Festo v. Luckart

Decision Date27 December 1983
Citation191 Conn. 622,469 A.2d 1181
CourtConnecticut Supreme Court
PartiesRalph FESTO et al. v. Bernard LUCKART et al.

Richard A. Fuchs, Bridgeport, with whom, on the brief, was Susan E. Weisselberg, law student intern, for appellant (named plaintiff).

Richard L. Albrecht, Bridgeport, with whom, on the brief, was Stewart I. Edelstein, Bridgeport, for appellant (plaintiff Clive Russell).

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, was Donald A. Browne, State's Atty., for appellees (defendants).

Before SPEZIALE, C.J., and ARTHUR H. HEALEY, PARSKEY, SHEA and SPONZO, JJ.

PARSKEY, Associate Justice.

On June 29, 1976, a jury convicted the plaintiffs, Ralph Festo and Clive Russell, former police officers in Stamford, of larceny in the first degree and acquitted them of burglary in the third degree. Festo and Russell had been represented by the same attorney at that trial. They were each sentenced to a term of not less than three nor more than six years. Their convictions were affirmed by this court on June 24, 1980. State v. Festo, 181 Conn. 254, 435 A.2d 38 (1980). They then hired separate counsel and applied for a writ of habeas corpus. The plaintiffs claimed their constitutional right to effective assistance of counsel was denied by their joint representation at trial by a single lawyer, Joseph Mirsky. Russell also contended that Mirsky's representation was ineffective because he failed to claim a violation of Russell's fourth amendment rights in the appeal. The petition was denied and the trial judge Cioffi, J., certified the case for appeal to this court.

The detailed facts of this case are set out in State v. Festo, supra. The facts relevant to the consideration of this appeal are as follows: On June 16, 1975, a neighbor of Frederick Gibbs called the police to investigate a possible burglary of the Gibbs' Stamford home. Earlier in the month, on June 8, the police had discovered that the Gibbs' home had been burglarized. This time, in the Gibbs' driveway, the police found a truck, its hood still warm, which was registered to William Caputo of Stamford. Inside the truck were, among other things, a pair of police trousers with Ralph Festo's name inside and a handbag containing some personal papers of Festo's wife.

On June 8, 1975, Russell and Caputo rented a space at an antique show in Westchester, New York, where they exhibited a bureau later identified as belonging to Gibbs. On June 12, Caputo offered to sell furniture to United Housewrecking Corporation, which buys and sells used furniture. When a buyer for United Housewrecking, Ralph Sparan, called Caputo the next day to arrange for a viewing, Russell answered the phone and directed the buyer to Caputo's home. There, Russell showed him some furniture, later identified as belonging to Gibbs, and told him it belonged to a woman whom Russell knew. Sparan requested that his employer have an opportunity to view the furniture and Russell subsequently displayed the furniture to him. At this meeting, Russell stated that the furniture belonged to his grandmother. Russell sold the furniture for $1500. When Sparan arrived later that day to pick up the furniture, both Russell and Festo were present. Russell signed a receipt for the furniture and Sparan issued Russell a check for $1500, which Russell endorsed. The check was presented to a bank for payment by Festo that afternoon.

On June 28, 1975, Caputo, accompanied by his lawyer, made a statement to the Stamford police. Later that day, Festo and Russell offered their written resignations, badges, guns, keys and other equipment. In a conversation with Lieutenant Considine, at which Caputo, Festo and Russell were present, either Russell or Festo stated that they thought the house was abandoned, that this was the only incident in which they had been involved, that it was an embarrassing situation and that they hoped other members of the department would not suffer because of it. At trial, Considine could not recall which officer made the statements. He did recall that when he asked the whereabouts of Gibbs' metric tools, it was Russell who answered, "Don't press me on it. I can't get them." Festo and Russell were arrested on July 19, 1975.

Approximately three weeks prior to their arrest, the plaintiffs, upon Russell's recommendation, met with and hired Attorney Joseph Mirsky. The plaintiffs agreed that they would share Mirsky's fee. On July 24, 1975, Mirsky filed his appearance on behalf of both men. The next day, both men pleaded not guilty. Their joint trial began on May 26, 1976.

At trial, the state attempted to introduce into evidence a diary, clipboard and stenographic paid seized from Russell's locker at police headquarters. Several incriminating entries were contained in these documents, including those for May 14 and 30, 1975, which noted Gibbs' name, address and license plate numbers and one for June 8, 1975, which referred to an auction in White Plains, New York. Mirsky objected, claiming surprise, since these items had not been included in the state's reply to the plaintiffs' August, 1975 motions for production and discovery. He also objected on fourth amendment grounds. The state explained that, two days after Russell had resigned and surrendered the key to his locker, a police lieutenant used the key to open the locker. He placed the contents in a cardboard box which remained under lock and key until almost a year later. On May 5, 1976, the police lieutenant who had custody of the box directed a detective to obtain a handwriting sample from one of the documents in it, and the incriminating entries were found. Hence, the state was unaware of this evidence until just before trial. Mirsky moved to suppress the evidence and to declare a mistrial.

At a lengthy hearing on this matter, Mirsky made an oral motion to sever, on the ground that the evidence might be very prejudicial to Festo. It appears that this motion was never acted on. The motions for suppression and mistrial were denied. When the evidence was admitted, Mirsky did not object or request an instruction to limit the evidence to Russell. Also at trial, Festo presented an alibi defense to the June 8 burglary, while Russell presented none.

After their conviction, Attorney Charles Hanken, an associate of Mirsky, took over their appeals. Included in the preliminary statement of issues, which Hanken prepared and Mirsky signed, was a fourth amendment challenge to the search of the locker and seizure of its contents. This issue was not included in the briefs to this court in the first appeal and thus, the issue was not considered. State v. Festo, supra, 262 n. 3, 435 A.2d 38.

In this appeal, the plaintiffs claim error in the habeas court's holding that their right to effective assistance of counsel, as provided by the sixth and fourteenth amendments to the federal constitution, and article first, § 8, of the Connecticut constitution, was not violated by the trial court's failure to inquire into the possibility of a conflict of interest arising out of their joint representation, and that there was no actual conflict in their defense. Russell further claims that the habeas court erred in holding that the failure to press the fourth amendment claim did not constitute ineffective assistance of counsel.

I

"Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest." Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220 (1981). The plaintiffs assert that, in order to protect that right, in every case of multiple representation the trial court has an affirmative duty to inquire about the possibility of conflict among the defendants. The plaintiffs point to State v. Marion, 175 Conn. 211, 221, 397 A.2d 533 (1978), as mandating this inquiry. The plaintiffs are incorrect in their interpretation of our holding in Marion.

In that case we noted that "[t]he potential for conflict of interest in representing multiple defendants is so grave that it ordinarily should not be permitted except in exceptional cases where the court takes adequate steps to determine whether the risk of conflict of interest is too remote to require separate representation and where it is established that the probability of a conflict arising is not reasonably foreseeable." Id., 221, 397 A.2d 533. Although admittedly this language may be read broadly, it must be viewed in context. In Marion the court appointed one lawyer to represent three defendants. In that situation, this court imposed an affirmative duty of inquiry on the trial court. 1

The plaintiffs assert that Marion should be read in light of the United States Supreme Court's more recent stated preference for a rule mandating an affirmative duty to inquire in all cases of multiple representation. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Though the Cuyler court did deem such a practice "desirable"; id., 346 n. 10, 100 S.Ct 1717 n. 10; its holding was that it cannot, as a matter of constitutional law, impose such a rule on state courts. Id., 346, 100 S.Ct. 1717. Constitutionally, an inquiry is only required whenever a "court knows or reasonably should know that a particular conflict exists." Id., 347, 100 S.Ct. 1717.

Though we are aware that some states require an inquiry in every case; see, e.g., People v. Lloyd, 51 N.Y.2d 107, 432 N.Y.S.2d 685, 412 N.E.2d 371 (1980); State v. Bellucci, 81 N.J. 531, 410 A.2d 666 (1980); and that since 1980 it is the rule in the federal system; Fed.R.Crim.Proc. 44(c); we decline to follow suit. We believe that such a per se rule is problematic. To be meaningful, an inquiry must be thorough and searching. See, e.g., United States v. Flanagan, 527 F.Supp. 902 (E.D.Pa.1981). Yet such scrutiny can be overly intrusive into the attorney-client relationship and...

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