State v. Gordon
| Decision Date | 10 September 1985 |
| Docket Number | (12709),(11679) |
| Citation | 197 Conn. 413,504 A.2d 1020 |
| Court | Connecticut Supreme Court |
| Parties | STATE OF CONNECTICUT v. WILLIAM L. GORDON |
COPYRIGHT MATERIAL OMITTED
Suzanne Zitser and Jon C. Blue, assistant public defenders, with whom, on the brief, were Joette Katz and Eugene Riccio, public defenders, for the appellant (defendant).
Julia D. Dewey and Robert J. O'Brien, assistant state's attorneys, with whom, on the brief, were Arnold Markle, state's attorney, and Katherine Lambert, former deputy assistant state's attorney, for the appellee (state).
The defendant, William Leonard Gordon, was charged in a substitute information with first degree burglary; General Statutes § 53a-101 (a) (1); conspiracy to commit first degree burglary; General Statutes § 53a-48; first degree robbery; General Statutes § 53a-134 (a) (2); conspiracy to commit first degree robbery; General Statutes § 53a-48; first degree larceny; General Statutes § 53a-122 (a) (2); conspiracy to commit first degree larceny; General Statutes § 53a-48; second degree unlawful restraint; General Statutes § 53a-96 (a); and conspiracy to commit second degree unlawful restraint. General Statutes § 53a-48. He was convicted as charged by a jury, and was sentenced to a term of not less than eighteen nor more than forty years imprisonment. He appeals both from his conviction, and from the sentences imposed on the guilty verdicts, raising five claims of error. One claim involving the denial of a pretrial motion for a continuance was also pursued simultaneously with this appeal, through a petition for a writ of habeas corpus, which the habeas court denied prior to oral argument before this court. As a general rule, this court will not consider a claim which is the subject of a collateral proceeding from which an appeal to this court is available. We therefore decline to review this claim. The remaining four claims, all properly before us, question (1) whether the defendant's attorney-client privilege was violated, (1A) whether the trial court erred in denying defense counsel's motion for a continuance until a key trial witness had become available to testify, (2) whether the trial court's treatment of defense counsel denied the defendant a fair trial, and (3) whether the trial court erred in computing the defendant's total effective sentence. We find no error.
On February 18, 1980, two masked, armed men entered the West Haven home of Stanley and Harriet Sikorsky. The intruders bound and gagged Mrs. Sikorsky, who was alone in the house except for her three children, who were asleep, and tied her to a chair with a piece of twine. They then removed from the home jewelry valued at approximately $130,000, a fur coat, a camera, and $5000 cash. The West Haven police investigated the crime, but initially had no leads.
On March 22, 1980, the Milford police arrested Gary White for possession of a weapon in a motor vehicle. A search of White's car incident to his arrest revealed items the police believed to be the tools of crime, including a ski mask, a pair of pliers, and a ball of twine. The discovery of these items prompted the Milford police to contact the West Haven police, who then came to Milford to interview White concerning the Sikorsky robbery. During the course of the interview, White made inculpatory statements linking himself and the defendant to the crime. On the strength of these inculpatory statements, the police secured a warrant to search the defendant's home. During the execution of the warrant on March 26, 1980, the police seized several items, including a piece of twine, a police scanner, and a code book. The defendant, however, was not then arrested.
On May 2, 1980, the West Haven police arrested Robert Hundley in connection with the robbery. Hundley made several statements to the police implicating himself, White, and the defendant in the crime. On May 8, the police executed a warrant for the defendant's arrest.
Following his arrest, the defendant retained Attorney Robert Mirto to represent him in the preliminary proceedings. In August, 1980, the defendant hired Attorney Robert Casale, who then became sole defense counsel in the case. From the time of his arrest until his subsequent conviction, the defendant took an extremely active role in the preparation of his defense. His wife, Janet Gordon, also assisted in the planning of defense strategy.
The extent and timing of Janet Gordon's involvement with the defendant and his counsel are crucial and disputed issues in this case. The following facts appear clear from the record: From the time of the defendant's arrest in May, 1980, until January 5, 1982, when she entered a federal witness protection program, Janet Gordon consistently supported her husband throughout all pretrial proceedings and in the preparation of his defense. Outwardly, she was stalwart in maintaining her husband's innocence. She regularly accompanied the defendant on weekly, and often daily, visits to Casale's office, and was present during attorney-client discussions between the defendant and Casale. At home, she participated in three-way phone conversations with the defendant and Casale. More important, it appears that Janet Gordon was an active participant in the planning of defense strategy, including the decision of whether she or the defendant would take the stand, the discussion of which other witnesses might be helpful to the case and how these witnesses could be located, and the preparation of a list of alibi witnesses.
On November 30, 1981, a date crucial to the defendant's claims on appeal, Janet Gordon initiated a meeting with Detective James Harris of the West Haven police department at a restaurant in New Haven. At that meeting, she revealed to Harris that her husband had been involved in the Sikorsky robbery, and discussed with Harris the details of the crime. She claimed that the defendant had been threatening her, and that she was deeply afraid of him. Thereafter, Janet Gordon met on two more occasions with members of the police department and the state's attorney's office at the career criminal division in New Haven. At the first of these meetings, which occurred on December 3, 1981, she told the police the strategy the defendant had planned to use to discredit Gary White's statements, and that neither she nor the defendant nor their children would be taking the stand in the upcoming trial. She also expressed a desire to leave the defendant and she sought the state's aid in arranging her placement into a federal witness protection program. On December 14, 1981, the second meeting took place, during which federal marshals interviewed Janet Gordon in connection with her entrance into the witness protection program. It appears that she did not discuss the case with the police or the state's attorney at that time.
The state informed Janet Gordon, after its initial meeting with her on November 30, that she could not be placed immediately in a protection program and that she should return home and try to avoid any further involvement in the defendant's case. She was also told not to relate to the police or the state's attorney any information she had received concerning preparation of the defense. Janet Gordon did, however, continue to participate in meetings between the defendant and Casale after this time in order not to arouse suspicion that she had been in contact with the state.
On or about January 6, 1982, Janet Gordon and her three sons left their home and entered a witness protection program. The defendant and his counsel had no knowledge of Janet Gordon's involvement with the state prior to this time, and did not receive official notice of her decision to become a state's witness until March, 1982. On March 18, Casale, in anticipation of having to testify at a pretrial hearing involving Janet Gordon's conduct, withdrew as the defendant's counsel.
The defendant's trial was scheduled to begin on March 23. He appeared on that date without counsel and was given a one week continuance to find new counsel. On March 30, he again appeared without counsel, having had difficulty with the financial arrangements involved in retaining a private attorney. The court told the defendant to be back in court on April 13 with counsel and no excuses. The defendant appeared in court on April 13 having retained Attorney Charles Hanken to represent him. Hanken then requested a two to three week continuance, claiming he had not had sufficient time adequately to prepare for trial. The motion was denied, first by the court, Fishman, J., in pretrial proceedings, and again by the trial court, Hadden, J., just prior to the start of jury selection. It is unclear from the record precisely when Hanken began to work on the case.
Jury selection began on April 13, 1982. On April 19, the defendant filed a motion to dismiss the charges, based on what he claimed to be his wife's infiltration, as an informer for the state, into privileged communications between himself and his attorney. The trial court held an evidentiary hearing on the motion on April 22, and from April 27 through 29, during which Janet Gordon, Detective Harris, Attorneys Mirto and Casale, and State's Attorney Durham testified. The defendant attempted to show through these witnesses that Janet Gordon had become an agent of the state on November 30, 1981, that she thereafter had received information concerning defense strategy during privileged discussions between the defendant and his attorney, and that she had transmitted this information to the state. The trial court denied the motion, finding that Janet Gordon had voluntarily approached the state, that the state had specifically instructed her to avoid further contact with Casale, and that any information she passed on to the state she had received...
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