State v. Mebane, 13037

CourtSupreme Court of Connecticut
Citation529 A.2d 680,204 Conn. 585
Decision Date04 August 1987
Docket NumberNo. 13037,13037
Parties, 56 USLW 2130 STATE of Connecticut v. James R. MEBANE.

William R. Schipul, Asst. Public Defender, for appellant (defendant).

C. Robert Satti, Jr., Asst. State's Atty., with whom, on the brief, was Donald A. Browne, State's Atty., for appellee (state).

Before ARTHUR H. HEALEY, SHEA, CALLAHAN, F. HENNESSY and SPADA, JJ.

ARTHUR H. HEALEY, Associate Justice.

After a trial to the jury, the defendant, James Mebane, was found guilty of the crime of the sale of heroin in violation of General Statutes § 19-480(a). 1 The defendant then appealed his conviction to the Appellate Court. The Appellate Court affirmed the judgment of conviction. State v. Mebane, 8 Conn.App. 63, 511 A.2d 359 (1986). Thereafter, this court granted the defendant's petition for certification.

The question presented in the defendant's petition is as follows: "Did the Appellate Court err in failing to find reversible error in the trial court's granting of [the] state's motion to sequester the defendant from his attorney...." The defendant claims that the Appellate Court erred in two respects: (1) failing to find that the trial court's order mandated a per se reversal; and (2) holding that the state sustained its burden of showing that the trial court's error was harmless beyond a reasonable doubt. 2 We reverse the Appellate Court and remand to that court with direction.

The following background circumstances are not in dispute. After the state had rested its case-in-chief on September 5, 1984, the defendant took the stand to testify. On the first day of his testimony, during cross-examination by the state, the trial court stated that it was going to take a recess. At that time, the state asked the court for a sequestration order as to the defendant. 3 The state requested that the defendant "not talk to his counsel since [the state was] in the middle of cross-examination." Although defense counsel "strongly" objected, the court granted the state's request. Defense counsel took an exception to the ruling.

After a recess of approximately twenty-one minutes, the court reconvened and the state resumed its cross-examination of the defendant. After the defendant had been questioned, without any further recess, on redirect, recross, additional redirect and recross, the court adjourned for the day. The next morning, the defendant was recalled and testified on additional redirect, recross and then additional redirect and recross. 4

The defendant argues that the trial court's sequestration order violated his rights under the United States constitution and the Connecticut constitution which guarantee him a fair trial, due process and the effective assistance of counsel. U.S. Const., amends. VI, XIV; Conn. Const., art. I, § 8; State v. Mebane, supra, at 65, 511 A.2d 359. 5 The defendant maintains that a sequestration order such as that given in this case, no matter for how short a time, mandates reversal per se. He argues that the harmless error rule is not applicable in this context because the United States Supreme Court has recognized that "there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error," citing Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705, reh. denied, 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967). Alternatively, he attacks the Appellate Court's application of the harmless error doctrine. The defendant argues that if the harmless error doctrine is applicable, the Appellate Court erred in concluding that the state had sustained its burden of proving that the trial court's error was harmless beyond a reasonable doubt.

The state, on the other hand, argues that the Appellate Court did not err in rejecting a rule of per se reversal. It asserts that the right to effective assistance of counsel is not one of the constitutional protections the denial of which requires automatic reversal. Even conceding that the trial court's ruling was error, as the state did before both this court and the Appellate Court, it nevertheless maintains that the Appellate Court correctly applied harmless error analysis in concluding that the state had proven the error harmless beyond a reasonable doubt. State v. Mebane, supra, 8 Conn.App. at 65, 70, 511 A.2d 359. We disagree and reverse the judgment of the Appellate Court.

"The Sixth Amendment provides that an accused shall enjoy the right 'to have the Assistance of Counsel for his defense.' This right, fundamental to our system of justice, 6 is meant to assure fairness in the adversary criminal process. Gideon v. Wainwright, 372 U.S. 335, 344 [83 S.Ct. 792, 796-97, 9 L.Ed.2d 799] (1963); Glasser v. United States, 315 U.S. 60, 69-70, 75-76 [62 S.Ct. 457, 86 L.Ed. 680] (1942); Johnson v. Zerbst, 304 U.S. 458, 462-63 [58 S.Ct. 1019, 1022, 82 L.Ed. 1461] (1938)." (Emphasis added.) United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 667, 66 L.Ed.2d 564, reh. denied, 450 U.S. 960, 101 S.Ct. 1420, 67 L.Ed.2d 385 (1981). The United States Supreme Court "[has] ... been responsive to proved claims that governmental conduct has rendered counsel's assistance to the defendant ineffective. Moore v. Illinois, 434 U.S. 220 [98 S.Ct. 458, 54 L.Ed.2d 424] (1977); Geders v. United States, 425 U.S. 80 [96 S.Ct. 1330, 47 L.Ed.2d 592] (1976); Herring v. New York, 422 U.S. 853 [95 S.Ct. 2550, 45 L.Ed.2d 593] (1975); Gilbert v. California, 388 U.S. 263 [87 S.Ct. 1951, 18 L.Ed.2d 1178] (1967); United States v. Wade, 388 U.S. 218 [87 S.Ct. 1926, 18 L.Ed.2d 1149] (1967); Massiah v. United States, 377 U.S. 201 [84 S.Ct. 1199, 12 L.Ed.2d 246] (1964)." United States v. Morrison, supra; see Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984).

There is no question that the trial court's order entered on the state's motion was erroneous and that this error was of constitutional magnitude. The issue, therefore, is whether a per se reversal of the defendant's conviction is required or whether the harmless error analysis is to be applied.

In pressing their claims, both parties, as did the Appellate Court, place great emphasis on Geders v. United States, supra. In Geders, the United States Supreme Court held that a trial court order preventing Geders, a defendant in a federal prosecution, from consulting with his counsel " 'about anything' " during a seventeen hour overnight recess between his direct and cross-examination "impinged" upon his right to the assistance of counsel guaranteed by the sixth amendment. Id., 425 U.S. at 91, 96 S.Ct. at 1337. While acknowledging the broad powers of a trial judge over the control and shaping of the trial, Geders held that that power did not include the authority to prohibit consultation between a criminal defendant and his attorney for so long a period of time. The per se holding in Geders was reached without requiring the defendant to make any preliminary showing of prejudice. The Geders court, however, expressly limited its holding, stating: " United States v. Leighton, 386 F.2d 822 ( [2d Cir.] 1967), on which the Court of Appeals relied, involved an embargo order preventing a defendant from consulting his attorney during a brief routine recess during the trial day, a matter we emphasize is not before us in this case." Id., at 89 n. 2, 96 S.Ct. at 1336 n. 2. Accordingly, the United States Supreme Court did not decide the question of whether a court order denying the right of consultation between a criminal defendant and his attorney "during a brief routine recess" constitutes a violation of the defendant's sixth amendment rights. 7

Although, as the court suggested in Geders, some courts had already spoken to the question the Geders court left open; see, e.g., United States v. Leighton, supra; it was not long after the Geders decision that courts were then called upon to decide that open question. The federal circuit courts that have addressed the issue have reached differing results. In Crutchfield v. Wainwright, 803 F.2d 1103, 1109 (11th Cir.1986) (Crutchfield II ), reh. denied, 810 F.2d 208 (1987), the court summarized the different holdings stating: "The majority of the circuits that have announced rules for reviewing denial of assistance of counsel claims favor the per se rule. United States v. Allen, 542 F.2d 630 (4th Cir.1976), cert. denied, 430 U.S. 908, 97 S.Ct. 1179, 51 L.Ed.2d 584 (1977) (per se rule applied prospectively); United States v. Bryant, 545 F.2d 1035 (6th Cir.1976) (in absence of extraordinary circumstances, it is abuse of discretion and violation of right of defendant to assistance of counsel for a trial court to direct that defendant have no communication with his counsel during criminal trial over a noon recess). Only one circuit applies a harmless error analysis to a prohibition of consultation during trial between a criminal defendant and his counsel. United States v. DiLapi, 651 F.2d 140 (2d Cir.1981), cert. denied, 455 U.S. 938, 102 S.Ct. 1427, 71 L.Ed.2d 648 (1982). The Third and Fourth Circuits hold that no deprivation occurs in the absence of an objection. See Bailey v. Redman, 657 F.2d 21 (3d Cir.1981), [cert. denied, 454 U.S. 1153, 102 S.Ct. 1024, 71 L.Ed.2d 310, reh. denied, 455 U.S. 995, 102 S.Ct. 1624, 71 L.Ed.2d 857 (1982),] and Stubbs v. Bordenkircher, 689 F.2d 1205 (4th Cir.1982), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983)." Allen involved a routine recess. Bryant concerned a blanket restriction during the luncheon recess. DiLapi was a five minute recess and said that a showing of specific prejudice was necessary. In Bailey, the Third Circuit determined that the deprivation of assistance of counsel did not take place because the defendant did not object to the restriction on communication imposed by ...

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