State v. Henton

• Decision Date: 29 September 1998
• Docket Number: (AC 17824)
• Citation: 720 A.2d 517,50 Conn. App. 521
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. KENNETH HENTON

50 Conn. App. 521

720 A.2d 517

STATE OF CONNECTICUT v.KENNETH HENTON

(AC 17824)

Appellate Court of Connecticut.

Argued June 9, 1998.

Officially released September 29, 1998.

Schaller, Sullivan and Daly, Js.Lawrence S. Dressler, special public defender, for the appellant(defendant).

Richard F. Jacobson, supervisory assistant state's attorney, with whom, on the brief, was Gerard Eisenman, assistant state's attorney, for the appellee(state).

Opinion

SULLIVAN, J.

The defendant appeals from the judgment of conviction, rendered after a trial to the court, of robbery in the first degree in violation of General Statutes § 53a-134, the commission of a class A, B or C felony with a firearm in violation of General Statutes § 53-202k and being a persistent dangerous felony offender in violation of General Statutes § 53a-40.The defendant claims that the trial court improperly (1) denied his motion for a new trial,¹(2) found that he made a voluntary, knowing and intelligent waiver of his right to a jury trial, (3) found that the evidence was sufficient to convict him of being a persistent dangerous felony offender, (4) admitted the pretrial identification of the defendant, (5) failed to refer the case to a three judge panel pursuant to General Statutes § 54-82 (b),²(6) violated the defendant's constitutional right against double jeopardy by convicting him of both robbery in the first degree and the commission of a class A, B or C felony with a firearm and (7) found that the evidence was sufficient to convict the defendant of robbery in the first degree.We reverse the judgment in part and remand the case with direction to vacate the defendant's conviction under § 53-202k.

The following facts are relevant to the resolution of this appeal.At about 9 p.m. on August 27, 1995, Victoria Hudson went to meet friends in a bar in Bridgeport.When she did not find her friends there, she left.Outside of the bar, Hudson was approached by a man she recognized from high school eighteen years earlier, whose name she could not remember.The man, later identified as the defendant, asked Hudson for a ride to the east side of Bridgeport.Hudson agreed to give him a ride and drove him to the Pembroke Street exit on Interstate 95.The defendant then asked her to turn onto a deadend street, but Hudson became suspicious and pulled over on Pembroke Street.The defendant brandished a gun and threatened to shoot her in the head if she did not give him all of her money.Hudson handed him all of the money in her pocket, approximately forty to fifty dollars, at which point the defendant left the car and Hudson drove to her sister's house.The following morning, Hudson called the police from work to report the incident.She went to the Bridgeport police department the next day and looked at photographs of suspects fitting the defendant's description, but was not able to identify her assailant at that time.A few days later, while she was describing the incident to her friends, they suggested the defendant as a possible suspect.She provided the defendant's name to the police department and was called back to the station shortly thereafter to look at an array of six black and white photographs.Detective Robert Sapiro testified that Hudson pointed out the defendant's photograph in the array, but was not absolutely certain it was of the defendant because the photographs were old.On December 18, 1995, however, Hudson looked at another array of six recent color photographs and immediately identified the defendant as the man who had robbed her.

After waiving his right to a jury trial, the defendant was tried by the trial court and convicted of robbery in the first degree, the commission of a class A, B or C felony with a firearm and being a persistent dangerous felony offender.The defendant filed a motion for a new trial, claiming that a conflict existed between him and his defense counsel.The court denied the defendant's motion and sentenced him to fifteen years as a persistent dangerous felony offender and fifteen years on the robbery in the first degree count to be served concurrently.³In addition, the defendant was sentenced to five years for the firearm count, to be served consecutively, for a total of twenty years.This appeal followed.

I

The defendant's first claim is that his sixth amendment right to effective assistance of counsel was violated by the trial court's denial of his motion for a new trial, which alleged a conflict of interest between the defendant and his counsel.The defendant did not properly preserve this claim at trial and now seeks review of it under State v. Golding,213 Conn. 233, 239-40, 567 A.2d 823(1989).

In Golding, our Supreme Court held that "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt."Id."`The first two questions relate to whether a defendant's claim is reviewable, and the last two relate to the substance of the actual review.'State v. Newton,8 Conn. App. 528, 531, 513 A.2d 1261(1986)."State v. Shinn,47 Conn. App. 401, 409, 704 A.2d 816(1997), cert. denied, 244 Conn. 913, 914, 713 A.2d 832, 833(1998).Since the record is adequate for review and the defendant has alleged a claim of constitutional magnitude, we will review it on appeal."Our state and federal constitutions guarantee a criminal defendant the right to assistance of counsel.U.S. Const., amend. VI;Conn. Const., art. I, § 8. As an adjunct to this right, a criminal defendant is entitled to be represented by an attorney free from conflicts of interest."(Internal quotation marks omitted.)State v. Webb,238 Conn. 389, 417, 680 A.2d 147(1996)."This right requires that the assistance of counsel be `untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests.'"State v. Martin,201 Conn. 74, 78, 513 A.2d 116(1986), quotingGlasser v. United States,315 U.S. 60, 70, 62 S. Ct. 457, 86 L. Ed. 680(1942).

As our case law demonstrates, "the right to conflictfree representation typically is implicated in cases involving representation of criminal codefendants by a single attorney."State v. Williams,203 Conn. 159, 167, 523 A.2d 1284(1987).It has also been implicated, however, in cases where an attorney's ability to represent his client effectively is impaired because the client's interests conflict with the interests of an attorney's other clients or third parties.See, e.g., Wood v. Georgia,450 U.S. 261, 267, 101 S. Ct. 1097, 67 L. Ed. 2d 220(1981)(potential conflict between defendants' interest and interest of their employer who paid for trial counsel);United States v. Winkle,722 F.2d 605, 610(10th Cir.1983)(potential conflict because defendant's attorney previously represented government's key witness);Ross v. Heyne,638 F.2d 979, 984-85(7th Cir.1980)(conflict because one attorney represented defendant while his law partner represented codefendants who testified for prosecution);Matter of Darr,143 Cal. App. 3d 500, 510, 191 Cal. Rptr. 882(1983)(conflict due to defense counsel's concurrent representation of defendant and key prosecution witness);State v. Gonsalves,476 A.2d 108, 110(R.I.1984)(conflict because defense counsel previously represented individual who actually committed crime for which defendant being tried).Thus, "[i]t is not representation of more than one client which deprives a defendant of his constitutional right to effective assistance of counsel, it is representation of clients with adverse interests."(Emphasis added; internal quotation marks omitted.)State v. Martin,supra, 201 Conn. 81.

In the present case, the defendant claims that a conflict of interest arose because he and his defense counsel disagreed over whether the defendant should waive his right to a jury trial.The defendant does not assert, however, that his counsel's advice to elect a jury trial was for the benefit of another.SeeBlakeney v. Commissioner of Correction,47 Conn. App. 568, 584-85, 706 A.2d 989, cert. denied, 244 Conn. 913, 713 A.2d 830(1998).Nor does the defendant claim that his counsel was unable to represent him effectively because the defendant's interests conflicted with the interests of his counsel's other clients or third parties.SeeState v. Martin,supra, 201 Conn. 80-81.We conclude that what the defendant referred to as a "conflict of interest" between him and his trial counsel was, instead, merely a disagreement because it did not arise out of counsel's representation of clients with adverse interests.Seeid., 81.The trial court's denial of the defendant's motion for a new trial, therefore, was not in violation of his sixth amendment right to effective assistance of counsel.

II

The defendant next claims that the trial court improperly found that he made an effective waiver of his right to a jury trial.The defendant concedes that this claim was not raised at trial and, thus, was not properly preserved.He now seeks review of it under the standards of State v. Golding,supra, 213 Conn. 239-40.We will review the defendant's claim, as the record is adequate for review and the alleged violation is of constitutional magnitude because it involves his constitutional right to a jury trial.U.S. Const., art. III, § 2.We conclude, however, that the defendant has failed to show that the alleged violation clearly exists and clearly deprived him of a fair trial.

"The right to a jury trial in a criminal case is among those...