoroughness of the investigation done by the state’s attorney and so stating on the record. “The trial court should never assume a position of advocacy, real or apparent, in a case before it, and should avoid any displays of hostility or skepticism toward the defendant’s case, or of approbation for the prosecution’s. ... A fine line separates proper and improper judicial conduct and the judge must strive to appear impartial and detached.” (Citation omitted; internal quotation marks omitted.) State v. Pharr, 44 Conn. App. 561, 570, 691 A.2d 1081 (1997). “The judge occupies an exalted and dignified position; he is the one person to whom the jury, with rare exceptions, looks for guidance, and from whom the litigants expect absolute impartiality. An expression indicative of favor or condemnation is quickly reflected in the jury box and at the counsel table.” (Internal quotation marks omitted.) Id.

“In evaluating whether, from an objective standpoint, these facts demonstrate a violation of canon 3 (c) (1), we start from two well established propositions concerning the appearance of judicial impropriety. Although stated separately, each proposition reenforces the other.

“The first proposition is that the prevention of the appearance of impropriety is of vital importance to the judiciary and to the judicial process. Bonelli v. Bonelli, [supra, 214 Conn. 19]. Members of the judiciary should be acutely aware that any action they take, whether on or off the bench, must be measured against exacting standards of scrutiny to the end that public perception of the integrity of the judiciary will be preserved .... There must also be a recognition that any actions undertaken in the public sphere reflect, whether designedly or not, upon the prestige of the judiciary. . . . Judges must assiduously avoid those contacts which might create even the appearance of impropriety. ... In the Matter of Lonschein, 50 N.Y.2d 569, 572, 408 N.E.2d 901, 430 N.Y.S.2d 571 (1980). The duty to avoid creating an appearance of impropriety is one of taking reasonable precautions to avoid having a negative effect on the confidence of the thinking public in the administration of justice. In the Matter of Bonin, 375 Mass. 680 [707, 378 N.E.2d 669] (1978). In re Inquiry Concerning a Judge, 788 P.2d 716, 723 (Alaska 1990); see also Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 859-61, 108 S. Ct. 2194, 100 L. Ed. 2d 855 (1988).

“The second proposition is that an inquiry into disqualification of a judge requires a sensitive evaluation of all the facts and circumstances in order to determine whether a failure to disqualify the judge was an abuse of sound judicial discretion. Bonelli v. Bonelli, supra, 214 Conn. 22. In undertaking such an evaluation, we must be mindful of its intrinsic difficulties. Judges who are asked to recuse themselves are reluctant to impugn their own standards. Likewise, judges sitting in review of others do not like to cast aspersions. Yet drawing all inferences favorable to the honesty and care of the judge whose conduct has been questioned could collapse the appearance of impropriety standard . . . into a demand for proof of actual impropriety. United States v. Jordan, 49 F.3d 152, 157 (5th Cir. 1995).” (Internal quotation marks omitted.) Abington Ltd. Partnership v. Heublein, supra, 246 Conn. 822-24.

The facts here demonstrate that the habeas judge heard evidence during pretrial discovery and received information from the petitioner’s special public defender that Dixon may have misappropriated funds from the estate of the petitioner’s father, which he referred to the grievance committee and to the chief state’s attorney. During the first day of trial, before the commissioner had an opportunity to cross-examine the witness, the habeas judge concluded that Dixon had taken the petitioner’s money. Although he failed to pursue it, Dixon filed a grievance against the habeas judge. After he received information that the state’s attorney was not going to pursue criminal allegations against Dixon, the habeas judge communicated with the prosecutor assigned to the matter and demanded to know why. By his own admission, the habeas judge acknowledged that he may have pressed the prosecutor too hard.

I have no doubt that the habeas judge was certain that he could be impartial in the face of these facts, and I also believe that the other trial judges who considered or reviewed the commissioner’s motions to recuse fairly thought lhat the habeas judge could remain impartial. What the judges thought, however, is not the applicable standard. The standard is whether there is an appearance of partiality.

Although the habeas judge had a responsibility to report the information given to him by the special public defender concerning Dixon’s possible misappropriation of the petitioner’s funds; see Code of Judicial Conduct Canon 3 (b) (3); his duty ended there and he should not have made further inquiries or questioned the scope of the investigation conducted by the state’s attorney. The comments the judge made at the end of the first day of trial and in questioning the thoroughness of the investigation done by the state’s attorney, no matter what explanation he provided after the fact, created the appearance of impropriety. Because the habeas judge failed to recuse himself, the appearance of impropriety tainted the entire proceeding, and the commissioner was deprived of an impartial fact finder. See Code of Judicial Conduct Canon 3 (c) (1).

I would reverse the judgment and grant a new trial.

       The pleadings and other documents in the file variously describe the respondent as the warden, the commissioner and the state of Connecticut

       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.

       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, 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.

       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).

       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 . . . .”

       On appeal, the commissioner makes no claim that the habeas court improperly referred the matter to the statewide grievance committee or to the chief state’s attorney.

       I agree with the majority that it was entirely appropriate for the habeas judge to refer the question of Dixon’s alleged criminal wrongdoing to the state’s attorney when it first came to his attention. See Code of Judicial Conduct Canon 3 (b) (3).

       At the end of the first day of trial, the following colloquy took place in response to an objection from the commissioner.
      “The Court: First of all, I’ll give such weight to it as it deserves. Secondly, I have no doubt from the testimony I’ve heard without the notes that Mr. Dixon took the money, apparently before [the victim’s lawyer] informed him of the lawsuit; and also that, he told—if I believe [the petitioner] that the money was already attached, or such, before he knew about the lawsuit. I have staled this repeatedly. The fact that Mr. Dixon may have committed terminological inexactitudes .... The fact that he has committed lies I’m aware of. I’m not sure, at this point, what it has to do with ineffective assistance of counsel, or the conflict that you allege between Mr. Dixon and [the petitioner]. The point being, if [the petitioner] had been acquitted, what difference does it make whether he told something wrong to [the petitioner]? The point is, suppose that he told [the petitioner] something that’s not true, okay, and then he went ahead and did his questions and answers and whatever, and I read the transcript and after all the testimony I conclude that he did an effective job. What difference does it make?
      “[The Prosecutor]: To be quite honest, Your Honor, I’m not sure what the purpose of a cross-examination would be at this point. The court, has already indicated that it’s found, as a matter of fact—the court said, I believe, T have no doubt that he took the money before he knew the civil suit was filed.’
      “The Court: I didn’t mean no doubt.
      “[The Prosecutor]: And the court has indicated that he committed lies.
      “The Court: I didn’t mean no doubt, but I think the evidence has been presented at this point.
      “[The Prosecutor]: Well, that was not what the court said.
      “The Court: Well, then I misspoke. The point is, from the testimony from [the petitioner], from the testimony from [the victim’s counsel] earlier, and from [the victim’s] testimony, it appears that Mr. Dixon did not know of the lawsuit, on May 10 when he allegedly told [the petitioner] that the money had been tied up by the lawsuit.
      “[The Prosecutor]: Well, if Your Honoris obviously crediting the testimony of this witness over [that of the victim’s counsel] because [the victim’s counsel] testified that this witness was aware of it on May 2. Now, I don’t know how much more plain the court could have made it. It’s put me in an awkward position, and I don’t want to have to renew my previous motion to recuse. When the court makes these typos of findings of fact on the record before I even cross-examine this witness, let alone before I even present my case, it certainly creates at least, an appearance . . . .”
      The next trial day the commissioner moved for a mistrial on the basis of those comments, by the habeas judge. The motion was denied. The trial was recessed for several months due to the judge’s illness. When the trial resumed in September, 1996, the habeas judge made the following statement on the record:
      “The Court: Before we start with any evidence, I wanted to bring to the parties’ att ention certain items. Number one, on June 23, 1996, attorney Samuel Dixon, the same Samuel Dixon who was here as the person who allegedly gave ineffective representation to [the petitioner], filed a complaint against me with the state of Connecticut judicial review counsel. On July 29, after the commission’s first meeting, I wrote to Mr. Dixon asking for more information to substantiate his charges, continued the matter until August 21, not for a probable cause hearing but for initial determination, and I filed an answer on July 29. On August 21, not having heard from Mr. Dixon, the complaint was dismissed. And for counsel only, not for distribution, if you want to look at the complaint and the reply, you’re free to do so. I state on the record I hold no ill will toward Mr. Dixon. I’m not biased or prejudiced against him in any way for his complaint and his actions in this regard.
      * * *
      “The Court: Secondly, I did receive a letter from an assistant to the chief state’s attorney, Julia Dewey I believe it is. I had the clerk send copies to both counsel. ... I would point out to you that I remember the date of September 5, but I did contact attorney Dewey as to questioning the efficacy of the investigation. She did invite me in the letter to call her if I had any questions. I wanted to know the extent of the investigation to the effect that she stated that there were affidavits from the beneficiaries indicating that they were satisfied that all the money had been paid and that there was no evidence in the record apparently or no evidence that [the petitioner] had not been paid. I said, ‘Are these affidavits taken by Mr. Dixon, or did your investigator actually talk to these people?’ She refused to answer that. I did not reiterate an opinion that he had probably committed larceny. I don’t recall saying that. I do recall asking her about whether she conducted a thorough investigation. I wanted to know how far that had gone. There seems to be a question as to what access the judge in a case like this has to the investigation by a state’s attorney. She obviously felt I did not have access. I did call her back, did not reach her and left a message on the machine that I would not trouble her again. . . . I’m trying to get to the bottom of this. And [Dewey] presumed something which was untrue, but that is why I was questioning the efficacy of the investigation. I didn’t question the efficacy, I questioned the thoroughness of it by asking how far they had gone, and she refused to tell me. I may have said something [like] ‘it seems to me someone should have checked. Did you check over all the bank records.’ I don’t think she responded to that. I do not remember saying that he had probably committed larceny as alleged in this case. Sure, I found that there was probable cause to believe that attorney Dixon committed the crime of larceny, which is why I made the request of the state’s attorney.
      * « *
      “The fact that they have decided that there is no further need to pursue a criminal investigation, that’s up to them. I did call attorney Dewey back because I wanted her to understand. . . . Secondly, that I wouldn’t bother her again, and I think I apologized if I may have pressed her too hard or something.”

       Canon 3 (c) (1) provides: “A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:
      “(A) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
      “(B) the judge served as lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it . . .
      “(C) the judge knows that he or she, individually or as a fiduciary, or his or her spouse or minor child residing in the judge’s household, has afinaneial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
      “(D) the judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
      “(i) is aparty to the proceeding, or an officer, director, or trustee of aparty; “(ii) is acting as a lawyer in the proceeding . . .
      “(iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
      “(iv) is to the judge’s knowledge likely to be a material witness in the proceeding . . .

       Canon 3 (b) (3) provides: “Ajudge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which 1 he judge may become aware. A judge is not required 1 o disclose information gained by the judge while serving as a member of a committee that renders assistance to ill or impaired judges or lawyers or while serving as a member of a bar association professional ethics committee.”

       Although the majority notes that the habeas judge was invited to telephone the assistant state’s attorney, such an invitation does not obviate the need for the habeas court to appear impartial.


author: IIENNESSY, J.

text:
    STATE OF CONNECTICUT v. WILLIAM MARTINEZ
    (AC 18429)
    Landau, Hennessy and Dupont, Js.
    Submitted on briefs May 26
    officially released November 2, 1999

      Louis S. Avilabile, special public defender, filed a brief for the appellant (defendant).

      John A. Connelly, state’s attorney, Nancy L. Chupak, deputy assistant state’s attorney, and Terence Mariani, assistant state’s attorney, filed a brief for the appel-lee (state).
   Opinion

IIENNESSY, J.

The defendant, William Martinez, appeals from the trial court’s judgment revoking his probation and committing him to the custody of the commissioner of correction to serve the suspended portion of his sentence. On appeal, the defendant claims that the court improperly (1) found him in violation of probation when his probation officer did not comply with General Statutes § 54-108 and (2) failed to consider the probation officer’s lack of compliance with § 54-108 in sentencing the defendant for his violation of probation. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. On September 13, 1995, the defendant pleaded guilty to possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a). The trial court sentenced him to seven years imprisonment, execution suspended, with five years probation. On September 19, 1997, the defendant was charged with violation of probation pursuant to General Statutes § 53a-32. The state alleged that the defendant (1) pleaded guilty to assault in the third degree in violation of General Statutes § 53a-61 on March 24, 1997, (2) was arrested and charged with interfering with an officer and resisting arrest in violation of General Statutes § 53a-167a, assault of a peace officer in violation of General Statutes § 53a-167c and illegally dispensing liquor without a permit in violation of General Statutes § 30-77 on May 17, 1997, and (3) was arrested and charged with assault in the second degree in violation of General Statutes § 53a-60 on August 3, 1997.

The trial court held a hearing on March 19, 25, and 26, 1998. At the close of the state’s evidence, the defendant moved for judgment of acquittal and to dismiss for lack of a prima facie case pursuant to Practice Book § 15-8. The court denied the motions. Subsequently, the court found the defendant to be in violation of his probation, revoked his probation and sentenced him to the seven years that were originally suspended on the 1995 narcotics conviction. Additional facts will be discussed where relevant to the issues on appeal.

“An appellate court’s review of an order revoking probation is to determine whether the trial court abused its discretion . . . and we must review the reasonableness of two findings: whether the defendant violated the conditions of probation, and whether he should be incarcerated because the rehabilitative purpose of probation cannot continue to be served.” (Citation omitted.) State v. Wright, 24 Conn. App. 575, 579, 590 A.2d 486 (1991).

I

The defendant first claims that the trial court improperly found him in violation of his probation because there was no compliance with § 54-108 due to the probation officer’s failure to provide the defendant with a written statement of the conditions of probation and to keep informed of the defendant’s conduct when the defendant was placed on inactive status.1 Although the defendant knew that committing a crime “might be a problem,” he did not know “which particular crimes would require a violation of probation.” The defendant argues that due to his lack of knowledge and notice, the court either should have granted his motion for acquittal or dismissal at the close of the state’s case or should have found no violation after hearing all the evidence. We disagree.

“To support a finding of probation violation, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation. ... In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . This court may reverse the trial court’s initial factual determination that a condition of probation has been violated only if we determine that such a finding was clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling .... A fact is more probable than not when it is supported by a fair preponderance of the evidence.” (Internal quotation marks omitted.) State v. Rabell, 53 Conn. App. 402, 404-405, 730 A.2d 1199, cert. denied, 250 Conn. 923, 738 A.2d 661 (1999). It is the state’s burden to prove by a preponderance of the evidence that the defendant has violated the conditions of his probation. State v. Askew, 53 Conn. App. 236, 238, 729 A.2d 238 (1999).

In this case, the trial court found that the defendant violated his probation on May 17 and August 3, 1997, because he engaged in criminal activity in violation of the conditions of his probation. The defendant, however, does not argue that the state failed to prove by a preponderance of the evidence that he violated the conditions of his probation or that the court’s finding was clearly erroneous. Instead, the defendant’s claim is that the court should have excused his violation of probation because of the probation officer’s failure to comply with § 54-108.

In State v. White, 169 Conn. 223, 237, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975), the defendant argued that the trial court’s failure to deliver a written copy of the conditions of probation to him, pursuant to General Statutes § 53a-30 (a), invalidated the revocation of his probation. Our Supreme Court concluded that the claim was without merit because the statute does not provide a penalty for the failure of the court to deliver to the defendant a copy of the probation conditions and because the defendant did not claim that he was unaware that if he violated the relevant condition, his probation would be subject to revocation. Id., 238. The White court concluded that the statute was directory and that “it would make a mockery of the statute to say failure to deliver standard conditions of probation renders probation invalid under the facts of this case.” Id.

Section 54-108 provides in relevant part that probation officers “shall furnish to each person released under their supervision a written statement of the conditions of probation and shall instruct him regarding the same. . . .” Section 54-108 does not provide a remedy for the failure of the probation officer to comply with the statute. The defendant admitted that he knew that he should not commit a crime or be arrested while on probation. He also admitted that he knew that if he was arrested, there could be a “problem” with his probation. As in White, we conclude that § 54-108 is directory and not mandatory, and that violation of the statute by the probation officer does not excuse the defendant from the requirement that he not violate a condition of probation.

In addition, this court indicated in State v. Scott, 31 Conn. App. 660, 667, 626 A.2d 817 (1993), that “§ 54-108 does not require that the defendant’s signature be on the conditions of probation, but only that the defendant be advised as to the conditions of his probation.” (Emphasis added.) We further conclude, therefore, that, as long as the probation officer advised the defendant of the conditions of his probation and the consequences of violating those conditions, the probation officer complied with the requirements of § 54-108.

In this case, the probation officer testified that on October 5, 1995, he reviewed the conditions of probation with the defendant, including the condition that he not be arrested and that if the defendant was arrested, the defendant must contact him. The probation officer also indicated to the defendant that “if you get arrested you face a violation of probation.”

The defendant testified that he did not recall the probation officer telling him about the conditions of his probation. He testified, however, that he knew that being arrested or committing a crime might cause a problem with his probation. He also testified that the probation officer instructed him to call if something happened. He testified that he knew he was not supposed to commit any crimes while on probation, and that if he was arrested he was to inform his probation officer.

The trial court indicated that “what this violation of probation comes down to is the credibility of the witnesses . . . .” The court indicated that it did not find the defendant’s testimony credible. “It is the sole province of the trial court to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Internal quotation marks omitted.) Beede v. Beede, 186 Conn. 191, 195, 440 A.2d 283 (1982).

Under the circumstances of this case, we conclude that the probation officer complied with the mandates of § 54-108. “Absent a showing to the contrary, a probationer is chargeable with knowledge that a breach of any condition may well result in revocation and serving the suspended sentence.” State v. Smith, 207 Conn. 152, 172, 540 A.2d 679 (1988). Accordingly, we conclude that the court did not abuse its discretion by not excusing the defendant from his probation violation.

II

The defendant also argues that if the remedy is not dismissal or acquittal, the trial court should have considered the probation officer’s violation of § 54-108 in the sentencing phase of the violation of probation hearing. The defendant argues that the court did not consider the probation officer’s violation of § 54-108 and did not consider the whole record, as required, when determining whether to revoke his probation. We disagree.

“[A] probation revocation hearing has two distinct components. . . . The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation. ... If the trial court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the defendant’s probationary status should be revoked. On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. ... In making this second determination, the trial court is vested with broad discretion.” (Citations omitted; internal quotation marks omitted.) State v. Daniels, 248 Conn. 64, 72, 726 A.2d 520 (1999) (en banc).

Because we concluded in part I of this opinion that the probation officer complied with § 54-108, the trial court need not have considered this issue. We note, however, that the court stated that the defendant had been arrested three times in about three years and that he “[has] never taken the issue of probation seriously.” The court stated that this was “a contradiction of what probation is for.” The court further stated that “probation no longer selves a worthful purpose” for the defendant. Under these circumstances, we conclude that the court did not abuse its discretion in revoking the defendant’s probation and ordering him serve the suspended portion of his sentence.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-108 provides in relevant part: “Probation officers shall investigate all cases referred to them for investigation by the director or by the court. They shall furnish to each person released under their supervision a written statement of the conditions of probation and shall instruct him regarding the same. They shall keep informed of his conduct and condition and use all suitable methods to aid and encourage him and to bring about improvement in his conduct and condition. . . .”

         We conclude that there is no merit to the defendant’s claim regarding the probation officer’s failure to keep informed of the defendant’s conduct. The probation officer placed the defendant on calling status. The defendant was instructed to call if he was arrested or if his address or employment changed. The failure of the defendant to call the probation officer as instructed cannot be used to shift the blame to the probation officer for the defendant’s violation of probation.

       General Statutes § 53a-30 (a) provides in relevant part: “The court shall cause a copy of any such order to be delivered to the defendant and to the probation officer, if any.”