State v. Davis

• Decision Date: 11 March 1986
• Citation: 199 Conn. 88,506 A.2d 86
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Michael DAVIS. STATE of Connecticut v. Sherman ADAMS.

Page 86

506 A.2d 86

199 Conn. 88

STATE of Connecticut v. Michael DAVIS.

STATE of Connecticut v. Sherman ADAMS.

Supreme Court of Connecticut.

Argued Dec. 6, 1985.

Decided March 11, 1986.

Jon C. Blue, Asst. Public Defender, with whom, on the brief, was Joette Katz, Public Defender, for appellant (defendant in the first case).

Sue L. Wise, Sp. Public Defender, for appellant (defendant in the second case).

Frank S. Maco, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Frederick W. Fawcett, Asst. State's Atty., for appellee (state).

Before HEALEY, SHEA, DANNEHY, SANTANIELLO and CORRIGAN, JJ.

ARTHUR H. HEALEY, Associate Justice.

The defendants, Michael Davis and Sherman Adams, were each found guilty, after a joint trial ¹ to a jury, of the crimes of burglary in the second degree, in violation of General Statutes § 53a-102(a), and larceny in the third degree, in violation of General Statutes (Rev. to 1981) § 53a-124(a)(1). These appeals followed. ²

Both appeals arise out of a burglary and larceny in an apartment building in Stratford on December 17, 1981, during which both defendants were apprehended at the scene by Stratford police officers who were dispatched to the building between 8 and 8:30 p.m. on a "peeping Tom" call. The state adduced evidence that when the officers arrived, they observed two sets of footprints in the snow leading from the parking lot to an apartment window in the back of the building on the ground floor. They also observed the intermittent use of a flashlight and heard voices inside the darkened apartment. While one officer remained at the open window, a second officer entered the building into a common corridor and observed the defendant Davis come out of the apartment involved. He was carrying a white pillowcase which was found to contain personal property of the tenant of that apartment who was away on vacation in Colorado. As the defendant Adams jumped from the window of the burglarized apartment, he was apprehended by the officer who had remained at that location.

After the state rested its case, the following colloquy which generated these appeals took place: "The Court: Are you ready to proceed, gentlemen?

"Mr. Bleiman: Yes, Your Honor. If we may, before the jury comes in, I'd like to make a statement for the record. My client, Michael Davis, has asked me to call one witness, who in my judgment, I do not think it would be wise to call, and under those circumstances, I have declined to follow Mr. Davis' instructions, in that regard. I'd like the court to be aware of that and I'm stating that now to protect any rights that any parties, between my client and myself, might have with respect to this. And I'd ask the court to give Mr. Davis the opportunity to make a statement in this regard if he sees fit.

"The Court: Well, I have to assume that the decision not to call this particular witness is a tactical decision that experienced trial counsel has made. He's the one who's lived with the case. He's been in attendance throughout and I respect his judgment. I have no basis or reason to make an independent judgment.

"Mr. Bleiman: Yes, Your Honor. Thank you.

"The Court: All right.

"Mr. Schipul: Your Honor, just for the record, my client has also requested a witness be called who in my judgment need not be called. Should not be called for purposes of this trial.

"The Court: I would simply reiterate my earlier comment with respect to tactical judgment made on the part of trial counsel. Are we ready to proceed, gentlemen?"

The defendant Adams did not testify but offered evidence through a witness, Almad Sanders, that he and Sanders had been drinking from about 7 p.m. at Sanders' home and that the two parted company after 8 p.m. Sanders testified that Adams was depressed and very intoxicated. The defendant Davis took the stand as the only witness in his behalf. He maintained that on the night in question he and a friend named Ricky were drinking beer, smoking marihuana and talking about women. As a result of their conversation, he said that they went to the apartment building where the break occurred to see a woman Ricky knew. The latter pushed a house button for an apartment and was buzzed in. Davis, acting, he said, on Ricky's instructions, went to a second floor apartment while Ricky went back to his car. Davis maintained that he told a woman who answered that he had been sent up by Ricky who wanted to know if he could come up and visit. As a result of her answer, Davis returned to the first floor lobby expecting to find Ricky, who was not there and whose car was gone. He waited in the lobby for about five to ten minutes and panicked and ran when he saw one of the officers, who had been dispatched there, approaching with his gun drawn. He was apprehended and a later search of him at the scene disclosed a flashlight and a screwdriver on his person.

Both defendants have framed the issue on these appeals as follows: "In a criminal case in which counsel had been appointed to represent the defendant, did the refusal of counsel to call a witness that his client had instructed him to call and the court's explicit approval of that refusal, where there was no allegation that the requested testimony would be either perjurious or irrelevant, violate the rights of the defendant to be heard and to have compulsory process to obtain witnesses in his behalf guaranteed by Conn. Const. art. I, Sec. 8?"

Article first, § 8, of the Connecticut constitution provides in relevant part: "In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel ... [and] to have compulsory process to obtain witnesses in his behalf...."

Both defendants make identical claims. ³ They claim that the Connecticut constitution grants "a right to be heard" directly to the defendant and that the dispositive issue is not whether the decision of the trial court and their counsel deprived them of the effective assistance of counsel but whether those decisions denied each his "right to be heard by himself." They maintain that this decision was one ultimately for the defendant to make because "the Connecticut constitution clearly allocates [it] to the accused." Each defendant argues that the trial court "explicitly acquiesced" in counsels' decisions, characterizing them as "tactical," and did not give either of them "a requested opportunity to make a statement for the record." Contending that the question is not one of the dignity or authority of counsel but, rather, is one of the ultimate allocation of constitutional power, they claim that the independent right of a defendant under article first, § 8, "to be heard by himself" encompasses "the right to call witnesses on one's behalf." A defendant has this right, they maintain, "by himself" as well as "by counsel." They assert that if the exercise of this right is solely within the discretion of counsel, then we would be obligated to hold the language "by himself" to be mere surplusage. They further argue that this right does not rest on policy nor does it intrude on courtroom decorum. Moreover, they say that it does not rest on terminology alone, but also draws support from the historical context in which the Connecticut constitution of 1818 was adopted. This, they suggest, serves to reinforce their claim that the organic language of our constitution requires that we declare that a criminal defendant has the ultimate decision-making right under article first, § 8. We must reject the defendants' claims.

In arguing that this decision-making right ultimately rests in defendants alone, they also claim that to deny them that right also denies them their right to compulsory process as articulated in article first, § 8, because that right is given to "the accused." In making this claim, the defendants recognize that the Supreme Court of the United States has said that an accused who claims a violation of his constitutional right to compulsory process "must at least make some plausible showing of how [the] testimony would have been both material and favorable to his defense." United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982). Each defendant argues that he was precluded by the trial court from making such a showing. The defendant Adams argues that although Davis' attorney asked the trial court to "give Mr. Davis the opportunity to make a statement in this regard if he sees fit," the trial court ignored his request saying that it would defer to counsel's "tactical decision" rather than "make an independent judgment." The defendant Adams argues that while his counsel joined in that request, he did not make any offer of proof in light of the trial court's position.

On the other hand, the state counters that article first, § 8, of the Connecticut constitution does not guarantee a criminal defendant, represented by counsel, the right to make the ultimate decision as to what witnesses shall be called during the trial, but rather maintains that that decision is a tactical one for counsel. Arguing that the defendants' claims here have no historical support, the state contends that the claimed right simply cannot be equated with certain other rights, the exercise or nonexercise of which clearly belongs to a criminal defendant alone. Here the state refers to such rights as the decision to be tried by a court or a jury, to plead guilty or to take the witness stand, and to testify in one's own behalf. Because the decision is a tactical or strategic one, the state suggests that a claim that a defendant's counsel refused to call witnesses he requested is essentially a claim going to the competency of counsel which is better resolved in another proceeding.

At the outset, we note that the defendants have not asserted that the right of an accused to make the ultimate decision in the calling of a witness is a federal constitutional right. They do not point to,...