State v. Marion

• Decision Date: 30 May 1978
• Citation: 175 Conn. 211,397 A.2d 533
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Robert P. MARION. STATE of Connecticut v. Michael P. TETREAULT. STATE of Connecticut v. Harry E. COMAN.

Page 533

397 A.2d 533

175 Conn. 211

STATE of Connecticut v. Robert P. MARION.

STATE of Connecticut v. Michael P. TETREAULT.

STATE of Connecticut v. Harry E. COMAN.

Supreme Court of Connecticut.

Argued Feb. 14, 1978.

Decided May 30, 1978.

James J. Murphy, Jr., Special Public Defender, for appellant in the first case (defendant Marion).

Vincent A. Laudone, Special Public Defender, with whom was Juri E. Taalman, Norwich, for appellant in the second case (defendant Tetreault).

Melvin Scott, Special Public Defender, with whom, on brief, was Robert E. Pritchard, Special Public Defender, for appellant in the third case (defendant Coman).

Robert E. Beach, Jr., Asst. State's Atty., with whom, on brief, was Harry S. Gaucher, Jr., State's Atty., for appellee (state).

Before COTTER, BOGDANSKI, SPEZIALE, HEALEY and PARSKEY, JJ.

COTTER, Justice.

After a joint trial to a jury, the defendants were convicted of six counts of breaking and entering in violation of § 53-74 of the General Statutes and one count of larceny in violation of § 53-63(a). They have appealed from the judgments, claiming, inter alia, that they were denied effective assistance of counsel as a result of their joint representation. ¹

The charges involved in the three cases arise from the theft of items from several trailers located at a construction site in Putnam. The state's witnesses testified that on the morning of February 2, 1971, it was discovered that the trailers had been broken into and that an adding machine, typewriter, calculator, copying machine, pump and torches were missing. Although the investigating police officer dusted the scene for fingerprints, none were found. They were no eyewitnesses to the crime, and no physical evidence was found at the scene which would serve to connect the defendants with the break-ins or the larceny. The defendants did not testify.

Crucial to the state's case, therefore, was the testimony of Charles Bates, tending to establish the defendants' involvement in the incident. Bates, a former employee at the Putnam construction site, testified to three incriminating conversations allegedly occurring shortly before and immediately after the time at which the thefts were estimated to have occurred. According to Bates, on February 1, 1971, he drove to the construction site in the company of Marion and Tetreault to pick up tax forms. While driving back to Marion's apartment, one of the two defendants allegedly asked Bates "if they had anything good in the trailers"; and he told them there was a copying machine, some adding machines and typewriters in at least one of the trailers. Later that same day, while all three defendants were present, one of them allegedly asked Bates if they could use his truck to pick up some "stuff" at the construction site. In relating the contents of those two conversations, Bates could not identify the speaker in either instance.

The third conversation to which he testified on direct examination involved an alleged confession to the crime purportedly made by Marion in the early morning of February 2, 1971. According to Bates, Marion explained that they had been to the home of Al Robidoux, a junk dealer, to "get rid of" some items taken from the construction site. Robidoux later testified for the defense that he had bought these items from someone identified only as "Jerry," and generally disassociated himself from the defendants.

It was during this testimony of Bates, the defendants now claim, that a conflict of interest arose and that error was committed in allowing one counsel to continue his representation of the three defendants. The transcript reveals that although the special public defender representing the defendants initially objected to Bates' testimony regarding the first conversation he had with Marion and Tetreault on the grounds that it was inadmissible hearsay, when the state's attorney claimed the question, defense counsel withdrew his objection. No further objections were made by the defendants' attorney throughout the remaining portions of Bates' testimony and, on cross-examination, no attempt was made by defense counsel to exonerate any defendant or to impute the incriminating statements to any specific defendant. At the close of the presentation of all the evidence, the defendants' counsel made no request to charge and no exceptions were taken to the charge as given by the court. ²

It is significant to note at this point that the defendants do not necessarily claim they were denied adequate assistance of counsel on the basis of their attorney's inadequate preparation or ineptitude exhibited by representation at trial which was not " 'within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.' Gentry v. Warden, . . . (167 Conn. 639, 646, 356 A.2d 902)." State v. Clark, 170 Conn. 273, 287, 365 A.2d 1167, 1173. Rather, they contend that the hearsay testimony of Bates placed defense counsel in an irreconcilable conflict, which virtually compelled him to allow such testimony into evidence without objection, since to do otherwise might result in implicating one client whom he represented to the detriment of the others.

Although the representation of codefendants simultaneously by one attorney "is not per se violative of constitutional guarantees of effective assistance of counsel"; Holloway v. Arkansas, 435 U.S. 475, 482, 98 S.Ct. 1173, 55 L.Ed.2d 426; Glasser v. United States, 315 U.S. 60, 77, 62 S.Ct. 457, 86 L.Ed. 680; United States v. Mandell, 525 F.2d 671, 677 (7th Cir.), cert. denied, 423 U.S. 1049, 96 S.Ct. 774, 46 L.Ed.2d 637; United States v. Jones, 436 F.2d 971 (6th Cir.); Baker v. Wainwright, 422 F.2d 145, 148 (5th Cir.), cert. denied, 399 U.S. 927, 90 S.Ct. 2243, 26 L.Ed.2d 794; Watkins v. Wilson, 408 F.2d 351, 352 (9th Cir.); Fryar v. United States, 404 F.2d 1071, 1073 (10th Cir.), cert. denied, 395 U.S. 964, 89 S.Ct. 2109, 23 L.Ed.2d 751; Palmer v. Adams, 162 Conn. 316, 328, 294 A.2d 297; State v. Costa, 155 Conn. 304, 308, 232 A.2d 913, cert. denied, 389 U.S. 1044, 88 S.Ct. 789, 19 L.Ed.2d 837; "the 'assistance of counsel' guaranteed by the Sixth Amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests." Glasser v. United States,supra, 315 U.S. 70, 62 S.Ct. 465. For joint representation to amount to a denial of a defendant's constitutional right to the effective assistance of counsel, however, he must present some factual basis establishing that a conflict of interest actually existed between himself and the other codefendants; see United States v. DeBerry, 487 F.2d 448, 452 (2d Cir.); Palmer v. Adams, supra, 162 Conn. 328-29, 294 A.2d 297; since a claim of conflict cannot be sustained when grounded upon nothing more than mere speculation and conjecture. United States v. Gallagher, 437 F.2d 1191, 1194 (7th Cir.); Palmer v. Adams, supra. ³

Prior to trial, the defendants' counsel advised the court that he had discussed the possibility of a conflict with the defendants and was aware of none at the time. ⁴ The court was not alerted to the inculpatory testimony of Bates relative to the oral extrajudicial statements allegedly made by one of the defendants, and no further factual inquiry was conducted. ⁵ Ordinarily, a court is obligated to take adequate steps to determine whether the risk of conflict is too remote to require separate counsel if counsel makes representations of a probable risk of a conflict of interests. Holloway v. Arkansas, supra, 435 U.S. 483, 98 S.Ct. 1173. Although the right to conflict-free representation may be waived; United States v. Villarreal, 554 F.2d 235, 236 (5th Cir.); State v. Reed, 174 Conn. 287, 293, 386 A. 243; we will indulge every reasonable presumption against waiver of fundamental constitutional rights. Craig v. United States, 217 F.2d 355, 359 (6th Cir.). Only when the record clearly discloses that a constitutional right was waived "intelligently, understandingly and in a competent manner" will a claim of waiver be sustained. State v. Beaulieu, 164 Conn. 620, 630, 325 A.2d 263; State v. Reed, supra. On the basis of the court's limited inquiry regarding the possibility of a conflict, we cannot conclude that the defendants waived their right to conflict-free representation. ⁶

" A conflict of interest is present whenever one defendant stands to gain significantly by counsel adducing probative evidence or advancing plausible arguments that are damaging to the cause of a codefendant whom counsel is also representing." Foxworth v. Wainwright, 516 F.2d 1072, 1076 (5th Cir.). In the present case, the strategy employed by defense counsel during the testimony of Bates "luminates the cross-purposes under which he was laboring." Glasser v. United States, 315 U.S. 60, 73, 62 S.Ct. 457, 466, 86 L.Ed. 680. Defense counsel failed to question Bates concerning the absence of Coman when the alleged conversations took place, even though a number of defense witnesses testified later in the trial relative to an alibi defense raised by Coman. ⁷ Nor was any attempt made by counsel to impute two of the incriminating statements to any particular defendant or request an instruction on this issue. ⁸ See United States v. DeYoung, 523 F.2d 807, 809-10 (3rd Cir.). Further, the conflict arising in the joint representation of the three defendants becomes evident upon a review of counsel's failure to challenge the out-of-court confession to the crime allegedly made by the defendant Marion on the basis of the principle enunciated in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. Bruton held that the confrontation clause of the sixth amendment, as applied to the states through the fourteenth amendment, is violated when a codefendant's out-of-court hearsay statement implicating a defendant is admitted into evidence and the defendant is either unavailable...