Phillips v. Warden, State Prison, No. 14112

• Court: Supreme Court of Connecticut
• Writing for the Court: BORDEN; COVELLO, Associate Justice, with whom F.X. HENNESSY
• Citation: 220 Conn. 112,595 A.2d 1356
• Parties: John M. PHILLIPS v. WARDEN, STATE PRISON.
• Docket Number: No. 14112
• Decision Date: 13 August 1991

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595 A.2d 1356 220 Conn. 112 John M. PHILLIPS
v.
WARDEN, STATE PRISON. No. 14112. Supreme Court of Connecticut. Argued May 3, 1991.
Decided Aug. 13, 1991.

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[220 Conn. 113] Timothy H. Everett and Giovanna M. Tiberii, Certified Legal Intern, with whom, on the brief, were Todd D. Fernow and Michael R. Sheldon, Hartford, for appellant (petitioner).

James A. Killen, Assistant State's Atty., with whom, on the brief, were John M. Connelly, State's Atty., and Patricia King, Former Deputy Asst. State's Atty., for appellee (respondent).

Before [220 Conn. 112] SHEA, GLASS, COVELLO, BORDEN and FRANCIS X. HENNESSY, JJ.

[220 Conn. 113] BORDEN, Associate Justice.

The dispositive issue in this habeas corpus appeal is whether the petitioner, John M. Phillips, was denied his right to the effective assistance of counsel under the sixth amendment to the United States constitution ¹ because an actual conflict of interest adversely [220 Conn. 114] affected his lawyer's performance. In 1983, the petitioner was convicted, after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70, unlawful restraint in the first degree in violation of General Statutes § 53a-95, and burglary in the first degree in violation of General Statutes § 53a-101. Prior to and throughout the petitioner's trial for these offenses, his attorney was Bernard L. Avcollie, a convicted murderer who had been allowed to continue legal practice until he had completed the process of appealing his conviction. We conclude that, under the particular facts of this case, the petitioner was denied his right to the effective assistance of counsel, and that he is therefore entitled to a new trial.

The petitioner appeals from the judgment of the habeas court, Axelrod, J., denying his petition for a writ of habeas corpus. In the habeas court he claimed that: (1) he was denied his constitutional right to the effective assistance of counsel at his criminal trial because Avcollie was burdened by an actual conflict of interest that adversely affected Avcollie's performance on his behalf; and (2) the trial court at his criminal trial, Henebry, J., denied him his constitutional right to the effective assistance of counsel by failing to inquire about a possible conflict of interest that the court knew or should have known existed. With respect to the first claim, the habeas court concluded that no conflict of interest existed and that, even if there had been such a conflict, it did not affect Avcollie's performance as his lawyer. With respect to the second claim, the habeas [220 Conn. 115] court concluded that, although there was a potential conflict of interest about which the trial court should have initiated an inquiry, the petitioner was not entitled to a new trial

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because of an absence of an actual conflict of interest. The habeas court, accordingly, rendered judgment denying the writ of habeas corpus.

The petitioner appealed to the Appellate Court. The Appellate Court agreed with the habeas court that there had been no conflict of interest, and that it was, therefore, unnecessary to determine whether any such conflict adversely affected Avcollie's performance at the petitioner's criminal trial. Phillips v. Warden, 23 Conn.App. 63, 69 n. 3, 579 A.2d 1092 (1990). The Appellate Court also concluded that, even if the original trial court should have known of a potential conflict of interest, its failure to inquire was harmless beyond a reasonable doubt because of the absence of an actual conflict of interest. Id., at 74-75, 579 A.2d 1092. Accordingly, the Appellate Court affirmed the judgment of the habeas court. Id., at 75, 579 A.2d 1092.

We granted certification to appeal limited to two issues: (1) whether the petitioner was denied his constitutional right to the effective assistance of counsel pursuant to the sixth amendment to the United States constitution because of an actual conflict of interest that adversely affected his lawyer's performance; and (2) whether the absence of an inquiry by the trial court about a conflict of interest denied the petitioner his constitutional right to the effective assistance of counsel. ² [220 Conn. 116] Phillips v. Warden, 216 Conn. 822, 581 A.2d 1056 (1990). We conclude that, under the facts of this case, the petitioner must prevail on the first issue because (1) Avcollie violated his duty of undivided loyalty to the petitioner by continuing to represent the petitioner at his trial, and (2) as a direct result thereof, Avcollie placed himself in the untenable position of choosing to forgo individual voir dire regarding his own murder conviction. We, therefore, need not reach the second issue. Accordingly, we reverse the judgment of the Appellate Court.

The pertinent facts found by the habeas court or appearing of record are undisputed. On April 8, 1983, at the judicial district of Waterbury, the petitioner was convicted, after a jury trial, of breaking into the Naugatuck apartment of the victim, an eighty-one year old woman, at approximately 12:30 a.m. on September 2, 1982, ³ and restraining and sexually assaulting her. State v. Phillips, 17 Conn.App. 391, 392, 552 A.2d 837 (1989). The trial court sentenced the petitioner to an effective sentence of thirty years. The Appellate Court affirmed that conviction on direct appeal. Id. ⁴ After his [220 Conn. 117] conviction the petitioner filed a writ of habeas corpus which was denied by the habeas court. The Appellate

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Court affirmed the decision of the habeas court; Phillips v. Warden, supra, 23 Conn.App. 63, 579 A.2d 1092; and this appeal followed.

The petitioner's claim of a conflict of interest stems from the extensively publicized murder conviction with which his lawyer was burdened at the time of his original trial, and the claimed repercussions that the burden had on the petitioner's case. The petitioner's attorney, Avcollie, had been a prominent figure in the Waterbury area for many years prior to the events in question. He had been involved in politics in his hometown of Naugatuck since 1954, and was a state representative from 1967 through 1974, when he was defeated in a primary in which his morality became a public issue.

In October, 1975, the body of Avcollie's wife was found floating in the swimming pool of their home in Naugatuck. Twenty-three days later, Avcollie was indicted for his wife's murder, and in 1977 a jury composed of citizens from towns in the Waterbury judicial district convicted him of murdering her by strangling her to death. After the trial court set aside the conviction for insufficiency of evidence, the state appealed and this court reinstated the conviction. State v. Avcollie, 178 Conn. 450, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S.Ct. 667, 62 L.Ed.2d 645 (1980). Upon denial of certiorari by the United States Supreme Court, Avcollie was sentenced in the Waterbury Superior Court on March 14, 1980, to an indefinite term of eighteen years to life imprisonment. Avcollie appealed, and on December 14, 1982, this court affirmed his conviction. [220 Conn. 118] State v. Avcollie, 188 Conn. 626, 453 A.2d 418 (1982). On May 16, 1983, the United States Supreme Court denied Avcollie's petition for certiorari. Avcollie v. Connecticut, 461 U.S. 928, 103 S.Ct. 2088, 77 L.Ed.2d 299 (1983).

The criminal proceedings against Avcollie between November 21, 1975, when he was indicted, and May 16, 1983, when his petition for certiorari was denied, were the source of numerous headlines in the Waterbury and Naugatuck newspapers. Those newspapers have wide circulation in the Waterbury judicial district from which the jurors for the petitioner's criminal trial were chosen. This publicity had prompted Avcollie and his attorneys at his criminal trial to move twice for a change of venue because they were concerned about the negative impression that potential jurors may have gained from the publicity about the case. The state was also concerned and successfully moved in the Waterbury Superior Court for a protective order, entered on November 26, 1975, to protect Avcollie's right to a fair trial by a fair and impartial jury from being impaired by prejudicial publicity.

Avcollie continued to practice law, both before and after his conviction was reinstated and after he was sentenced, and while his appeal from his conviction was pending. In fact, there was discussion among the judges of the Superior Court about the propriety of his continuing to practice law. After his sentence was imposed, Avcollie reached an agreement with the grievance committee for the judicial district of Waterbury to permit him to practice law until all direct appeals of his murder conviction, including a petition for certiorari to the United States Supreme Court, were exhausted. The committee believed that it was powerless to take any action against Avcollie because it read the Practice Book to preclude a temporary suspension, even after conviction and pending an appeal, and because the [220 Conn. 119] state's attorney's office would not release evidence to the committee while the appeal was pending. ⁵

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[220 Conn. 120] Nonetheless, the committee, concerned that members of the public would retain Avcollie ignorant of the fact [220 Conn. 121] that he had been convicted of murder, took the unusual step of moving in the Superior Court pursuant to then Practice Book

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§ 32, ⁶ to have its report released to the public. This was, in the committee's view, the "least wrong thing to do in the circumstances." ⁷ The order of the Superior Court authorizing the public release of the committee's report was signed by Judge Henebry, who would later preside at the petitioner's criminal trial.

As a result of the notoriety concerning his prosecution for murdering his wife, Avcollie's previously flourishing legal practice suffered severely. He ordered his young associate, Michael McVerry, to leave the office...