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STATE v. CONNOR—CONCURRENCE
BEAR, J., concurring and dissenting. I agree with the
majority that the judgment of the trial court should be
reversed. I write separately, however, because I dis-
agree with much of the majority opinion. I disagree
primarily on the ground that our Supreme Court’s man-
date, set forth in its decision and its remand instructions
in State v. Connor, 292 Conn. 483, 973 A.2d 627 (2009),
was directed solely to Judge Espinosa,1 who was the
judge who had conducted the defendant’s jury trial,
and, with the required permission of the Chief Justice,
still may be able to act in accordance with the remand
instructions. Although Judge Espinosa began the hear-
ings that were necessary to follow our Supreme Court’s
remand instructions, she then was elevated to the
Appellate Court,2 and the Superior Court assigned Judge
Schuman to continue the hearings to carry out the
remand instructions. Despite Judge Schuman’s efforts,
because he had not conducted the defendant’s criminal
trial and had not reviewed the defendant’s relevant med-
ical records, he was unable to make the findings that
were required by the Supreme Court’s remand
instructions.
The defendant, Jeffrey T. Connor, has appealed from
the trial court’s judgment after remand denying him a
new trial. Judge Schuman set forth the following in
his decision: ‘‘On May 1, 2006, a jury convicted the
defendant of kidnapping in the first degree, robbery in
the third degree, robbery involving an occupied motor
vehicle, and larceny in the third degree. Following the
jury trial, the trial court, Espinosa, J., conducted a
hearing and concluded that the defendant had violated
the conditions of probation previously imposed on him
in connection with a prior, unrelated conviction. The
defendant represented himself at both proceedings. The
court revoked the defendant’s probation and sentenced
the defendant to three years of imprisonment as a result
of the violation. The court then sentenced the defendant
on the jury case to thirteen years consecutive to the
three years for violation of probation, for a net effective
sentence of sixteen years.
‘‘According to the Supreme Court, the jury could rea-
sonably have found the following facts supporting the
convictions on the substantive criminal charges. ‘On
February 24, 1997, [defendant’s former wife Marsha]
Viklinetz was operating her vehicle near her place of
employment in East Hartford. While stopped at a stop
sign, she observed the defendant on the sidewalk to
her right. Viklinetz was surprised to see the defendant
because he did not live or work in the area, and she
previously had obtained a restraining order against him.
When she saw the defendant approaching her car, Vikli-
netz locked the doors and rolled up the windows. The
defendant, however, punched his fist through the driv-
er’s side window and forced his way into the vehicle,
pushing Viklinetz into the passenger seat and gaining
control of the vehicle. The defendant proceeded onto
a highway, where he reached speeds of up to ninety
miles per hour. At times, the defendant was irrational,
threatening to kill Viklinetz and himself by driving the
car off the road. At other times, he was calm and told
Viklinetz that he loved her and that they should recon-
cile. The defendant continued to drive for approxi-
mately thirty minutes, at which time the vehicle began
to run low on fuel. The defendant stopped at a gas
station in Berlin. At that point, Viklinetz got out of
the vehicle and attempted to take the keys from the
defendant. After a brief struggle, the defendant jumped
into the vehicle alone and drove away. Viklinetz ran
into the gas station and contacted the police. Her car
eventually was recovered in New Britain.’ [Id., 488–89].
‘‘The defendant appealed. On July 14, 2009, the
Supreme Court rendered its decision. The court found
that the trial court did not violate the defendant’s consti-
tutional right to the assistance of counsel at the criminal
trial because, in accordance with the law at the time,
the defendant was found competent to stand trial and
therefore he was competent to represent himself. Id.,
505–25 (citing Godinez v. Moran, 509 U.S. 389 [113 S.
Ct. 2680, 125 L. Ed. 2d 321] [1993], and State v. Day,
233 Conn. 813, 661 A.2d 539 [1995], overruled in part
by State v. Connor, 292 Conn. 483, 528 n.29, 973 A.2d 627
[2009]). The court observed, however, that in Indiana v.
Edwards, 554 U.S. 164 [128 S. Ct. 2379, 171 L. Ed. 2d
345] (2008), a case decided after oral argument in the
defendant’s appeal, the United States Supreme Court
held that the sixth and fourteenth amendments, which
generally guarantee a criminal defendant the right to
self-representation, permit a state court to deny that
right to a defendant who, though minimally competent
to stand trial with the assistance of counsel, lacks the
mental capacity to represent himself at trial. Our
Supreme Court accordingly exercised its supervisory
powers and remanded the case to this court to deter-
mine whether the defendant was competent at the time
of trial to conduct the trial proceedings by himself.
State v. Connor, supra, 292 Conn. 525–30.’’
After analyzing our Supreme Court’s decision setting
forth the terms of its remand instructions, I conclude
that it contemplated that only Judge Espinosa could
conduct the proceedings on remand, because, inter alia,
it referred to the likelihood that she would have to
apply her recollection of the criminal pretrial and trial
proceedings in determining the defendant’s compe-
tency to represent himself at his criminal trial. In a
footnote, our Supreme Court stated: ‘‘Of course, the
issue that the trial court must address on remand con-
cerns the defendant’s competency to represent himself
at the time that the trial took place. Thus, the trial court
may elect to order an evaluation of the defendant if it
determines that such an evaluation may be useful in
ascertaining the defendant’s ability to proceed without
counsel at that time. Furthermore, if the defendant were
to persist in refusing to cooperate with any such evalua-
tion, the trial court would have no choice but to make
a determination concerning the defendant’s compe-
tency to represent himself at the trial that is limited
generally to its recollection of the proceedings and its
review of the trial transcript and arguments of counsel.’’
Id., 529 n.31. No new evaluation was ordered by either
Judge Espinosa or Judge Schuman, and neither of them
directly reviewed the defendant’s existing medical
records.
The Supreme Court analyzed the impact of Edwards
on the defendant’s right to represent himself at trial,
and it set forth and explained Judge Espinosa’s duties
on remand, as follows: ‘‘We now turn to the issue of
whether the defendant is entitled to a new trial because
he lacked the ability, due to mental illness or incapacity,
to perform the basic functions necessary for the trial
of his case. We conclude that the case must be
remanded to the trial court, Espinosa, J., for a resolu-
tion of this issue.
‘‘As we previously have explained, the United States
Supreme Court recognized in Edwards that a defendant
may be competent to stand trial if represented by coun-
sel yet lack the ability to play the significantly expanded
role required for self-representation . . . . Indiana v.
Edwards, supra, 554 U.S. 176. The court therefore con-
cluded that the [c]onstitution permits judges to take
realistic account of the particular defendant’s mental
capacities by asking whether a defendant who seeks
to conduct his own defense at trial is mentally compe-
tent to do so. That is to say, the [c]onstitution permits
[s]tates to insist [on] representation by counsel for
those competent enough to stand trial under Dusky [v.
United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d
824 (1960)] but who still suffer from severe mental
illness to the point where they are not competent to
conduct trial proceedings by themselves. [Indiana v.
Edwards, supra], 177–78.’’ (Internal quotation marks
omitted). State v. Connor, supra, 292 Conn. 525.
The court continued: ‘‘We agree with Edwards that,
in light of ‘the different capacities needed to proceed
to trial without counsel, there is little reason to believe
that [the] Dusky [competency standard] alone is suffi-
cient’ for determining whether a mentally ill or incapaci-
tated defendant who, although competent to stand trial
with the aid and assistance of counsel, also is competent
to represent himself at that trial. Id., 177. As the court
explained, ‘[d]isorganized thinking, deficits in sus-
taining attention and concentration, impaired expres-
sive abilities, anxiety, and other common symptoms
of severe mental illnesses can impair the defendant’s
ability to play the significantly expanded role required
for self-representation even if he can play the lesser
role of represented defendant.’ . . . Id., 176; see also
Massey v. Moore, 348 U.S. 105, 108, 75 S. Ct. 145, 99 L.
Ed. 135 (1954) (‘[o]ne might not be insane in the sense
of being incapable of standing trial and yet lack the
capacity to stand trial without benefit of counsel’); Pick-
ens v. State, 96 Wis. 2d 549, 567, 292 N.W.2d 601 (1980)
(‘The standard for determining competency to stand
trial is whether one is able to understand the proceed-
ings against him and to assist in his own defense. . . .
This test assumes [that] the defendant will have repre-
sentation and that he will be required only to assist
in his defense. Certainly more is required [when] the
defendant is to actually conduct his own defense and
not merely assist in it.’ . . .), overruled in part on other
grounds by State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d
716 (1997). Simply put, ‘[i]t is one thing for a defendant
to have sufficient mentation to be able to follow the
trial proceedings with the aid of a lawyer, and another
to be able to represent himself . . . .’ Brooks v.
McCaughtry, 380 F.3d 1009, 1011 (7th Cir. 2004), cert.
denied sub nom. Brooks v. Kingston, 543 U.S. 1054, 125
S. Ct. 912, 160 L. Ed. 2d 778 (2005). Moreover, when a
mentally ill or incapacitated defendant is permitted to
represent himself at trial despite his or her lack of
competence to do so, the reliability of the adversarial
process, and thus the fairness of the trial itself, inevita-
bly is cast in doubt. Although we acknowledge that the
right of self-representation exists primarily ‘to affirm
the dignity and autonomy of the accused’; . . . State
v. Brown, 256 Conn. 291, 302, 772 A.2d 1107, cert.
denied, 534 U.S. 1068, 122 S. Ct. 670, 151 L. Ed. 2d 584
(2001); we believe that that interest is outweighed by
the interest of the state, the defendant and the public
in a fair trial when, due to mental illness, the defendant
is incompetent to conduct trial proceedings without the
assistance of counsel. We therefore conclude that, when
a trial court is presented with a mentally ill or mentally
incapacitated defendant who, having been found com-
petent to stand trial, elects to represent himself, the
trial court also must ascertain whether the defendant
is, in fact, competent to conduct the trial proceedings
without the assistance of counsel. . . .
‘‘Because Edwards had not been decided prior to
the conclusion of the trial in the present case, Judge
Espinosa had no alternative, in light of our holding in
State v. Day, supra, 233 Conn. 825, but to permit the
defendant to represent himself once it was determined
that he was competent to stand trial. . . . We therefore
do not know whether Judge Espinosa would have
granted the defendant’s request to represent himself
if she had had the authority to deny the request in
accordance with Edwards and our holding in the pre-
sent case. Consequently, the case must be remanded
for a determination by the court, Espinosa, J., as to
whether the defendant then was competent, notwith-
standing any mental disability, to conduct the trial pro-
ceedings by himself. . . . In making this
determination, the trial court, which, as the court
emphasized in Edwards, is ‘best able to make [such a]
fine-tuned mental capacity [decision], tailored to the
individualized circumstances of a particular defendant’;
Indiana v. Edwards, supra, 554 U.S. 177; should con-
sider any and all relevant information, including, but
not limited to, the extent to which the defendant’s com-
petence to represent himself may have been affected
by mental illness, by the stroke that he had suffered,
and by any memory problems that he may have experi-
enced as a result of that stroke. The court also should
evaluate the extent to which the defendant may have
been feigning mental problems. Because of the defen-
dant’s refusal to cooperate with the various evaluation
teams that had been assembled to assess his compe-
tency, it is difficult to discern whether the defendant
suffered from a mental illness that, alone or in combina-
tion with his stroke, may have rendered him incompe-
tent to represent himself. Accordingly, the trial court
may seek to have the defendant examined again if it
appears that such an examination would be helpful in
resolving the issue presented on remand. . . .
‘‘We emphasize that the issue to be decided on
remand is not whether the defendant lacked the techni-
cal legal skill or knowledge to conduct the trial proceed-
ings effectively without counsel. Indeed, it appears quite
clear that he did lack such skill or knowledge. That
fact, however, has no bearing on whether he was com-
petent to represent himself for purposes of Edwards.
Rather, the determination of his competence or lack
thereof must be predicated solely on his ability to ‘carry
out the basic tasks needed to present his own defense
without the help of counsel’; id., 175–76; notwithstand-
ing any mental incapacity or impairment serious enough
to call that ability into question. Of course, in making
this determination, the trial court should consider the
manner in which the defendant conducted the trial pro-
ceedings and whether he grasped the issues pertinent
to those proceedings, along with his ability to communi-
cate coherently with the court and the jury.’’ (Footnotes
omitted.) State v. Connor, supra, 292 Conn. 525–30.
Our Supreme Court’s specific mandate was that ‘‘[t]he
criminal case is remanded to the trial court with direc-
tion to determine whether it would have denied the
defendant’s request to represent himself at trial, due to
the defendant’s mental illness or mental incapacity,
even though the defendant was deemed to have been
competent to stand trial and to waive the right to coun-
sel. If the court would have denied the defendant’s
request to represent himself at trial, the trial court shall
grant the defendant a new trial in the criminal case; if
not, the judgment in the criminal case is affirmed.’’
Id., 533.
After Judge Espinosa was elevated to this court, she
took no further action on this case.3 Despite the efforts
and actions of Judge Schuman thereafter, he ultimately
was not able to perform the specific requirements of
the remand instructions set forth by our Supreme Court
because he did not conduct the criminal trial. Our
Supreme Court recently reiterated that strict compli-
ance with its remand instructions is required: ‘‘Well
established principles govern further proceedings after
a remand by this court. In carrying out a mandate of
this court, the trial court is limited to the specific direc-
tion of the mandate as interpreted in light of the opinion.
. . . This is the guiding principle that the trial court
must observe. . . . Compliance means that the direc-
tion is not deviated from. . . . It is the duty of the trial
court on remand to comply strictly with the mandate
of [this] court according to its true intent and meaning.
No judgment other than that directed or permitted by
the reviewing court may be rendered, even though it
may be one that [this] court might have directed. The
trial court should examine the mandate and the opinion
of the reviewing court and proceed in conformity with
the views expressed therein.’’ (Internal quotation marks
omitted.) Lighthouse Landings, Inc. v. Connecticut
Light & Power Co., 300 Conn. 325, 341, 15 A.3d 601
(2011).
In accordance with our Supreme Court’s explication
of the law as set forth in Lighthouse Landings, Inc.,
taking into consideration the constitutionally mandated
change in the law of self-representation in criminal trials
set forth in Edwards, and analyzing the remand instruc-
tions in light of the history of this case after the remand,
I conclude that the appropriate remedy at this point
is to allow Justice Espinosa who, although she is an
Associate Justice of the Supreme Court, is also a Judge
of the Superior Court, the opportunity to comply with
the remand instructions if she receives the required
permission to do so. See General Statutes § 51-205
(‘‘[t]he judges of the Supreme Court shall be released
from sitting on the Superior Court, except that the Chief
Justice may assign any such judge to sit on the Superior
Court whenever in [her] judgment the public business
may require’’). If this does not occur within a reasonable
time, or if permission is denied, then the defendant
should receive a new trial. I therefore dissent from the
result reached by the majority insofar as it does not
allow for the opportunity to comply with the existing
mandate of our Supreme Court.
I also disagree with the majority’s conclusion as a
matter of law that Judge Espinosa after eight years
cannot remember sufficiently the details of the defen-
dant’s performance as a self-represented litigant, espe-
cially in light of the availability of her affidavit; see
footnote 7 of the majority opinion; the transcripts of
the trial, and other contents of the case file that could
refresh her recollection if that were necessary. See Gold
v. Warden, 222 Conn. 312, 320, 610 A.2d 1153 (1992)
(trial judge could testify at new habeas hearing after
remand taking place more than five and one-half years
after criminal trial because of unique opportunity to
observe petitioner’s demeanor throughout entire trial).
On the one hand, however, the majority uses the pas-
sage of eight years, and its conclusion as a matter of law
of a failure of judicial memory because of the passage of
those eight years, to determine that a new trial should
be granted. On the other hand, at the new trial, assuming
that it takes place despite the defendant’s possible cur-
rent (and future) lack of competence to understand
the charges and proceedings or assist counsel in his
defense, witnesses, primarily the defendant’s former
spouse, will be required to testify about events taking
place almost two decades ago. The logical but unstated
extension of the majority’s failed memory as a matter
of law analysis is that there should be no new trial but
instead there should be a reversal of the conviction
because no person, including that of the defendant’s
former spouse, can have sufficient memory after
approximately twenty years to be competent as a wit-
ness. This, however, has not been our position or the
position of our Supreme Court to date as a matter of
law or otherwise. I also am concerned by the seeming
determination by the majority that the mandate of our
Supreme Court can be vitiated and invalidated by this
court because of the mere passage of time (or for any
other reason).
I also disagree with the majority’s conclusion that a
new trial is the only option available to us in this appeal
because Judge Espinosa’s affidavit somehow now dis-
qualifies her from fulfilling our Supreme Court’s remand
instructions despite the specific requirement of those
remand instructions that Judge Espinosa, as necessary,
apply her recollection of the trial proceedings to reach
the determination required by Edwards. It is because
she conducted and, thus, observed the trial proceedings
and the defendant’s participation therein that the
Supreme Court remanded the case specifically to her
for a nunc pro tunc determination of the defendant’s
competency to represent himself during the criminal
trial.4 Compare the mandate in Ebron v. Commissioner
of Correction, 307 Conn. 342, 361–64, 53 A.3d 983 (2012),
cert. denied sub nom. Arnone v. Ebron, U.S. ,
133 S. Ct. 1726, 185 L. Ed. 2d 802 (2013). Additionally,
I do not agree that Judge Espinosa providing an affidavit
in the remand proceedings made her a material wit-
ness, such that she would be barred from subsequently
carrying out the specific remand instructions of our
Supreme Court by the provisions of rule 2.11 (a) (2)
(D) of the Code of Judicial Conduct. Judge Espinosa
was not a witness to any of the actions of the defendant
deemed to be criminal; she conducted the criminal trial
and thus observed the defendant as part of her trial
duties. Her affidavit reasonably can be viewed as her
attempt to comply with the remand instructions after
she had been elevated to a higher court, when, because
of the Superior Court assignment of the case to Judge
Schuman, she was unable to put her findings and con-
clusions into a memorandum of decision as usually
would have occurred. I have not found any precedent
supporting the majority’s position that the preparation
and submission to the court of an affidavit in the circum-
stances of this case changed Judge Espinosa’s status
from that of the uniquely qualified judge who had partic-
ipated in and rendered a decision in the relevant pro-
ceedings to that of a material witness, or a witness
offering testimony as that term usually is construed,
thus somehow disqualifying her from acting as a judge
in this case.5 Our Supreme Court specifically remanded
the matter to Judge Espinosa because she was the judge
who had the personal knowledge of what had occurred
during the relevant time frame so that she, essentially,
could articulate her findings and conclusions under the
new standard announced in Edwards. I am persuaded
that her submission of an affidavit in the remand pro-
ceedings no more made her a material witness than did
her acting as the judge during the defendant’s pretrial
and trial proceedings.6
Furthermore, I disagree with the majority’s discus-
sion and application to this appeal, despite the clear
remand instructions of our Supreme Court, of the nunc
pro tunc law it set forth in its opinion to vitiate and
invalidate those remand instructions. With respect to
the nunc pro tunc law invoked by the majority, our
Supreme Court did not find in Connor that there was
any bar grounded in the nunc pro tunc doctrine to its
mandate to Judge Espinosa on remand, and that issue
was not raised in this appeal. It, therefore, is not prop-
erly before us. It is both irrelevant to and moot as an
issue in this appeal, and it is unnecessary for this court
to address it.
1
Judge Espinosa was sworn in as a judge of the Appellate Court on March
16, 2011, and she became an Associate Justice of the Supreme Court on
March 6, 2013. Although she is currently an Associate Justice, for clarity
she is referred to herein as Judge Espinosa.
2
Judge Espinosa conducted two days of hearings, but the proceedings
were not completed before she was elevated to the Appellate Court. She
made no findings of fact or any conclusions of law.
3
The following determination required on remand by our Supreme Court
was not made by Judge Espinosa prior to her appointment to this court:
‘‘We therefore do not know whether Judge Espinosa would have granted
the defendant’s request to represent himself if she had had the authority to
deny the request in accordance with Edwards and our holding in the present
case. Consequently, the case must be remanded for a determination by
the court, Espinosa, J., as to whether the defendant then was competent,
notwithstanding any mental disability, to conduct the trial proceedings by
himself.’’ State v. Connor, supra, 292 Conn. 528. These sentences of the
Supreme Court’s opinion, inter alia, support my conclusion that the Supreme
Court clearly contemplated that only Judge Espinosa could conduct the
proceedings on remand.
4
As set forth previously in this concurring and dissenting opinion, the
Supreme Court made this clear in its opinion, including by the following
language: ‘‘Consequently, the case must be remanded for a determination
by the court, Espinosa, J., as to whether the defendant then was competent,
notwithstanding any mental disability, to conduct the trial proceedings by
himself. . . . In making this determination, the trial court, which, as the
court emphasized in Edwards, is ‘best able to make [such a] fine-tuned
mental capacity [decision], tailored to the individualized circumstances of
a particular defendant’; (footnote omitted) Indiana v. Edwards, supra, 544
U.S. 177; should consider any and all relevant information, including, but
not limited to, the extent to which the defendant’s competence to represent
himself may have been affected by mental illness, by the stroke that he had
suffered, and by any memory problems that he may have experienced as a
result of that stroke. The court also should evaluate the extent to which
the defendant may have been feigning mental problems.’’ State v. Connor,
supra, 292 Conn. 528–29.
5
I also question the majority’s failure to discuss whether the remand
instructions could be carried out only by Judge Espinosa or whether another
trial judge could perform those instructions.
6
The cases cited by the majority in support of its material witness allega-
tion are distinguishable on their facts: In Tyler v. Swenson, 427 F.2d 412,
413–14 (8th Cir. 1970), the facts involved off-the-record statements by the
trial judge: ‘‘The facts may be briefly set out. On March 15, 1965, petitioner,
contrary to advice of his counsel, pleaded guilty in state court to four
separate charges—two of assault with intent to kill, and one each of first
degree robbery and carrying a concealed weapon. He was sentenced to
[twenty] years in the Missouri penitentiary. Thereafter, pursuant to Missouri
Supreme Court Rule 27.26, V.A.M.R., petitioner filed an application for post-
conviction relief alleging that his guilty plea was involuntarily made. As
authorized by Rule 27.26, an evidentiary hearing was held before the trial
judge who had accepted petitioner’s guilty plea.
‘‘At the evidentiary hearing petitioner testified that prior to his guilty plea
the trial judge, in chambers, discussed with petitioner the alternatives of
going to trial and pleading guilty. According to petitioner, the judge made
a threat that petitioner would receive a [fifty] year sentence if found guilty
by a jury as compared with a [twenty] year sentence if he would enter a
guilty plea. Petitioner’s mother and his attorney, who had represented him
when he [pleaded] guilty, both testified at the evidentiary hearing and corrob-
orated petitioner’s testimony regarding the threat made by the trial judge. The
prosecuting attorney, as a witness for the state, verified that the conference
between petitioner and the trial judge had occurred and that the judge had
told petitioner of the [twenty] year sentence in the event he would plead
guilty. However, he could not remember whether or not the judge had said
anything about a [fifty] year sentence.
‘‘Throughout the hearing the trial judge, by his questioning of the witnesses
and by his statements from the bench, interjected his own recollection of
the events surrounding petitioner’s guilty plea. At one point in the hearing
the judge and petitioner’s trial counsel, Clement Kieffer, became engaged
in a dispute as to whether petitioner had employed another attorney, one
who had failed to appear, to defend him on three of the charges. So heated
was the controversy as to their respective recollections of the facts, that
Kieffer was ultimately held in contempt of court. At another point in the
hearing, after testimony by petitioner’s mother, as to what occurred in her
presence in the judge’s chambers, the trial judge made a statement that
petitioner’s mother in fact had never even been in the court’s chambers. In
his findings, the trial judge found that the events had not taken place as
petitioner and the other witnesses had testified.’’ (Footnote omitted.)
Additionally, the court noted that the trial judge was going to rely on
his own recollection as evidence in connection with the postconviction
evidentiary hearing: ‘‘It is true that petitioner did not call the judge as a
witness or file an affidavit of prejudice against him as provided for under
state rules. However, neither of these factors justifies a denial of a fair
hearing under 28 U.S.C.A. § 2254 (d). State procedural rules are subservient
to basic requirements of due process allowing a petitioner the right to
be confronted with adverse evidence, and to cross-examine the witnesses
presenting such evidence. In the instant case, petitioner had no opportunity
to cross-examine the trial judge since the judge did not take the stand;
furthermore, petitioner had no cause to attempt to disqualify the trial judge
until it became apparent after the hearing was concluded that the trial judge
was going to rely upon his own recollection as an evidentiary basis for
denying petitioner’s claim.’’ Id., 415.
Lepper v. United States, 233 F. 227, 230 (4th Cir. 1916) (Woods, J., concur-
ring), cited in Tyler and approximately six other reported opinions in the
almost 100 years of its existence, also involves an evidentiary matter where
the judge during the trial asked questions of a witness based on letters
acknowledging guilt written to the judge by or on behalf of the defendant.
State v. Gardner, 661 N.W.2d 116, 117 (Iowa 2003), involved a judge clearly
acting as a witness relative to an evidentiary matter after a trial over which
he had presided: ‘‘In August 2001 a jury found the defendant guilty of second-
degree robbery in a trial over which Judge George Stigler presided. After
the verdict, the State filed amended minutes of testimony in support of a
habitual violator allegation made in the trial information. See Iowa Code
§§ 902.8, .9 (2001) (providing for sentencing enhancement when defendant
is a habitual violator). These minutes included Judge Stigler as a witness,
stating the judge would testify he presided over a 1989 case in which the
defendant pled guilty to second-degree robbery.’’
None of these factual scenarios are similar to the matter before us. On
the other hand, in State v. McCarthy, 191 Vt. 498, 509, 48 A.3d 616 (2012),
the Vermont Supreme Court rejected a claim that the trial judge in the
performance of his judicial duties was a material witness: ‘‘Finally, defendant
argues that the trial judge impermissibly assumed the roles of an advocate
and a witness by recording observations on the record, out of the presence
of the jury, about the conduct of the [jury’s visit to the site of the shooting
at issue in the trial]. See V.R.E. 605 (‘A judge sitting at the trial may not
testify in that trial as a witness.’); A.O. 10, Canon 3B (5) (requiring judges
to discharge their adjudicative duties ‘without bias or prejudice’).
‘‘The judge’s on-the-record, away-from-the-jury description of the jury
view in this case did not constitute ‘testimony’ or advocacy, but was akin
to the kinds of observations judges make in the course of their duties
presiding over trials. See, e.g., State v. Forty, 2009 VT 118, ¶ 27, 187 Vt. 79,
989 A.2d 509 (describing how trial judge observed that witness had been
in courtroom during other testimony in violation of sequestration order and
therefore did not allow witness to testify); Wheeler v. Cent. Vt. Med. Ctr.,
155 Vt. 85, 95, 582 A.2d 165, 171 (1989) (‘[T]he judge’s observations [of a
juror] can be as critical to a disqualification decision as the words of the
juror herself.’). A trial court’s observations about the conduct of a trial are
inherent to its role as presiding judge, and trial courts, as a matter of course,
draw on their own observations in making legal and factual rulings. State
v. Hampton, [217 Wis. 2d 614, 620] 579 N.W.2d 260, 262–63 ([App.] (1998)
(holding that judge who presided over trial and observed dozing juror was
not by virtue of his observations a ‘material witness’ disqualified from presid-
ing over subsequent proceeding regarding extent of juror’s inattention).’’
In Hampton, the trial judge opined that a juror was drowsy, but that he
was not dozing for a period of time as long as ten minutes. Id., 618. The
Wisconsin Court of Appeals determined that the judge was not a material
witness: ‘‘We conclude that the trial court was not a material witness and,
therefore, the recusal statute did not compel it to remove itself from presiding
over the remand hearing.
‘‘ ‘A trial judge may express his or her opinion about counsel’s motions
without being subject to recusal.’ State ex rel. Dressler v. Racine County
Circuit Court, 163 Wis. 2d 622, 644, 472 N.W.2d 532, 542 (Ct. App. 1991).
This is what happened here. When the defense originally called the sleeping
juror issue to the trial court’s attention, the trial court expressed its opinion
that it observed that juror Blue was drowsy, but that he was not ‘dozing
for a period of time as long as [ten] minutes.’ A trial court’s observations
are inherent to its role as presiding judge. The trial court, as a matter of
course, considers the demeanor of witnesses in making its legal and factual
rulings. The trial court sees and hears everything that occurs before it. The
fact that the trial court, in a technical sense, ‘witnesses’ the actions of the
jurors, the testifying witnesses, the lawyers and the parties does not trans-
form the trial court into a ‘material witness’ pursuant to § 757.19 (2) (b),
STATS.
‘‘The trial court remains the judge, presiding over the proceeding and
making rulings based on the evidence and argument before it. Although
judicial rulings may be grounds for appeal, they do not necessarily form
the basis for recusal. See Liteky v. United States, 510 U.S. 540, 555 [114 S.
Ct. 1147, 127 L. Ed. 2d 474] (1994). The trial court’s conduct in the instant
case raised no basis for recusal. The trial court merely expressed its opinion
regarding the sleeping juror in ruling on the motion for a mistrial raised by
the defense. Such observation was and is an important part of the role of
trial courts in presiding over a jury trial. See Tanner v. United States, 483
U.S. 107, 125–26 [107 S. Ct. 2739, 97 L. Ed. 2d 90] (1987). Thus, the trial
court’s observations did not transform it into a material witness, requiring
recusal. The trial court’s decision to decline Hampton’s request to recuse
itself was proper.’’ State v. Hampton, supra, 217 Wis. 2d 620–21.