Palmer v. Adams

• Decision Date: 01 February 1972
• Citation: 162 Conn. 316,294 A.2d 297
• Court: Connecticut Supreme Court
• Parties: Darryl PALMER et al. v. Frederick E. ADAMS, Warden, Connecticut State Prison. Solomon K. PALMER, Jr., et al. v. STATE of Connecticut.

Page 297

294 A.2d 297

162 Conn. 316

Darryl PALMER et al. v. Frederick E. ADAMS, Warden, Connecticut State Prison.

Solomon K. PALMER, Jr., et al. v. STATE of Connecticut.

Supreme Court of Connecticut.

Feb. 1, 1972.

Emanuel Margolis, Stamford, with whom, on the brief, were Julius B. Kuriansky and Sydney C. Kweskin, Stamford, for appellants (plaintiffs) in each case.

Donald A. Browne, Asst. State's Atty., with whom, on the brief, was Joseph T. Gormley, Jr., State's Atty., for appellee (defendant) in each case.

Before HOUSE, C.J., and COTTER, THIM, SHAPIRO and LOISELLE, JJ.

THIM, Associate Justice.

Solomon K. Palmer, Jr., eighteen years of age, Darryl Palmer and Arturo Palmer, both nineteen years of age, and Cary Palmer, sixteen years of age, were found guilty in November, 1968, of the crime of rape in violation of § 53-238 of the General Statutes. The record discloses these facts: On June 6, 1968, shortly after noon, the Stamford Police Department received a telephone call from a woman in Stamford reporting that she was in the process of taking her fourteen-year-old daughter to a hospital after a complaint by the daughter that she had been raped by four individuals. Police officers were immediately assigned to investigate the incident. At the hospital, the victim related to the officers that she had been forcibly assaulted by four individuals, three of whom she knew by name. Within two hours after the initial complaint had been received by the police department, the police took the four petitioners into custody.

During the trial, the victim testified to the effect that at approximately 10:30 on the morning of June 6, 1968, she was walking on a public street in Stamford when she came upon the petitioners seated in an automobile on the street. They offered her a ride in the automobile and when she refused this offer she was forcibly taken into the automobile against her wishes. She further testified that she was taken to the attic of a home on Stillwater Avenue in Stamford and was ordered to remove her clothing. Having refused to do so, Solomon Palmer, Jr. assaulted her and she was thrown to the floor. Her clothing was removed against her will and she was forcibly raped by each of the petitioners. She was also forced to commit an indecent assault on Solomon Palmer, Jr. Thereafter, she was taken from the home, released, and ordered not to tell anyone what had happened or that further harm would come to her.

A physician who examined the victim at about 1 o'clock on the afternoon of the day of the alleged crime testified that in his opinion the victim had been forcibly raped. Numerous spermatozoa were found in the victim's vagina and her vagina was very much abused, bloody and bruised. Police testimony revealed that the undershorts of each of the petitioners were taken and forwarded to the State Toxicology Department where an examination revealed the presence of semen on each of the undergarments.

Following a jury verdict of guilty in the Superior Court, Solomon, Darryl and Arturo were sentenced to imprisonment in the state prison while Cary was sentenced to confinement at the Cheshire Reformatory. Prior to and during the trial and at the time of sentencing, all four defendants were represented by Attorney Leslie S. Stallworth. In January, 1969, through another attorney, the four defendants petitioned for a new trial pursuant to General Statutes § 52-270 and in October, 1969, Darryl, Arturo and Solomon petitioned for a writ of habeas corpus. Thereafter, on a motion by the state, the petition for a new trial was ordered by the court to be transferred to Hartford County to be consolidated with the habeas corpus proceeding. ¹ The two cases were tried simultaneously and in a judgment rendered by the court in March, 1970, both the application for a new trial and the petition for a writ of habeas corpus were denied and dismissed. Their request for certification for an appeal having been granted, the petitioners appealed to this court. Pursuant to a written stipulation of the parties, the court ordered that the appeals be combined and that only a single record be presented.

The primary issue before this court is whether the petitioners at the jury trial were denied effective representation of counsel within the meaning of the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution.

The petitioners' application for a new trial was based on allegations that their privately retained defense counsel was inadequate and ineffective at the trial in violation of their rights of due process, that no appeal was taken because the counsel failed to provide a record on which an appeal could be based, and that the petitioners had a just defense at the time of the trial. The petition for habeas corpus was also based on the claim of inadequate and ineffective counsel. In the complaint, they alleged that by reason of the defense counsel's inexperience, incompetency and neglect he (1) failed to file appropriate and essential pretrial motions, (2) failed to challenge the jury array on the issue of cross-section of the community, (3) failed to object and to take exception to prejudicial and inadmissible evidence, and (4) failed to take numerous other steps to provide the petitioners with an adequate and appropriate defense. Having screened the records and transcript with the proverbial 'fine tooth comb,' the petitioners offered approximately thirty-five claimed errors alleged to have been made by the defense counsel and which we find unnecessary to reiterate in this opinion.

With regard to this issue the law is clear. The sixth amendment to the United States constitution, applicable to the states via the fourteenth amendment, 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 the Connecticut constitution similarly states that '(i)n all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel.' It is well-established law that the mere perfunctory appearance of counsel will not satisfy the constitutional mandate. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. Rather, the right to counsel means that one has a right to the conscientious services of competent counsel. Von Moltke v. Gillies, 332 U.S. 708, 722-723, 68 S.Ct. 316, 92 L.Ed. 309; Johnson v. Zerbst, 304 U.S. 458, 462-463, 58 S.Ct. 1019, 82 L.Ed. 1461; Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; United States v. Wight, 176 F.2d 376, 378 (2d Cir.), cert. denied, 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586. This constitutional right to timely and effective assistance of counsel is one of those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.' Powell v. Alabama, supra, 287 U.S. 67, 53 S.Ct. 63.

Proof of incompetent counsel is held to a stringent standard. Musgrove v. Eyman, 435 F.2d 1235, 1239 (9th Cir.); United States ex rel. DiRienzo v. New Jersey, 423 F.2d 224, 228 (3d Cir.); United States v. Ballard, 423 F.2d 127, 134 (5th Cir.); Scalf v. Bennett, 408 F.2d 325, 327, 328 (8th Cir.); Linebarger v. Oklahoma 404 F.2d 1092, 1095 (10th Cir.); United States v. Wight, supra, 176 F.2d 379. 'If counsel's representation is so 'horribly inept' as to amount to 'a breach of his legal duty faithfully to represent his client's interests,' . . . there has been a lack of compliance with the fundamental fairness essential to due process.' United States ex rel. Maselli v. Reincke, 383 F.2d 129, 132 (2d Cir.). In determining whether a defense counsel was competent, we must be careful in using hindsight for in 'almost any case a hindsight combing of the record will reveal possible alternatives in trial tactics.' United States v. Ballard, supra. The issue, therefore, 'is not what counsel should have done to constitute the proper representation of . . .(the petitioners) considering the case in retrospect . . ., but rather, whether in the circumstances, as viewed at the time,' the petitioners received effective assistance of counsel. Kruchten v. Eyman, 406 F.2d 304, 312 (9th Cir.). As we stated in State v. Costello, 160 Conn. 37, 40, 273 A.2d 687, 688: "Where inadequacy of counsel is alleged, . . . independently stringent requirements have become well established. Thus, we have held that relief may be obtained only when representation has been so woefully inadequate 'as to make the trial a farce and a mockery of justice.' . . . Errorless counsel is not required, and before we may vacate a conviction there must be a 'total failure to present the cause of the accused in any fundamental respect." . . . 'When reviewing cases charging incompetence of counsel, we are seeking to vindicate the most fundamental of rights. We are not conducting a seminar in trial procedures, at least where the tactics involved are those over which conscientious attorneys might differ . . . A convicted defendant is a dissatisfied client, and the very fact of his conviction will seem to him proof positive of his counsel's incompetence."

While granting that errors may have been made by the defense counsel the court concluded that Attorney Stallworth adequately and competently prepared the petitioners' defense, that he rendered reasonably errective assistance and loyalty, that he displayed complete good faith and dedication to the petitioners in his presentation of their cause at the trial, that the petitioners failed to demonstrate ineffective and inadequate assistance of counsel, and that the record and transcript failed to indicate that the trial representation was a mockery of justice, a sham or a farce, perfunctory, in bad faith, or shocking to the conscience. The court further concluded that the petitioners failed to demonstrate that the specific alleged errors of omission or commission would have been effective in the trial...