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Tala E.H. v. Syed I.

Court of Appeals of Connecticut

July 10, 2018

TALA E. H.
v.
SYED I.[*]

          Argued March 14, 2018

         Procedural History

         Application for relief from abuse, brought to the Superior Court in the judicial district of New Haven, where the court, Goodrow, J., granted the application; thereafter, following a hearing, the court, Emons, J., continued the protective order; subsequently, the court, Emons, J., denied the defendant's motions for clarification and contempt, and the defendant appealed to this court. Affirmed.

          Syed I., self-represented, the appellant (defendant).

          Lavine, Keller and Bear, Js.

          OPINION

          LAVINE, J.

         This appeal arises out of an order of protection issued against the self-represented defendant, Syed I., in favor of the self-represented plaintiff, Tala E. H.[1] On appeal, the defendant commingles claims related to the judgments rendered by the trial court when it continued the order of protection against him and thereafter when it denied his postjudgment motions for contempt and clarification. Specifically, the defendant claims that the trial court (1) was guilty of judicial misconduct and bias, (2) denied him due process by failing to rule on his discovery motions, (3) denied him the right to a public trial, (4) misread the evidence, (5) abused its discretion by failing to create a record of certain testimony, and (6) improperly denied his motions for contempt and clarification.[2] The majority of the defendant's claims are inadequately briefed, and, therefore, we address only his judicial misconduct and evidentiary claims.[3] We affirm the judgments of the trial court.

         The following facts and procedural history are relevant to our resolution of the defendant's reviewable claims on appeal. See footnote 2 of this opinion. On September 1, 2016, the then nineteen year old plaintiff filed an application for relief from abuse from the then forty-one year old defendant whom she identified as a person to whom she was married and with whom she resided in a property owned by him.[4] See General Statutes § 46b-15 (a). In her affidavit, the plaintiff attested that beginning on August 16, 2016, the defendant began to harass her by sending her a text message that he was going to have her evicted from her room and that he would break into her room unless she voluntarily returned certain of his possessions. The plaintiff feared for her safety and well-being, and began to stay at another address. When she returned to her room, she found that a large number of her belongings were gone, including a laptop computer, a marriage certificate, clothing, cosmetics, and jewelry. She reported the break-in to the police, who told her that nothing could be done because the defendant, whom she suspected to be the perpetrator of the theft, was her husband. The plaintiff also attested that several days later the defendant reported to the police that the motor vehicle he had given her as a gift was missing and claimed that the plaintiff's friend D had stolen it. The defendant used a tracking device to locate the car at the address where the plaintiff was staying.

         The plaintiff further attested that the defendant harassed her to find out where she was working. One day, he appeared at her workplace and misrepresented himself to one of the plaintiff's coworkers in order to see her. The defendant made a beverage purchase and, after paying for it, gave the plaintiff a vulgar, handwritten note. He remained in the workplace for a while before leaving. The plaintiff and D worked at the same store, and the plaintiff told her about the incident. In his effort to locate the plaintiff, the defendant had been sending text messages to D ‘‘as a relationship counselor.'' D sent a text message to the defendant telling him not to come to the plaintiff's workplace. The plaintiff attested that the defendant, claiming discrimination, sent D's message to the corporate headquarters of the store, which caused D to lose her employment.[5]

         The plaintiff also attested that the defendant installed cameras outside the door to her room and hired someone to follow her in a car. She also attested that the defendant verbally abused her and yelled at her in public. In addition, he sent her text messages about sexual acts that disturbed her. He researched her family in order to contact her aunt and her uncle at their respective homes in Connecticut and telephone her father in the country of Lebanon. According to the plaintiff, the defendant begged her to return to the room they shared and continued to harass her by sending her text messages.

         The plaintiff averred that she received an e-mail message from her bank stating that she needed to activate her bank card as soon as possible. She had never received a bank card so she believed that the defendant had taken it and used it to take funds from her account. She claimed that the defendant was interfering with her everyday life and the lives of her friends. The plaintiff was terrified of the defendant. Although she asked him to leave her alone, he continued to send text messages to her. She attested that the defendant was ‘‘attempting to ruin [her] life in any way he can.''

         The court, Goodrow, J., granted the ex parte application and ordered the defendant to surrender all firearms and ammunition and not to assault, threaten, abuse, harass, follow, interfere with, or stalk the plaintiff, and scheduled a hearing to determine whether the protective order should be continued beyond two weeks. The defendant was served with notice of the hearing to be held on September 14, 2016. The defendant filed a fifty-one page affidavit in response to the plaintiff's application.[6] He also filed numerous requests that the court subpoena certain persons to appear at the hearing.[7]

         On September 14, 2016, the parties appeared before the court, Emons, J., and presented evidence and argument. The plaintiff placed into evidence a sheaf of text messages she had received from the defendant from mid to late August, 2016, that was, according to the court, more than one and one-half inches thick. The court read them and described them as ‘‘[h]orribly, horribly unpleasant exchanges.'' On cross-examination, the defendant asked the plaintiff why she felt threatened by him, and the plaintiff testified: ‘‘[Y]our actions have proved that time after time, texting me excessively, showing up at my employers, contacting friends and family of mine that you have no reason to contact and showing up at their homes . . . their employers, getting them fired and that's why I believe so.''

         The defendant stated to the court that he had not threatened the plaintiff and that he had not intended to harass her. He explained that he wanted to present evidence through third parties to discredit the plaintiff's credibility and character and that she sought an order of protection only because he was evicting her from the room he had rented to her. Although the court acknowledged that the plaintiff at times may not have been truthful, it stated that her character was not the issue under § 46b-15 (a).

         During the hearing, the court stated that the parties needed to leave one another alone and offered to extend the protective order of no communication for sixty days and to permit the parties to return to court if the conflict between them calmed down. The court also stated that, in the voluminous exchange of text messages, neither party had been nice to the other. Neither party, however, was willing to accept the court's offer of compromise.

         At the conclusion of the hearing, the court continued the protection order of no contact for six months, through March 14, 2017, subject to modification. The court stated to the defendant that it had considered all of the evidence, including ‘‘hundreds and hundreds of obsessive texts, most of which are not particularly very nice; the fact that you went to her boyfriend's home or friend, I don't know what he is really; the fact that you went to the aunt's house; the fact that you went to the uncle's house; the fact that you installed cameras in the house specifically looking at her door and were texting her on what time she came and went; the fact that you admitted that you put tracking devices in her car. This is a stalking type of situation and it, I believe, the fact that there was testimony about your using other people's cars to follow her so that she won't know who you are, it is not only stalking and complies with the statute in that manner, but I believe that the continuous constant interaction that was clearly not welcome is sufficient to . . . instill in her a continuous threat or threatening based upon the statute . . . .'' The court also ordered the plaintiff to remove all of her belongings from the defendant's property by September 30, 2016, and that the parties communicate through a third party.

         On September 20, 2016, the defendant filed a motion for clarification of the court's order that the plaintiff remove her belongings from his property. On September 29 and October 3, 2016, he filed motions for contempt claiming, inter alia, that the plaintiff had not removed her possessions by September 30, 2016. The court denied the defendant's motions following a hearing held on October 7, 2016. The defendant filed the present appeal on October 13, 2016.

         We begin with the generally applicable standard of review. ‘‘[T]he standard of review in family matters is well settled. An appellate court will not disturb a trial court's orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented.'' (Footnote omitted; internal quotation marks omitted.) Princess Q. H. v. Robert H., 150 Conn.App. 105, 111, 89 A.3d 896 (2014).[8]

         I

         The defendant's first claim is that the manner in which the court conducted the hearing on the continuance of the protective order constituted judicial misconduct and bias and caused him ‘‘duress.'' We have reviewed the entire transcript of the hearing and disagree that the court was guilty of bias or judicial misconduct.

         At no time during the September 14, 2016 hearing did the defendant ask the court to recuse itself or move to disqualify the judge. His claim of judicial bias and misconduct, therefore, is unpreserved and raised for the first time on appeal. Ordinarily, a reviewing court will not entertain an issue raised for the first time on appeal. See Schimenti v. Schimenti, 181 Conn.App. 385, 392, ___ A.3d ___ (2018). Even though his claim is unpreserved, the defendant did not request review pursuant to one of the exceptions by which this court may review unpreserved claims.[9] In his appellate brief, the defendant acknowledged that he did not object to the court's statements that he found to be biased ‘‘as he felt intimidated, and objection would have been fruitless and may have even resulted in further error and reprimand . . . [which] resulted in harmful error that affected the integrity of the proceeding and reversible error leading not to a fair trial on the facts but a trial on the temper or whimsies of'' the court.

         ‘‘[T]he floor established by the Due Process Clause clearly requires a fair trial in a fair tribunal . . . before a judge with no actual bias against the defendant, or interest in the outcome of [a] particular case.'' (Citation omitted; internal quotation marks omitted.) Bracy v. Gramley, 520 U.S. 899, 904-905, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997). ‘‘Judicial impartiality is the hallmark of the American system of justice.'' 48A C.J.S. Judges § 247 (2018). Following our review of the defendant's brief, we construe his alleged judicial bias and misconduct assertions to set forth a claim of plain error. Pursuant to Practice Book § 60-5, we may, in the interest of justice, notice plain error claims not brought to the attention of the trial court.

         ‘‘[A]lthough this court may review an unpreserved claim of judicial bias for plain error, not every claim of partiality warrants reversal on the basis of plain error.'' Schimenti v. Schimenti, supra, 181 Conn.App. 392. In the present case, we have reviewed the defendant's claim of judicial bias under the plain error doctrine because it allegedly implicates the basic concept of a fair trial; see Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982); but we found no evidence of bias, misconduct, or impartiality in the record.

         The plain error doctrine ‘‘is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. [T]he plain error doctrine . . . is not . . . a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment, for reasons of policy. . . . In addition, the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly.'' (Internal quotation marks omitted.) Schimenti v. Schimenti, supra, 181 Conn.App. 392-93.

         When an appellate court addresses a claim of plain error, the court ‘‘first must determine if the error is indeed plain in the sense that it is patent [or] readily discernable on the face of a factually adequate record, [and] also . . . obvious in the sense of not debatable. . . . This determination clearly requires a review of the plain error claim presented in the light of the record.'' (Internal quotation marks omitted.) Id., 393. In addition, ‘‘the reviewing court must examine that error for the grievousness of its consequences in order to determine whether reversal under the plain error doctrine is appropriate. A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.'' (Internal quotation marks omitted.) Id.

         The standard employed by a court reviewing a claim of judicial bias ‘‘is an objective one, not the judge's subjective view as to whether he or she can be fair and impartial in hearing the case. . . . 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.'' (Internal quotation marks omitted.) State v. Carlos C., 165 Conn.App. 195, 207, 138 A.3d 1090, cert. denied, 322 Conn. 906, 140 A.3d 977 (2016).

         A reviewing court is mindful that ‘‘adverse rulings, alone, provide an insufficient basis for finding bias even when those rulings may be erroneous.'' Schimenti v. Schimenti, supra, 181 Conn.App. 395. ‘‘[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.'' (Internal quotation marks omitted.) Id.

         In his brief on appeal, the defendant has identified, in isolation, words and phrases stated by the court that he contends demonstrate judicial bias and misconduct. Our reading of the transcript of the September 14, 2016 hearing demonstrates that the defendant has taken the court's words and ...


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