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State v. Milner

Supreme Court of Connecticut

March 28, 2017


          Argued December 6, 2016

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

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

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


          McDONALD, J.

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

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

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

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

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

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

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

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

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