State v. Jennings, s. 14049

Citation216 Conn. 647,583 A.2d 915
Decision Date11 December 1990
Docket NumberNos. 14049,14050,s. 14049
CourtSupreme Court of Connecticut
PartiesSTATE of Connecticut v. Gerald JENNINGS.

A. Paul Spinella, Bloomfield, with whom was Susan V. Tirrel, Certified Legal Intern, for appellant in both cases (defendant).

Mitchell S. Brody, Asst. State's Atty., with whom, on the brief, was Michael Dearington, State's Atty., for appellee in both cases (state).

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

HULL, Associate Justice.

The defendant, Gerald Jennings, was charged by substitute information with assault in the first degree in violation of General Statutes § 53a-59(a)(1) 1 and kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A) 2 as a result of an incident that occurred on June 6, 1987. In another case, the defendant was charged by substitute information with criminal attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 3 and 53a-59(a)(1) and criminal trespass in the first degree in violation of General Statutes § 53a-107(a)(1) 4 as a result of incidents that occurred on February 19 and 27, 1987. The two informations were joined for trial pursuant to General Statutes § 54-57 and Practice Book § 829. 5 Following a jury trial, the defendant was found guilty, in the first case, of the lesser included offenses of assault in the second degree and kidnapping in the second degree. In the second case, he was found guilty as charged. The trial court thereupon sentenced the defendant to two concurrent five year terms of imprisonment in the first case and, in the second case, to concurrent terms of imprisonment of twelve years, execution suspended after seven years with five years probation and one year probation respectively, to run consecutively with the sentence imposed in the first case. The defendant appealed the judgments to the Appellate Court. We subsequently transferred the appeals to this court pursuant to Practice Book § 4023.

On appeal the defendant claims that the trial court violated his constitutional rights when it: (1) denied the defendant's motion to permit the withdrawal of appointed defense counsel; (2) granted the state's motion to join the two informations for trial; (3) denied the defendant's request to instruct the jury that it must be unanimous in its verdict as to factual theory; and (4) denied the jury's request for a written copy of portions of the jury instructions. We conclude that the defendant's constitutional rights were not violated. Accordingly, we affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On February 19, 1987, Patricia Hoskie, the victim, a former girlfriend of the defendant, was approached by the defendant while walking with her niece, Ruth Hoskie, to a bus stop in New Haven. The defendant asked to speak with the victim, but she refused. In response, the defendant revealed a knife under his coat. Shortly thereafter, the defendant, the victim and Ruth boarded a bus. The three got off the bus in Westville and started walking to her home. The victim continued to refuse the defendant's repeated requests to speak with her. Upon arriving at her home, Ruth informed the defendant that he could not come inside. When he asked to use the telephone, however, Ruth's boyfriend, Yule Watley, permitted the defendant to enter for that purpose. The defendant proceeded to use the telephone, but he suddenly dropped the receiver, drew a knife and cut the victim's finger. Watley grasped the defendant but he broke free and cut the victim's upper arm. Watley intervened again, and this time he was able to gain possession of the knife. Watley threw the defendant out of the house.

The defendant and the victim briefly resumed their former relationship. Subsequently, though, while the victim was staying in the hospital for unrelated kidney treatment, she requested that the defendant be prohibited from visiting her. Hospital security informed the defendant of the victim's request, but on February 27, 1987, he attempted to visit her. Hospital security notified the police.

The relationship between the victim and the defendant resumed once again for a short period. On June 6, 1987, the victim went to Atlantic City, New Jersey, with her sister, Frances Johnson, and her friend, Alice Walker. Upon their return that same evening, a bus let the three women off in a parking lot behind the Elk's club in New Haven where Johnson's car was parked. As they walked toward the car, the defendant approached the victim and asked to speak with her. She agreed and the two spoke briefly. Thereafter, as Johnson walked with the victim to the car, the defendant followed. When they reached the car, Johnson pushed the victim inside it and started to close the door, but the defendant pulled it open and fell upon the victim. The defendant cut the victim's neck with a box cutter, pulled her out of the car, punched and kicked her and threw her about the parking lot. The victim resisted the defendant and he cut her again, this time on the shoulder. Johnson and Walker tried to intervene, but the defendant threatened to shoot them with a shiny object that he displayed. The defendant took the victim from the parking lot to an empty apartment nearby. When a police officer walked by the apartment, the defendant instructed the victim to refrain from speaking. Some time later, the defendant told the victim that she could leave, which she did.

I

The defendant's first claim is that the trial court's denial of his motion to permit withdrawal of defense counsel on grounds of a conflict of interest deprived him of his rights to the effective assistance of counsel, due process of law and a fair trial guaranteed by the sixth, fifth and fourteenth 6 amendments to the United States constitution and article first, § 8, of the Connecticut constitution. 7 We do not agree.

On October 28, 1987, prior to the commencement of trial, the defendant moved for the appointment of a special public defender to replace defense counsel, a public defender previously appointed for him, or in the alternative, for a continuance in order to obtain a private attorney. Defense counsel argued that since another public defender in her office had represented the victim in a prior unrelated case, she owed the victim a duty of confidentiality that placed her in a position of conflict, making it inappropriate for her to represent the defendant. The trial court, Hadden, J., concluded that insufficient facts had been presented to warrant a finding that a conflict of interest existed and denied the motion.

On November 2, 1987, the defendant renewed his motion to permit the withdrawal of defense counsel. Defense counsel stated that the public defender's office had previously represented both the victim and a state's witness, Yule Watley, on charges about which the public defender's office files might contain information relevant to their credibility. The court abstained from ruling on the motion pending an inquiry by the state to determine whether the witnesses were willing to waive their rights to confidentiality. Defense counsel argued that a waiver must also be obtained from the defendant under the circumstances. The trial court rejected this claim, stating that a waiver by the defendant would only be required if the representation of the defendant was simultaneous to the representation of the witnesses, which was not the case. Further, the trial court noted that waiver by the witnesses of their rights to confidentiality would actually put the defendant in a more advantageous position than if defense counsel did not represent him because counsel would have access to information regarding two state's witnesses that another attorney would not have.

On November 3, 1987, the state informed the court that the two witnesses were willing to waive any rights they had concerning confidentiality with respect to their earlier representation by the public defender's office. Defense counsel claimed that she should still be permitted to withdraw because the defendant was unwilling to execute a waiver and would be prejudiced by defense counsel's inability to be a zealous advocate on his behalf due to her divided loyalty. The trial court denied the motion to withdraw and expressed doubt as to any potential for conflict since the witnesses were former clients and were willing to waive their rights to confidentiality. Further, the trial court reiterated its belief that the defendant would be at an advantage in that the witnesses' waivers would afford the defendant access to information regarding the witnesses that he would not have otherwise.

The trial court granted the defendant's request for a continuance so that defense counsel could examine the public defender's files concerning the witnesses. Subsequently, both witnesses waived any rights of confidentiality arising out of their prior representation by the public defender's office. Shortly thereafter, defense counsel informed the court that she had been unable to obtain the pertinent files during the continuance. The trial court consequently agreed to allow the defendant to recall the witnesses if future examination of the files revealed evidence relevant to cross-examination.

"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. Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220 (1981); Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 464-65, 86 L.Ed. 680 (1942); State v. Martin, 201 Conn. 74, 78, 513 A.2d 116 (1986); Festo v. Luckart, 191 Conn. 622, 626-27, 469 A.2d 1181 (1983)." State v. Williams, 203 Conn. 159, 166-67, 523 A.2d 1284 (1987). "The ...

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