December 6, 2016
E. Mortimer, with whom, on the brief, was Michael D. Day, for
the appellant (defendant).
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
Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.
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.
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.
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.
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.
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.
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.''
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.
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 ...