State v. Bunker

89 Conn. App. 605

874 A.2d 301

STATE OF CONNECTICUT v. MICHAEL J. BUNKER.

(AC 23961).

Appellate Court of Connecticut.

Argued January 21, 2005.

Officially released June 14, 2005.

Schaller, Flynn and DiPentima, Js.

Kirstin B. Coffin, special public defender, for the appellant (defendant).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Adam B. Scott, assistant state's attorney, for the appellee (state).

Opinion

SCHALLER, J.

The defendant, Michael J. Bunker, appeals from the judgment of conviction, rendered after a jury trial, of sale of narcotics in violation of General Statutes § 21a-277 (a) and possession of narcotics in violation of General Statutes § 21a-279 (a), and, following his plea of nolo contendere, of having previously been convicted of sale of narcotics and possession of narcotics. On appeal, the defendant claims that the trial court improperly (1) denied his motion for disqualification of the judicial authority, (2) denied his motion to identify the informant and (3) permitted the state to introduce evidence of other misconduct. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant's appeal. The state alleged that the defendant sold cocaine to an undercover narcotics task force officer in Manchester on July 19, 2001. The state charged the defendant in a two part information. The first part charged the defendant with the substantive offenses of sale of narcotics in violation of § 21a-277 (a) and possession of narcotics in violation of § 21a-279 (a). The second part charged the defendant with being a repeat offender for the purpose of sentencing and alleged that he previously had been convicted of having violated both § 21a-277 (a) and § 21a-279 (a). The second part of the information alleged that the prior conviction for the sale of narcotics occurred in 1996, that the prior conviction for possession of narcotics occurred in 1989 and that both convictions were obtained in the Superior Court, geographical area number nineteen, in the judicial district of Tolland. On May 13, 2002, the defendant entered a not guilty plea to the first part of the information and elected to be tried by the jury.

The defendant filed two motions that are relevant to his appeal. First, the defendant filed a motion for disqualification of the judicial authority. Second, the defendant filed a motion to identify the informant. After conducting hearings on the motions, the court denied each in turn.

On November 13, 2002, the jury found the defendant guilty of the charges in the first part of the information. Subsequently, the court accepted the defendant's nolo contendere plea to the charges contained in the second part of the information. On January 9, 2003, the court sentenced the defendant to a total effective term of imprisonment of thirty years, execution suspended after twenty years, and five years of probation.

The jury reasonably could have found the following facts. In January, 2001, a Vernon police officer notified James Graham, a detective with the Manchester police department assigned to a multijurisdictional narcotics task force, that an informant had provided information that an individual named "Mike" was selling cocaine in Vernon and Manchester, and would be at the Acadia Restaurant in Manchester. Another member of the task force, Timothy Edwards, a sergeant in the South Windsor police department, was assigned to work undercover, to meet "Mike" at the restaurant and to attempt to purchase cocaine from him.

On July 19, 2001, Edwards drove an undercover car to the restaurant and immediately saw a person who matched the description that he had been given of Mike. The person was a white male in his late thirties who wore a T-shirt and a blue baseball cap. Edwards later identified that person as the defendant. Other officers were in the vicinity to monitor the situation and, although Edwards wore an audio transmitter for safety purposes, he was alone in his car. When Edwards approached and asked the defendant if he was "Mike," the defendant responded, "Yes." Edwards sat next to the defendant on a wall outside the restaurant until the defendant suggested that they take a ride. They both got into the undercover car, and Edwards drove away. The defendant told Edwards that he wanted to be dropped off at the Free Spirit Cafe in Vernon. On the way there, the defendant took crack cocaine from his sock and gave it to Edwards in exchange for $50. After Edwards drove the defendant to the Free Spirit Cafe, he returned to the Manchester police department and delivered the cocaine to another member of the task force. Later, when Edwards was shown an array of photographs, he selected the photograph of the defendant as the person named "Mike," who had sold him the cocaine. Edwards was the only person who observed the defendant in possession of narcotics on July 19, 2001. Additional facts will be set forth as necessary.

I

First, the defendant claims that the court improperly denied his motion for disqualification of the judicial authority. We disagree.

The following additional facts are relevant to the defendant's claim. In his motion for disqualification filed pursuant to Practice Book §§ 1-22¹ and 1-23,² the defendant requested, pursuant to canon 3 (c) of the Code of Judicial Conduct,³ that the trial judge disqualify herself. The defendant attached an affidavit to his motion for disqualification setting forth the facts on which he relied. In the affidavit, the defendant attested that at the time of his prior drug convictions in 1989 and 1996, the judge had served in the judicial district of Tolland as a prosecutor with and as supervisor of the prosecutors there who handled the defendant's cases, and that those convictions formed the basis of the second part of the information alleging that he was a second offender. The defendant also attested that the judge, as a state's attorney, had represented the state at a probation modification proceeding in 1992 in which she recommended an additional condition of probation for him. On that basis, the defendant argued that the judge had personal knowledge of evidentiary facts concerning the current proceeding by virtue of the prior prosecutions.

On November 5, 2002, the court, Swords, J., conducted a hearing on the defendant's motion at which the defendant argued that pursuant to canon 3 (c), disqualification was necessary to avoid the appearance of partiality. The court denied the motion. Although Judge Swords acknowledged that she had been the supervisor in the office of the state's attorney in geographical area number nineteen when the defendant was convicted in 1989 and had been the state's attorney for the judicial district of Tolland when the defendant was convicted in 1996, she stated that there was no evidence that she had participated in either of the prosecutions. The judge stated that the only evidence of her involvement with the defendant was the transcript from the 1992 probation modification proceeding, attached to the defendant's motion, that resulted in an additional condition of probation to which he did not object. The judge stated that prior to learning of the defendant's motion, she was not aware of the defendant's prior drug convictions from the judicial district of Tolland, nor did she have any recollection of the probation modification proceeding.

The judge stated that she "has never been an attorney involved in the matter in controversy in this case which is the [first part of the] information . . . . [N]or has this court ever served with any attorney involved in the prosecution of [the first part of the information]. . . . The court finds that a reasonable person knowing all the circumstances would not conclude that merely because the trial court was a supervisor or an attorney in the same office that prosecuted the defendant, that the court could not be impartial in this matter."

The defendant claims that the court improperly denied his motion for disqualification of the judicial authority. Specifically, the defendant argues that pursuant to canon 3 (c), Judge Swords should have recused herself because her impartiality might reasonably be questioned as a result of having served as a supervisor in the state's attorney's office in geographical area number nineteen when he was convicted in 1989 and as head of the office of the state's attorney in the judicial district of Tolland when he was convicted in 1996—the same convictions that comprised the second part of the state's information. In addition, the defendant contends that the trial judge's impartiality might reasonably be questioned as a result of her role as prosecutor at a probation modification proceeding in 1992 when she recommended an additional condition of probation for him.

As a preliminary matter, we set forth the legal principles that govern our resolution of the defendant's claim and the applicable standard of review. Canon 3 (c) (1) "requires a judge to disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." (Internal quotation marks omitted.) State v. Webb, 238 Conn. 389, 460, 680 A.2d 147 (1996). "Even in the absence of actual bias, a judge must disqualify himself [or herself] in any proceeding in which his [or her] impartiality might reasonably be questioned, because the appearance and the existence of impartiality are both essential elements of a fair exercise of judicial authority." (Internal quotation marks omitted.) Id., 460-61.

The standard for determining whether a judge should recuse himself or herself pursuant to canon 3 (c) is well established. "The standard to be employed 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...