Sekou v. Warden, State Prison, 14061

Citation583 A.2d 1277,216 Conn. 678
Decision Date25 December 1990
Docket NumberNo. 14061,14061
CourtSupreme Court of Connecticut
PartiesTshambi SEKOU v. WARDEN, STATE PRISON.

Stephen M. Carney and Mary Chromik, Certified Legal Interns, and Timothy H. Everett, with whom, on the brief, were Todd D. Fernow and Michael R. Sheldon, for appellant (petitioner).

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

Before PETERS, C.J., and CALLAHAN, GLASS, COVELLO and HULL, JJ.

GLASS, Associate Justice.

The petitioner, Tshambi Sekou, also known as Anthony Saia, has appealed from the dismissal of his petition for a writ of habeas corpus, in which he sought to vacate the judgment of the Superior Court convicting him of arson in the first degree in violation of General Statutes § 53a-111. 1 Before the habeas court, Sekou alleged that: (1) the judgment of conviction was procured in violation of his federal and state constitutional rights to counsel of his choice; and (2) his appellate counsel rendered ineffective assistance in neglecting to raise certain constitutional issues for our review in his direct appeal, 2 namely, that the trial court deprived him of his federal and state constitutional rights to a fair trial, and his federal constitutional right to be present at his trial. 3 The habeas court rejected each of Sekou's claims, and dismissed his petition. We agree with the habeas court that Sekou's conviction was not procured in violation of his constitutional rights, and that his appellate counsel did not render ineffective assistance. Accordingly, we affirm the decision of the habeas court dismissing his petition for a writ of habeas corpus.

Our review of the habeas court's decision requires that we consider certain events that took place at Sekou's first trial upon the arson charge in January, 1972, in order to illuminate the significance of those that occurred at his second trial upon the same charge in June, 1972, during which his constitutional rights were allegedly violated. After his arrest in October, 1971, Sekou applied for appointed counsel, and attorney Richard Scalo from the office of the public defender was appointed to represent him at the January trial. Michael Mahigel, a friend of Sekou's, subsequently offered to pay private attorney Charles Hanken to defend Sekou at the January trial. Hanken apparently agreed to defend Sekou, but declined to do so after the court denied his request for a continuance.

On the first day of the January trial, Scalo filed a motion requesting that Sekou undergo a mental competency examination. Sekou argued before the court in support of the motion. On the basis of his apparent intelligence and "model" behavior in the courtroom, the court determined that he could understand the proceedings and assist in his defense and denied the motion. On the following day, Sekou was injured when his hands and/or his head went through a window at the courthouse. The court then declared the January trial a mistrial, and ordered Sekou to submit to a competency examination.

Thereafter, a psychiatrist reported that Sekou's behavior "when taken to court recently and more recent behavior at Somers [prison] indicates that he is making a conscious and planned attempt to avoid prosecution.... Past and present behavior indicate that this man will go to any extreme to gratify immediate desires. He should be considered extremely dangerous." In light of the psychiatric report, the court found Sekou competent to stand trial. On May 2, 1972, this court dismissed Sekou's appeal from that finding. State v. Saia, 163 Conn. 621, 290 A.2d 357 (1972).

Sometime during the last week of April or at the beginning of May, 1972, Scalo notified Sekou, who at that time had been incarcerated in Somers prison, that his retrial would commence on June 6, 1972. Sekou mailed letters to Hanken and private attorney Leo Flaherty in mid-May, requesting their assistance at the upcoming June trial. Sekou received a response from Flaherty, who declined the request. He never heard from Hanken. At the habeas hearing, Mahigel testified that he had been unaware that Sekou had been retried in June, 1972, but that if he had known of it, he would have provided Sekou with the funds necessary to hire private counsel.

As a result of a riot at Somers prison, the prison was generally closed to outside visitors and inmates' telephone privileges were curtailed from May 23 to May 30, and from June 1 to June 4, 1972. Mail privileges also may have been restricted during that period. On June 1, 1972, Sekou obtained an order from a judge presiding over an unrelated proceeding at the prison that he be allowed to consult with Hanken when he arrived at court for the June trial. Upon his arrival, however, Sekou discovered that Hanken was not present in the courthouse. 4 He also learned that Scalo had departed from the public defender's office for private practice, and that attorneys James Diorio and Dominick Galluzzo, both assistant public defenders, had been assigned to represent him in Scalo's place.

Diorio testified at the habeas hearing that he had been able to discuss the case with Sekou while the court considered preliminary matters for one and one-half days before jury selection for the June trial. On the day that jury selection had been scheduled to commence, however, and after the court had waited approximately forty-five minutes for Sekou to appear in the courtroom, Diorio informed the court that Sekou had refused to participate in the proceeding until represented by "competent" counsel of his own choice. Diorio also told the court that Sekou had stated that he had mailed letters to three private attorneys during the previous month but the letters had been returned due to the prison closure, and that Hanken had been denied permission to visit him at the prison during the previous week.

The court noted that Diorio was competent and that the public defender's office had represented Sekou for at least two years. Further, recollecting that Sekou's actions had so frustrated the January trial that it had been declared a mistrial, the court found that Sekou's "tactics" of demanding counsel from a distant part of the state and deliberately refusing to appear in the courtroom were a mere "ruse" to achieve the delay of his trial. The court then stated that Diorio could contact private counsel on behalf of Sekou. In fact, Diorio telephoned private attorney Robert Pigeon, but Pigeon opted not to defend Sekou.

Also with respect to Sekou's refusal to appear in the courtroom for jury selection, the court found that in light of "the prior history of [Sekou's] activities in and out of the courtroom," it was "in his best interests that he not be shackled and straitjacketed and placed in front of the jury to secure his presence in the courtroom during his trial. This court has offered [Sekou] the alternatives of either attending the trial dressed normally or hearing and seeing the trial through whatever equipment the court is able to provide down in his cell." Sekou voluntarily elected to remain in his cell, and the court decided to proceed with jury selection after installing a closed circuit television and loudspeaker system outside of his cell.

During jury selection, Sekou began shouting in his cell in a manner audible in the courtroom: "Judge Mulvey [is] a bigoted, racist pig." The court ordered a recess, and directed Diorio to warn Sekou that he would be restrained if he continued to disturb the proceedings. Diorio relayed the warning to Sekou, and upon returning to the courtroom, reported that Sekou had responded that Diorio and Galluzzo did not represent him and were prejudiced against him. Shortly thereafter, a sheriff alerted the court that Sekou had irreparably damaged the television monitor by knocking it over when returning from the men's room while accompanied by four guards. The sheriff also reported that Sekou had been "going on a rampage" in his cell, apparently breaking benches therein, and the sheriff suggested that restraints were necessary. After consulting with the sheriff, the court ordered him to restrain Sekou in a straitjacket. The court then obtained an operable audio-visual system so that Sekou could continue to observe the proceedings.

On the second day of the June trial, Galluzzo informed the court that Sekou had indicated that he was willing to participate in the proceedings, but he desired to appear in the courtroom attired in civilian clothing. Galluzzo also stated that Sekou wished to renew his request for private counsel before the court personally, and that even if the court denied the request, Sekou had indicated that he would cooperate with Galluzzo and Diorio and actively assist in his defense. Taking note of Sekou's "past history of ... deliberate actions," and finding that Sekou's "actions of yesterday indicate, clearly that he is a person who is prone to violence," the court ordered that, "for the safety of this court, its personnel, members of the jury" and "any person connected with this trial," Sekou could attend the trial only if restrained. The court also found Sekou's request for counsel a meritless "maneuver" to achieve delay and, reiterating that Sekou had been afforded competent counsel, denied the request.

The court then stated that because Sekou had expressed a willingness to cooperate with Diorio and Galluzzo, they would be afforded "any time they need to confer with their client." Thereafter, numerous recesses were ordered to permit defense counsel to consult with Sekou, and Sekou also communicated with counsel through notes sent from his cell. Sekou testified at the habeas hearing that he "started communicating more with Attorney Diorio, and ... Galluzzo [and] every five minutes somebody was running down." to his cell to speak with him.

When a witness was taken to his cell to identify him, Sekou declared that ...

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