State v. Barber

• Citation: 173 Conn. 153,376 A.2d 1108
• Court: Supreme Court of Connecticut
• Decision Date: 31 May 1977
• Parties: STATE of Connecticut v. Jerome BARBER.

Page 1108

376 A.2d 1108

173 Conn. 153

STATE of Connecticut v. Jerome BARBER.

Supreme Court of Connecticut.

Argued April 7, 1977.

Decided May 31, 1977.

F. Mac Buckley, Hartford, with whom, on the brief, was Hubert J. Santos, Hartford, for the appellant (defendant).

Arnold M. Schwolsky, Asst. State's Atty., with whom, on the brief, was George D. Stoughton, State's Atty., for the appellee (state).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and SPEZIALE, JJ.

LOISELLE, Associate Justice.

The defendant, Jerome Barber, was charged with rape by forcible compulsion, in violation of General Statutes § 53a-72a(a)(1). He was tried to a jury and found guilty. He has appealed from the judgment rendered on the verdict, alleging that he was denied adequate assistance of counsel. There is no claim of error on the part of the court in its charge or in its conduct of the trial.

The present case illustrates the difficulty of determining adequacy of counsel on a direct appeal from a judgment on a jury verdict rather than on a motion for a new trial or a petition for a writ of habeas corpus. When a defendant is represented at a trial by an attorney whose representation is attacked as deficient, the facts which prove or disprove a denial of adequate assistance of counsel may be more fully developed at an evidentiary hearing than on a direct appeal. The defendant, his attorney, and the prosecutor have an opportunity to testify at such a hearing as to matters which do not appear of record at the trial, such as whether there was voluntary disclosure by the state's attorney to defense counsel which made motions for disclosure unnecessary, whether, for tactical reasons, objection was not made to certain adverse testimony, just how much information the defense attorney received from his client about statements made to others, and other such relevant matters. Trial defense counsel in this case, however, is now deceased and could not testify at an evidentiary hearing. This court has previously considered on appeal claims of denial of adequate assistance of counsel; State v. Clark, 170 Conn. 273, 365 A.2d 1167; State v. Ralls, 167 Conn. 408, 356 A.2d 147; State v. Costello, 160 Conn. 37, 273 A.2d 687; and under the situation of this appeal, the issue will be reviewed.

The sixth amendment of the federal constitution requires that "the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence" in all criminal prosecutions. Article first, § 8, of our state constitution states that "(i)n all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel." The right to counsel means the right to the conscientious services of competent counsel. Palmer v. Adams, 162 Conn. 316, 320, 294 A.2d 297. Constitutionally adequate counsel is counsel whose performance is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. State v. McClain, 171 Conn. 293, 301, 370 A.2d 928; State v. Clark, supra; see McMann v. Richardson, 397 U.S. 759, 771 & n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763; Reece v. Georgia, 350 U.S. 85, 90, 76 S.Ct. 167, 100 L.Ed. 77; Gentry v. Warden, 167 Conn. 639, 646, 356 A.2d 902.

The defendant was charged with forcibly raping a young woman, who admitted that she had previously had voluntary sexual relations with him. Two of her friends testified that she had told them of the rape, one on the evening it occurred and the other the next day. The head of the police rape investigation unit testified that she heard of the complaint and contacted the victim, who recounted to her the details. The police officer was then asked, "From the description as she gave it to you of the incident, as she related it, did the action there indicate that she had been compelled to have relations with Mr. Barber on that occasion?" The answer was "Yes." The defense objected, and the court sustained the objection and ordered the answer stricken.

The defendant claims that trial counsel should have requested that the court specifically instruct the jury, at that time, to disregard the stricken testimony, because "forcible compulsion" was the sole factual issue in the case and the jurors were aware of the officer's answer during the rest of the trial. The defendant admits that at the conclusion of evidence and argument the court gave "a very clear and concise general charge on the jurors' duty to disregard objectionable evidence." There is nothing in the record to indicate in any way that the jury disregarded the court's instruction. "It is essential to any orderly trial that the jury be presumed, in the absence of a fair indication to the contrary, to have followed the instructions of the court as to the law." State v. Bausman, 162 Conn. 308, 314, 294 A.2d 312, 315; State v. Smith, 156 Conn. 378, 383, 242 A.2d 763; Schiller v. Orange Hall Corporation, 144 Conn. 327, 330-31, 130 A.2d 798. Further, it is possible that, as a matter of trial tactics, trial counsel left this area alone after objection was sustained and the answer stricken, so as not to draw further attention to the police officer's conclusion.

The defendant claims that even if it may be argued that trial counsel made a tactical decision of the nature suggested, he should have moved for a mistrial after the police officer's answer was given. It can be assumed that trial counsel was familiar with the law regarding motions for mistrial. It is well established that a mistrial should be granted only as a result of some occurrence in the trial which makes it apparent to the court that a party cannot have a fair trial. State v. Grayton, 163 Conn. 104, 112, 302 A.2d 246, cert. denied, 409 U.S. 1045, 93 S.Ct. 542, 34 L.Ed.2d 495; State v. Bausman, supra, 162 Conn. 312, 294 A.2d 312; State v. Savage, 161 Conn. 445, 449, 290 A.2d 221; State v. Leopold, 110 Conn. 55, 60, 147 A. 118. No evidence or conduct relating to the police officer's answer is given which would indicate to the court that even though the testimony had been stricken, the defendant could not have a fair trial because of it. It is highly unlikely that the court would have granted a mistrial. Under these circumstances the failure of counsel to seek a specific cautionary instruction or to move for a mistrial was not a denial of adequate assistance of counsel.

The police officer also testified that, after the defendant had been arrested on the rape charge and released, he came to see her. She warned him that "it might not be proper for him to talk to her about the case" but he then proceeded to tell her that he was ashamed of what he had done, and that he had used force on the victim. This admission was undeniably strong evidence against the defendant.

The defendant points out that the court file does not show that his counsel filed any motions for discovery or to suppress his admissions, and claims that competent counsel would have filed such motions, or would at least have requested a preliminary examination of the police officer outside the presence of the jury in order to determine the admissibility of the defendant's statement to her. Because this case comes here by direct appeal, the record does not show whether the state's attorney had voluntarily disclosed this evidence to defense counsel without waiting for a motion to be made. But in...