Phillips v. Warden, State Prison

• Decision Date: 04 October 1990
• Docket Number: No. 7762,7762
• Citation: 23 Conn.App. 63,579 A.2d 1092
• Court: Connecticut Court of Appeals
• Parties: John M. PHILLIPS v. WARDEN, STATE PRISON.

Page 1092

579 A.2d 1092

23 Conn.App. 63

John M. PHILLIPS v. WARDEN, STATE PRISON.

No. 7762.

Appellate Court of Connecticut.

Argued May 11, 1990.

Decided Aug. 28, 1990.

Certification Granted Oct. 4, 1990.

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

James A. Killen, Asst. State's Atty., with whom, on the brief, were John Connelly, State's Atty., and Patricia King, former Before EDWARD Y. O'CONNELL, FOTI and CRETELLA, JJ.

Deputy Asst. State's Atty., for appellee (respondent).

FOTI, Judge.

This is an appeal ¹ from a decision of the trial court denying the petitioner's application for a writ of habeas corpus and rendering judgment for the respondent. The application challenges the validity of the petitioner's conviction, after a jury trial, of sexual assault in the first degree, unlawful restraint in the first degree and burglary in the first degree. The petitioner claims on appeal that the habeas court improperly concluded (1) that the petitioner was not denied the effective assistance of counsel at his trial due to a conflict of interest, and (2) that the trial court's failure to inquire into defense counsel's possible conflict of interest did not warrant the issuance of the writ of habeas corpus. ² We affirm the judgment of the habeas corpus finding that the petitioner did not meet his burden of proof on these claims.

On May 13, 1983, the court sentenced the petitioner to concurrent terms of incarceration of eighteen years for sexual assault in the first degree and five years for unlawful restraint in the first degree, and to a consecutive term of twelve years for burglary in the first degree. The petitioner's total effective sentence is thirty years.

The genesis of the petitioner's claim of ineffective assistance of counsel lies in the murder conviction of his attorney, Bernard Avcollie. Avcollie had been a prominent attorney and a well known politician in the greater Waterbury area for many years prior to his conviction for the murder of his wife in 1977. Avcollie's trial took place in the judicial district of Waterbury. When his conviction was set aside by the trial judge, the state appealed. The conviction was later reinstated by our Supreme Court in 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). After denial of certiorari by the United States Supreme Court, the trial court sentenced Avcollie, on March 14, 1980, to an indefinite term of eighteen years to life imprisonment. Avcollie's judgment of conviction was affirmed by our Supreme Court on December 14, 1982, in State v. Avcollie, 188 Conn. 626, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S.Ct. 2088, 77 L.Ed.2d 299 (1983).

Avcollie's legal battle was the source of numerous headlines in the Waterbury and Naugatuck newspapers between 1975 and 1983. These publications have wide circulation in the Waterbury judicial district from which jurors for the petitioner's trial were chosen. The case against Avcollie was prosecuted by the Waterbury state's attorney's office, as was the case against the petitioner.

After Avcollie's sentence was imposed, his counsel reached an agreement with the Waterbury bar grievance committee that permitted him to continue to practice law until his direct appeals were exhausted. The grievance committee then filed a motion to have its report on Avcollie made public in order to protect clients, both current and potential. The rules of practice did not provide for temporary suspensions at that time, and the state's attorney's office would not release the information the grievance committee needed to proceed against Avcollie. The court, Henebry, J., signed the order making the report public.

As a result of the notoriety surrounding his murder case, Avcollie's once flourishing law practice rapidly diminished and he took cases that he once would have refused, including a certain sexual misconduct matter that was resolved by way of accelerated rehabilitation. That case led to referrals of other sex cases. The petitioner in the present case was arrested and held in custody Three days after the petitioner's arraignment, he was released on bail. It was then that he learned of Avcollie's personal legal situation. His friend informed him that Avcollie had been tried and convicted for the murder of his wife, that the conviction had been overturned by the trial judge, and that the state was appealing. The petitioner on the recommendation of friends and relatives, decided to retain Avcollie. He met with Avcollie again about ten days later at Avcollie's office and paid the $2000 retainer. At that meeting, Avcollie opened a file for his client. Avcollie took two pages of notes concerning the petitioner's background, his job, the criminal charges filed against him, his alibi and a list of the state's witnesses. About a month later, they met for a third time. At that time, Avcollie informed the petitioner that, because the case would probably go to trial, there would be additional fees. Avcollie did not disclose his own legal problems at any of those meetings.

                on September 11, 1982.   A friend of his secured an associate of Avcollie's to represent him at the arraignment.   The associate introduced the petitioner to Avcollie at the courthouse on the day of arraignment and suggested that the petitioner hire Avcollie to represent him in the matter.   At that first meeting, Avcollie did not tell the petitioner anything about his legal problems.   The petitioner did not move to Connecticut until 1978.   He was not aware of Avcollie's notoriety.   Avcollie [23 Conn.App. 67] agreed to represent him because he was willing to pay a $2000 retainer fee and because Avcollie did not believe the case would go to trial.   At that time, the petitioner made Avcollie aware that he intended to present an alibi defense
                

Sometime after January 20, 1983, the pair met in Avcollie's office again. At that meeting, the petitioner was told that he would have to pay for Avcollie's court time once the case went to trial. For the first time, Avcollie briefly mentioned his own legal situation. He informed the petitioner that the Connecticut Supreme Court had affirmed his murder conviction, and that he was concerned that his own legal problems could affect the jury's attitude toward the petitioner. He went into no further detail at that point. Avcollie had a twofold purpose in calling that meeting. First, he wanted the petitioner to know the status of Avcollie's criminal conviction. Second, Avcollie wanted to assure himself that his continued representation of the petitioner would be on a "cash and carry basis." When Avcollie assured the petitioner that he felt he could do a credible job despite his legal problems, the petitioner indicated that he wanted their attorney-client relationship to continue. That agreement was never reduced to writing.

During the general voir dire, Avcollie told the panel of potential jurors: "If you know anything about any of the people I have mentioned that work in my office or particularly about me, if there is anything that you know or feel about me that will inhibit your ability to judge this man fairly, then you should so indicate. You are not, of course, sitting in judgment of his attorney nor of his office staff any more than you are sitting in judgment of the state's attorney's office, you're in judgment of the defendant."

Even though Avcollie believed that most members of the jury panel knew of his conviction, he declined to ask the panelists during individual voir dire whether they were aware of his criminal conviction or whether any juror knew him from his participation in politics or local affairs.

The habeas court, in a thorough and well reasoned fifty-five page memorandum of decision, concluded that there was no actual conflict of interest and denied the petition. We agree with the judgment of the habeas court and affirm.

I

The petitioner first claims that the habeas court improperly concluded that there was no conflict of interest between the petitioner and Avcollie. Closely tied to this claim are his assertions that the court improperly defined the term conflict of interest, and that it misapplied the test enunciated in Cuyler v. Sullivan, 446 U.S. 335 "Our state and federal constitutions guarantee a criminal defendant the right to assistance of counsel. U.S. Const., amend. VI, Conn.Const., art. 1, § 8. As an adjunct to this right, a criminal defendant is entitled to be represented by an attorney free from conflicts of interest." State v. Williams, 203 Conn. 159, 166-67, 523 A.2d 1284 (1987). That right to conflict free representation applies also to matters where a conflict of interest may impair an attorney's ability to represent his client effectively. Id.

349, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980). ³

A defendant's sixth amendment right to conflict-free counsel is constitutionally distinct from that defendant's right to a competent attorney. State v. Marion, 175 Conn. 211, 215-16, 397 A.2d 533 (1978). It must also be noted that an attorney may not accept employment if the exercise of his professional judgment on behalf of his client will be, or may reasonably be, affected by his own personal interests. Rules of Professional Conduct, Rule 1.7; Code of Professional Responsibility, DR 5-101.

A CONFLICT OF INTEREST

A conflict of interest has been determined to be present where one party in interest stands to gain significantly by adducing evidence, advancing arguments or engaging in conduct that is detrimental to the interests of another party. See Festo v. Luckart, 191 Conn. 622, 631, 469 A.2d 1181 (1983); State v. Marion, supra, 175 Conn. at 219, 397 A.2d 533. " 'In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate...