State v. Chambers, (SC 18490) (Conn. 5/25/2010)

• Decision Date: 25 May 2010
• Docket Number: (SC 18490).
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT, <I>v.</I> ROBERT CHAMBERS.

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STATE OF CONNECTICUT,v.

ROBERT CHAMBERS.

(SC 18490).

Supreme Court of Connecticut.

Argued March 23, 2010.

Officially released May 25, 2010.

Richard W. Callahan, special public defender, for the appellant (defendant).

Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Patrick J. Griffin, senior assistant state's attorney, for the appellee (state).

Rogers, C. J., and Katz, Palmer, Vertefeuille, Zarella and McLachlan, Js.

Opinion

KATZ, J.

In his appeal from the trial court's judgment of conviction,¹ the defendant, Robert Chambers, claims that the trial court deprived him of his constitutional rights to due process and a fair trial after his trial counsel had invoked rule 3.3 (a) (3) of the Rules of Professional Conduct on the basis of counsel's conclusion that the defendant intended to offer false testimony.² In advancing this claim, the defendant raises issues relating to the standard for determining whether counsel properly has invoked rule 3.3 (a) (3), the procedures required to determine whether that standard is met and the procedures to be followed at trial once that standard has been met.

The question of what a criminal defense attorney should do when confronted with client perjury at trial has been a subject of considerable debate because of the ethical and constitutional concerns it implicates. See footnotes 13, 15 and 19 of this opinion. It is without question that a defense attorney must furnish zealous advocacy and preserve client confidences, but, at the same time, fulfill his or her duty to the court. In addition, procedures that may be prescribed to address the problem of client perjury have the potential to deprive a defendant of his right to effective assistance of counsel and his rights to due process and a fair trial, which include his right to testify in his own defense. Despite the important issues implicated in this case, however, we cannot address them in any considered way because the state of the record and the specific facts of the present case circumscribe the scope of our review. For that reason, we also need not recite at any length the overwhelming evidence relating to the brutal assault and robbery of a fast-food deliveryman upon which the jury reasonably relied to convict the defendant of assault in the first degree in violation of General Statutes § 53a-59 (a) (1), robbery in the first degree in violation of General Statutes §§ 53a-8 (a) and 53a-134 (a) (1), and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (1). On the basis of this record, therefore, we affirm the trial court's judgment.

The record discloses the following undisputed facts and procedural history, which must be set forth in some detail to explain the limits of our ability to address the issues raised on appeal. On February 8, 2006, Attorney Robert Berke was appointed as a special public defender to represent the defendant in connection with the aforementioned charges. Trial before a jury began on August 14, 2007, with Hadden, J., presiding. On August 20, after the state had presented its case-inchief, Berke made the following statement to alert the court to a potential ethical issue: "I'd just like to place the court on notice, I think that tomorrow I would likely. . . ask the court to allow my client to testify in the narrative. And the Rules of Professional Conduct require me to make that request. I'm not confident that conclusion has been reached by myself or my client that he will testify but in the event that he does I just want to tell the court I intend to do that." The state responded that, "if this scenario does take place . . . there can be no reference to the defendant's testimony in closing argument on behalf of counsel." The trial court decided to wait until the following day to address the issue, at which time another judge, Alexander, J., presided over the matter.

After meeting with Berke and Patrick Griffin, a senior assistant state's attorney, in chambers, Judge Alexander held a hearing, at which the defendant also was present. At that hearing, Berke moved to withdraw as counsel, citing "ethical responsibilities that I have to the administration of justice and to the courts and system in pursuing certain facts that cannot be placed before the Judge by me as a commissioner of the Superior Court." Berke noted that this issue applied only if the defendant took the stand to testify and he stated that "[t]here are other defense witnesses that these issues do not have any impact on." In the alternative, should the court deny his motion to withdraw, Berke asked that the defendant be permitted to testify in the narrative form, rather than the usual question and answer form. Berke confirmed that he was relying on rule 3.3 (a) (3) of the Rules of Professional Conduct, which provides that a "lawyer shall not knowingly . . . [o]ffer evidence that the lawyer knows to be false."³ Berke declined to "[give] the court a lot of detail . . . [because he had] an obligation to [his] client not to do that." On the basis of Berke's representations, the court denied his request to withdraw, but granted his request to have the defendant testify in the narrative should he decide to testify.

Judge Alexander then conducted the following canvass of the defendant on this issue:

"The Court: . . . All right. With respect to this, Mr. Chambers, I have to go over some things with you if you do choose to testify. Obviously, you have a right not to testify in a criminal trial and it's not held against you. Do you understand that, yes or no?

"[The Defendant]: Yes.

"The Court: With respect to this, the court in fact gives a particular instruction that tells juries . . . not to, in fact, use that against you. . . . So, basically, it becomes as in any criminal case, the state's responsibility to show that you're guilty beyond a reasonable doubt. You understand that?

"[The Defendant]: Yes.

"The Court: Okay. Now, if your lawyer, in fact, is not required to question you, do you understand that the jury is going to have a much different impression of your testimony?

"[The Defendant]: Yes.

"The Court: Okay. So, obviously, everyone else has been questioned, back and forth by the lawyers, all that's going to happen in this case is that he is going to say, tell the jury what happened, and you're just going to go. Okay?

"[The Defendant]: I understand.

"The Court: And you're going to be giving up any claim that this was ineffective counsel because the court is not allowing him to question you. Do you understand that?

"[The Defendant]: Yes.

"The Court: And you're making the decision over your right to remain silent. To, in fact, give up that right and go before the jury. Okay?

"[The Defendant]: Yes.

"The Court: Now, with respect to this, that also means that he is not going to be able to help you with the cross-examination, unless it is a—basically a rule of evidence, such that potentially is going to require . . . no answer. In other words, if Mr. Griffin brings up something that could be self-incrimination in another case, you would have the right to stand up and object. But, otherwise, if it has to do with the facts of this case, or with your credibility, or with your prior criminal history, there's going to be no lawyer representing you during that cross-examination. Do you understand that?

"[The Defendant]: Yes.

"The Court: Okay. And what I'm referring to, Mr. Berke, because I know you look quizzical, obviously, Mr. Griffin couldn't go into areas of unsolved crimes. So, that's what I'm suggesting. I'm not suggesting he would, but as his attorney you would obviously have, I think, that right and obligation to prevent [the defendant] from incrimination on other matters. But do you understand that once Mr. Griffin starts going, you're going to have to answer all of [the] questions?

"[The Defendant]: Yes.

"The Court: And you can't stop, and you're not going to have a lawyer to say `objection.'

"[The Defendant]: I understand.

"The Court: And, so you're going to be in a much different position than any other witness.

"[The Defendant]: I understand.

* * *

"The Court: . . . But the rule that will be followed, so you're clear . . . is the following: You take the stand. You take it at your own risk. You are not going to have this counsel represent you. You're just going to have to do a narrative with nobody stopping; you're just going to talk. If there's objectionable things that come out, the state's going to object; the court's going to stop you. The court will redirect you as to what areas you can talk about. You're going to be limited as to whether or not any objections are made on your behalf. You're going to be questioned about your testimony in your motion to suppress. You're going to be questioned about your statements, both written and oral. You're going to be questioned about your letters. It's not going to be limited to what you say. Do you understand all of that?

"[The Defendant]: Yes."

Berke then raised the question of how the defendant's testimony could be presented to the jury in closing argument. Berke proposed that, although he ethically could not discuss the defendant's testimony, the defendant should be allowed to present such argument on his own behalf. Judge Alexander decided that it was premature to rule definitively on this issue, noting that "that may be something actually Judge Hadden can rule on once the testimony is in . . . ." Nonetheless, Judge Alexander conducted the following extensive canvass of the defendant regarding closing argument:

"The Court: . . . Now, with respect to this, again, the court is going to save—because there is a jury waiting—for another day whether or not this [testimony] will be argued. But do you understand that there is the potential for the court to rule that the only thing that will be given is your testimony; that...