State v. DeJoseph

• Decision Date: 29 April 1966
• Docket Number: No. CR,CR
• Citation: 3 Conn.Cir.Ct. 624,222 A.2d 752
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: STATE of Connecticut v. John DeJOSEPH. 14-48039.

Page 752

222 A.2d 752

3 Conn.Cir.Ct. 624

STATE of Connecticut v. John DeJOSEPH.

No. CR 14-48039.

Circuit Court of Connecticut, Appellate Division.

Argued Jan. 17, 1966.

Decided April 29, 1966.

William D. Graham, Hartford, for appellant (defendant).

Arnold Markle, Chief Pros. Atty., for appellee (state).

KOSICKI, Judge.

The sole assignment of error is that the court refused to appoint counsel to represent the defendant, who was indigent and without funds and was charged with violating § 53-304 of the General Statutes in that he failed to support his wife and children. This offense is a misdemeanor punishable by a maximum penalty of not more than one year's confinement in jail. The defendant was convicted after a trial to the court, without a jury, and was sentenced to jail for a period of six months. At no stage of the proceedings was he represented by counsel. He appealed from the judgment and was released under bond of $1000. He has had assistance of competent counsel in the preparation and presentation of his appeal. ¹ The defendant made no request for a finding of facts and thus we are deprived of the subordinate facts as found by the court and the conclusions of the court relative thereto, and particularly the fact of indigency asserted by the defendant. ² Because of the important constitutional right claimed to have been violated, and inasmuch as a certified transcript of the entire evidence has been annexed to the appeal as an exhibit, we shall consider the assigned error by a review of the entire record, as the parties have done in presenting this appeal.

The evidence and record disclose the following facts: On May 20, 1965, an arrest warrant was issued charging the defendant with nonsupport in violation of § 53-304. ³ Following his arrest, he was warned of his right to counsel on May 21. ⁴ At that time he advised the court that he intended to seek an attorney. During the period between his arrest and his arraignment on May 28, he was free of actual custody under bail of $500. On May 28, before being put to plea, he was asked by the court (Reicher, J.) whether he had obtained a lawyer, and a colloquy ensued between the court and the defendant, all of which appears in the footnote. ⁵ On June 10, the defendant was presented for trial. When asked by the court (Holden, J.) whether he had a lawyer, he said: 'No, sir. I did ask the court for a lawyer but I haven't receiver any.'

The prosecution then proceeded with the trial and presented as witnesses the wife of the defendant and a representative of the state welfare department. From the evidence presented, it clearly appears that the defendant and his wife intermarried on February 2, 1952; that from this union they have seven surviving children ranging in age from thirteen years to one and one-half years; that the defendant had been separated from his wife and family for four years; that the last-born child was conceived during a brief period of attempted reconciliation which failed to materialize; that the family of the defendant was on state aid and in the course of approximately four years had received from the state $14,561.20, at the rate of $290.75 per month; that the defendant had contributed very little toward his family's support and the burden fell almost entirely on the state; and that during this period the defendant was incarcerated on conviction for nonsupport for 304 days from February 19 to December 18, 1964, during which time he had no earning capacity. After his release, he failed to make any payment toward the support of his family although he was employed on a part-time basis at a local restaurant and full-time employment was available to him if he chose to accept it. He had been employed before his incarceration. He had claimed at various times that some undisclosed illness prevented his fuller employment, but when he was advised by the welfare department to consult a physician and produce proof of physical disability, he refused to do so.

I

The basic claim of the defendant is that he was denied his constitutional right to counsel and deprived of the rights of due process and the aid of appointed counsel contrary to the guarantees of the sixth and fourteenth amendments to the constitution of the United States and article first, § 9, of the constitution of Connecticut (now article first, § 8). It requires no extended consideration on our part of the lengthy argument of the defendant that this constitutional guarantee may be invoked, or knowingly and intelligently waived, in all capital cases and in cases of grave crimes partaking of the character of felonies. See such cases as Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Eskridge v. Washington State Board, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (denial of transcript for use on appeal); Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (same); Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830; State v. Reid, 146 Conn. 227, 234, 149 A.2d 698.

These cases and others cited by the defendant are not determinative of the precise issue before us. In each of the above cases, the crime charged was one involving capital punishment or consisted of a felony for which the penalty imposed could be substantial imprisonment. Furthermore, in no case cited by the defendant was the fact of indigency questioned by the prosecution. It was either admitted or not denied, or the record was silent on that crucial point. In the present case, the record shows that the defendant was advised of his right to counsel and to bail, in conformity with § 54-1b of the General Statutes ⁶ (as then applicable; later amended by Public Acts 1965, Nos. 185, 436 § 1, which in no way affect adversely the right claimed by the defendant), and was admitted to bail; but (by a logical inference from his own statements) he made no effort to obtain counsel for the reason that he insisted on the right to the services of counsel appointed by the court.

II

The defendant makes the broad claim that in all cases charging criminal offenses, including misdemeanors, an indigent accused is entitled, as a matter of constitutional right, to the services of court-appointed counsel at public expense. He points to no authority for this claim, either statutory or as enunciated in judicial decisions of the Supreme Court of the United States or of our own Supreme Court. He relies principally on what appear to be dicta in some of the individual opinions or decisions of the majority in cases before the United States Supreme Court or in decisions in other state jurisdictions and in federal courts. Among such cases cited by the defendant are In re Johnson, 62 Cal.2d 325, 42 Cal.Rptr. 228, 398 P.2d 420 (traffic offenses); Harvey v. State of Mississippi, 340 F.2d 263 (5th Cir.) (bootlegging); Evans v. Rives, 75 U.S.App.D.C. 242, 126 F.2d 633, 638 (nonsupport); People v. Witenski, 15 N.Y.2d 392, 259 N.Y.S.2d 413, 207 N.E.2d 358 (apple stealing). In the first case cited, the defendant was convicted of a multiplicity of misdemeanor charges and received consecutive jail sentences totaling 900 days. The court held that in California, under its constitution, the right to assistance of counsel was not limited to felony cases but was equally guaranteed to persons charged with misdemeanors in a municipal or other inferior court. In re Johnson, supra, 329. In the Harvey case, supra, in which the accused was sentenced to a ninety-day jail term and the payment of a $500 fine upon a plea of guilty of the charge of illegal possession of whiskey, a misdemeanor, the judgment was set aside for failure of the court to inform the accused of his right to assistance of counsel; and it was held that a waiver of the right to counsel could not be presumed from the mere fact that the accused appeared without, or failed to request, counsel. No question of indigency appears to have been raised.

To the same effect was the decision in the Witenski case, supra, in which it was held that the defendants, who apparently were able to and, after sentence to jail for stealing apples of the value of about $2, did employ legal assistance, had not waived their rights to counsel understandingly, competently and intelligently, because the trial court did not properly inform them of their constitutional right to be represented by counsel. It may also be noted that § 308 of the New York Code of Criminal Procedure specifically provided that if a defendant appear for arraignment without counsel, 'he must be asked if he desire the aid of counsel, and if he does the court must assign counsel.' See People v. Witenski, supra, 396, 259 N.Y.S.2d 413, 207 N.E.2d 358. We have no such statutory provision in Connecticut. In Evans v. Rives, supra, which, of all the cases referred to, appears to bear the closest analogy to the case before us, the defendant was presented before the Juvenile Court and pleaded guilty to a charge of nonsupport of a minor child. The prosecution was brought by the board of public welfare. The proceeding, to say the least, was a most informal one and appears to have lacked the solemnity and due regard for the defendant's rights uniformly associated with judicial proceedings. In reversing the judgment of guilty, the United States Court of Appeals held that there had been no waiver of the defendant's constitutional right to the assistance of counsel because of the entry of a plea of guilty. It is clear from the decision that the defendant had not been warned of his right to the aid of counsel. There is nothing to indicate, however, except by way of obiter (p. 637),...