State v. Reed

• Decision Date: 28 February 1978
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. John REED.

Page 243

386 A.2d 243

174 Conn. 287

STATE of Connecticut v. John REED.

Supreme Court of Connecticut.

Argued Oct. 13, 1977.

Decided Feb. 28, 1978.

Victor P. Fasano, Special Public Defender, for appellant (defendant).

William F. Gallagher, Special Asst. State's Atty., with whom, on brief, were Arnold Markle, State's Atty. and Richard P. Sperandeo, Chief Asst. State's Atty., for appellee (state).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and SPEZIALE, JJ.

LOISELLE, Associate Justice.

The defendant was indicted in 1969 by a grand jury charging him with first degree murder in violation of General Statutes § 53-9. ¹ He was found guilty of second degree murder after a trial by jury. From the judgment rendered he has appealed to this court.

From the evidence presented, the jury could have found the following facts. On December 23, 1968, Richard Biondi called Thomas Viola threatening to kill him, the defendant, and others before the end of the year. That evening Viola met the defendant and told him of the threat he had received. The defendant stated that it was about time they retaliated before one of them got killed. They both went to Viola's home where they picked up an AR-15 automatic rifle and a nine-millimeter pistol. They next went to the home of Ralph Maselli, inviting him to go along with them, but Maselli refused. The defendant and Viola went to the defendant's home where they called Biondi's apartment. When it was determined that the line was busy, the defendant said, "It's a gift, let's go." They then went to the home of Arthur Murgo, where they told him about the threat and discussed the possibility of killing Biondi. Murgo instructed the defendant in the pronunciation of the secret password used by Biondi and his associates. The defendant and Biondi left Murgo's home and drove to Fort Hale Park where they tested the machine gun and then drove to Biondi's apartment.

The defendant, armed with the machine gun, and Viola, armed with the pistol, went to Biondi's apartment, knocked on the door, and gave the secret password. When Biondi opened the door, the defendant sprayed Biondi with a burst of machine gun fire. Biondi had three massive wounds, any one of which could have caused his instantaneous death.

The defendant and Viola left Biondi's apartment and went to the defendant's apartment where the defendant called Maselli to tell him he had "hit pay dirt." They thereafter went to Maselli's home and gave him the two weapons, the defendant again telling Maselli that he had killed Biondi. Later Maselli hid the guns in the woods. The next morning Murgo picked up Maselli and drove to the woods where the guns were hidden. Maselli emptied the machine gun by firing it. They got back into the car, disassembled the machine gun into two parts and threw each part into different bodies of water. Murgo took the pistol with him. A few days later the defendant described to Maselli how he got Biondi to open the door and how he shot Biondi.

Further facts that the jury could have found are stated with the discussion of the various errors claimed by the defendant. They are grouped as follows: (1) the attack on the jurisdiction of the court; (2) the petition pro hac vice of Attorney James J. Hogan; (3) rulings by the trial court; and (4) the charge to the jury.

I

Prior to trial, the defendant claimed that the court was without jurisdiction over the defendant. The facts, found by the court and stipulated to by the parties, indicate that the defendant had been indicted by a grand jury on this charge in 1969. Subsequently, the state surrendered the defendant to the United States government to answer to federal charges of armed robbery. At the time the defendant filed his plea, he had been convicted of the federal charge and an appeal from that conviction was pending. The defendant contends that since the federal case had not yet concluded, he was still within federal court jurisdiction and could not be tried on state charges.

While it is true that, pursuant to the supremacy clause of the United States constitution, the federal government is under no obligation to surrender a person within its exclusive jurisdiction upon the demand of a state, the United States may waive its immunity and consent to have prisoners in its custody turned over to the state. Ponzi v. Fessenden, 258 U.S. 254, 260, 42 S.Ct. 309, 66 L.Ed. 607; Tarble's Case, 80 U.S. (13 Wall.) 397, 20 L.Ed. 597; Ableman v. Booth, 62 U.S. (21 How.) 506, 16 L.Ed. 169; Thomas v. Levi, 422 F.Supp. 1027 (E.D.Pa.). As the United States Supreme Court enunciated in Ponzi v. Fessenden, supra, 258 U.S. 260, 42 S.Ct. 310, "(The defendant) may not complain if one sovereignty waives its strict right to exclusive custody of him for vindication of its laws in order that the other may also subject him to conviction of crime against it. . . . Such a waiver is a matter that addresses itself solely to the discretion of the sovereignty making it and of its representatives with power to grant it." See also annots., 22 A.L.R. 886, 62 A.L.R. 279; 21 Am.Jur.2d, Criminal Law, § 382; 1 Wharton, Criminal Procedure (12th Ed.) § 16. ² The Superior Court had proper jurisdiction over the defendant for the purposes of this trial.

II

Prior to trial, local counsel petitioned for permission to have James J. Hogan, a member of the Florida bar and of various federal bars, appear pro hac vice for the defendant in this trial. The state conceded that Hogan was a qualified attorney who had previously represented the defendant in another criminal case and who had been instrumental in the defendant's surrender to the state court. The petition was denied, but Hogan was granted permission to sit at the counsel table in order that local counsel and the defendant might consult with him. Subsequently, a motion by the state to open the hearing on the petition was granted. The state revealed to the court that it had acquired new information indicating that Hogan represented Arthur Murgo, an important state's witness, in an unrelated criminal matter pending in federal court. In addition, it was shown that Hogan was scheduled to be on trial in a federal court at about the time the defendant's state trial was to commence. Neither of these facts had previously been revealed to the court. Hogan explained that he had forgotten or was unaware of the conflicting trial dates, and, as to the potential conflict of interest, he urged that he had consulted with Murgo and was of the opinion that it was neither unethical nor prejudicial to Murgo or to the defendant to act as counsel to the defendant. The court again denied the petition, at this point refusing Hogan permission to sit at the counsel table during the trial.

While the sixth amendment right to the effective assistance of counsel in criminal prosecutions "implies a degree of freedom to be represented by counsel of defendant's choice, this guarantee does not grant the unconditional right to representation in a state court by a particular out-of-state attorney." Ross v. Reda, 510 F.2d 1172, 1173 (6th Cir.). It is well settled that "permission to a nonresident attorney, who has not been admitted to practice in a court, to appear pro hac vice in a case there pending is not a right but a privilege, the granting of which is a matter of grace resting in the sound discretion of the presiding judge." Thomas v. Cassidy, 249 F.2d 91, 92 (4th Cir.), cert. denied, 355 U.S. 958, 78 S.Ct. 544, 2 L.Ed.2d 533; Silverman v. Browning, 414 F.Supp. 80 (D.Conn.), affirmed, 429 U.S. 876, 97 S.Ct. 228, 50 L.Ed.2d 162. The courts of each state have power and control over the attorneys permitted to practice within the state system; Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed.2d 156; limited principally by the constitutional mandate that qualifications have a "rational connection with the applicant's fitness or capacity to practice law." Schware v. Board of Bar Examiners, 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796.

In the present case, sufficient justification existed to exclude a foreign attorney from practice in a specific local case. Ross v. Reda, supra. Attorney Hogan, at the time his petition was being heard, failed to reveal the potential conflict which existed by virtue of his representation of a state's witness in a separate criminal proceeding. When the issue was finally brought to the court's attention, Hogan stated that he had consulted with Murgo and that he himself felt no ethical problems existed. There is nothing in the record, however, which indicates that the defendant himself was made aware of the situation, or that, when once made aware of it, he expressly assented to it.

A potential conflict of interest, such as this, may vitiate the effective assistance of counsel. People v. Stone, 25 A.D.2d 950, 270 N.Y.S.2d 559. Although the right to the effective assistance of counsel is " fundamental"; Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530; it may be waived. A valid waiver of a constitutional right, however, must be knowing and intelligent, accomplished with sufficient awareness of the relevant circumstances and likely consequences. Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; United States v. Garcia, 517 F.2d 272 (5th Cir.). Under circumstances such as those existing in this case, the fact that a defendant, with full awareness of the circumstances and consequences of the potential conflict, waives his right to the effective assistance of counsel must appear on the record in clear, unequivocal, unambiguous language. United States v. Garcia, supra, 276. No such waiver is evident in this case, nor, indeed, is there any indication that the defendant was fully consulted as to the potential conflict. See Code of Professional Responsibility EC 5-19, Practice Book, p. 27. It is easy to say in hindsight that the defendant, who...