State v. Blake
| Decision Date | 23 October 1968 |
| Citation | 249 A.2d 232,157 Conn. 99 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Richard O. BLAKE. |
Jerrold H. Barnett, Special Public Defender, for appellant (defendant).
David B. Salzman, Asst. State's Atty., with whom, on the brief, were George R. Tiernan, State's Atty., Richard P. Sperandeo and Robert K. Walsh, Asst. State's Attys., for appellee (state).
Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.
The defendant was convicted in a trial to the jury on one court charging indecent assault (General Statutes § 53-217) and two counts charging the commission of acts likely to impair the morals of a minor child. General Statutes § 53-21. From the judgment of guilty he takes this appeal.
The state claimed that the defendant indulged in misconduct with Mikey Citak, who, at the time of the trial, was a boy of nine, and with John Briers, who, at the time of the trial, was a boy of eleven.
Soon after the defendant's arrest, the father of the Citak boy telephoned the defendant and asked to talk to him. The defendant promptly communicated this request to Attorney William H. Regan, who was then representing him, and shortly thereafter a meeting was arranged between Theodore Citak, Sr., the defendant and Attorney Regan, at the latter's office.
On the third day of the trial, which was a Thursday, one of the state's witnesses was Citak, Sr., who testified, in effect, that his son told him of the defendant's misconduct. See cases such as State v. Segerberg, 131 Conn. 546, 549, 41 A.2d 101, 157 A.L.R. 1355. Two other witnesses thereafter testified for the state, and the defense opened its case and examined two witnesses. On the fourth day, Friday, three more witnesses testified for the defendant, and the direct examination of the defendant, who chose to take the stand, was completed. The trial was then adjourned until the following Wednesday, when the cross-examination of the defendant was concluded. Thereafter, Attorney Charles G. Albom, who conducted the trial, moved to permit Attorney Regan to withdraw as counsel and to testify regarding certain statements claimed to have been made by Citak, Sr.
A conference in chambers ensued. Neither the claims made nor the court's views as to those claims, as they developed in the conference, were formalized in the record, except that the court stated that defense counsel had made the motion because of claimed surprise by the direct testimony which Citak, Sr., had given on Thursday of the previous week as to the conversation in Attorney Regan's office. The court denied the motion on the ground that counsel could not reasonably claim surprise. Prior to the motion to withdraw, Attorney Regan had participated in the trial by sitting at the counsel table with Attorney Albom and consulting with him, but the latter, alone, had examined the witnesses.
Number 19 of the Canons of Professional Ethics (Practice Book, p. 8), reads as follows:
This does not disqualify or render incompetent, as a witness, an attorney who has participated in a trial, and it is error to refuse to permit him to offer himself as a witness. Lebowitz v. McPike, 151 Conn. 566, 570, 201 A.2d 469; Miller v. Urban, 123 Conn. 331, 334, 195 A. 193, 118 A.L.R. 951; Sengenbush v. Edgerton, 120 Conn. 367, 370, 180 A. 694; Erwin M. Jennings Co. v. DiGenova, 107 Conn. 491, 497, 141 A. 866.
Although it is error to refuse to permit an attorney to testify as a witness, even though he is participating in the trial and remains in the case, it is, however, a violation of Canon 19 and a serious impropriety for him so to do except (1) as to merely formal matters or (2) where the necessity for his testifying arises from an emergency the likelihood of which could not reasonably have been anticipated in time for him to withdraw from the case before trial. See Erwin M. Jennings Co. v. DiGenova, supra.
Here, however, the attorney asked to withdraw from the case before taking the stand as a witness, and this withdrawal was quite feasible since he had not actively participated in the examination of the witnesses and the progress of the trial would not have been impeded. Thus, the present case differed from a situation in which an attorney offers himself as a witness while remaining in the case.
The proper course, in a situation such as this, would be for the attorney to withdraw from the case as soon as it became reasonably foreseeable that his testimony on a material matter might be likely to be required. On this record, it is not clear that any necessity for the testimony of Attorney Regan would have been reasonably foreseeable until the direct testimony of Citak, Sr., on Thursday. Although it is not entirely clear, the court seems to have felt that the motion to withdraw was unduly delayed.
Our rule refusing to hold an attorney incompetent as a witness, even if his conduct as a witness is an unethical violation of Canon 19, is based on the ground that the interests of the client should not be jeopardized in order to discipline his attorney. See Erwin M. Jennings Co. v. DiGenova, supra, 107 Conn. 500, 141 A. 866. Ours is the general rule. 6 Wigmore, Evidence (3d Ed.) § 1911, p. 595; 97 C.J.S. Witnesses § 71.
The court was in error in refusing to permit the withdrawal of Attorney Regan from the case and also in holding, in effect, that he was incompetent as a witness.
Since there must be a new trial, we consider one other claim of error which is likely to arise on the retrial.
The defendant chose to put his character in issue as he is permitted to do. State v. McGuire, 84 Conn. 470, 485, 80 A. 761; 1 Wigmore, op. cit. § 56, p. 450; McCormick, Evidence § 158, p. 333. It is not, however, his general good character which he may put in issue but only such specific traits of his character as are involved in the crime or crimes as charged....
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