State v. Thompson, 30423.

Citation118 Conn.App. 140,983 A.2d 20
Decision Date01 December 2009
Docket NumberNo. 30423.,30423.
CourtAppellate Court of Connecticut
PartiesSTATE of Connecticut v. Hubert J. THOMPSON.

David J. Reich, special public defender, for the appellant (defendant).

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Warren Maxwell, former senior assistant state's attorney, for the appellee (state).

GRUENDEL, ALVORD and BORDEN, Js.

GRUENDEL, J.

The defendant, Hubert J. Thompson, appeals from the judgment of conviction, rendered after a court trial, of kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A), sexual assault in the first degree in violation of General Statutes § 53a-70(a) and attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49(a)(2) and 53a-70(a). On appeal, the defendant claims that (1) he was denied effective assistance of counsel as a result of the trial court's failure to inquire into an alleged conflict of interest of his defense counsel, (2) he was denied his due process rights as a result of the court's alleged failure to canvass him adequately regarding his waiver of the right to a jury trial and (3) his conviction of kidnapping in the first degree should be reversed in light of our Supreme Court's change in its interpretation of § 53a-92. We affirm the defendant's conviction of sexual assault in the first degree and attempt to commit sexual assault in the first degree. We reverse the defendant's conviction of kidnapping in the first degree and remand the case for a new trial on that charge.

The court reasonably could have found the following facts. In September, 1994, the victim1 lived with her then boyfriend in an apartment in Hartford and was addicted to drugs. At approximately 11 p.m. on September 23, 1994, the victim left her apartment and drove her boyfriend's leased car to South Marshall Street, where she had purchased drugs in the past and hoped to do so again on that particular occasion. In her experience, there was a certain etiquette in purchasing drugs. Specifically, the victim would stop her car, wait for the dealer to approach the driver's side, tell the dealer what she wanted and quickly complete the exchange. Generally, such transactions lasted only a matter of seconds.

As the victim came to a complete stop at a stop sign on South Marshall Street on the evening of September 23, 1994, the defendant approached and entered the car from the passenger side without invitation. The victim recognized the defendant as the drug dealer from whom she had purchased drugs approximately one week earlier. In that transaction, the victim purchased drugs from the defendant on credit and had yet to repay him when he entered the car. When the defendant entered the car, the victim told him that she had his money for the drugs, but he was angry, refused to accept the money and, instead, said something to the effect of: "I told you not to play with me." The defendant next slapped the victim and instructed: "Bitch, pull over." After the victim complied, the defendant removed the keys from the ignition and told the victim to get out of the car. Upon exiting the car, the victim attempted to escape, but the defendant grabbed her and dragged her to the side of a nearby building, at which point someone yelled, "man, you shouldn't do that."2 The defendant ordered the victim to remove her clothes and she complied after being punched several times in the face because "[she] was terrified [and] didn't know what [the defendant] was going to do. [She] thought [she] was going to get really hurt...." There, behind the building, the defendant sexually assaulted the victim. The entire episode lasted fifteen to twenty minutes.3

Following that episode, the defendant led the victim back to the car, forced her into the passenger seat and drove along several streets. There was no conversation during that ride. The victim "was terrified [and] didn't know where [the defendant] was taking [her] and what he was going to do next." As the car came to a stop at a traffic signal, approximately one block from the victim's apartment, the victim recognized that this was her chance to escape. While the car was still stopped, she got out, ran to her apartment complex and screamed for help until her boyfriend let her in at the front gate. Upon the victim's return, her boyfriend notified the police, who responded soon thereafter. The victim also went to a local hospital, where she underwent examination. The defendant was later apprehended, and a court trial followed, at the conclusion of which the court found the defendant guilty of kidnapping in the first degree, sexual assault in the first degree and attempt to commit sexual assault in the first degree. From that judgment, the defendant appeals.

I

The defendant claims that the court violated his right to the effective assistance of counsel as guaranteed by the sixth amendment to the United States constitution by failing sua sponte to inquire into an alleged conflict of interest between him and his trial counsel, M. Donald Cardwell, when the court knew or should have known about the conflict. We disagree.

The following additional facts are relevant to the defendant's claim. Cardwell had been convicted of a federal criminal charge for which he awaited sentencing. On October 1, 1998, with Cardwell's advice, the defendant informed the court that he wanted to forgo his right to a jury trial and be tried by the court. When canvassed by the court, the defendant indicated that he was aware of Cardwell's conviction and pending sentence and that Cardwell had explained to him such matters fully. The defendant further responded that he wanted Cardwell to continue to represent him and that he did not have any questions for the court or Cardwell. Subsequently, Cardwell affirmatively represented to the court that there was no conflict of interest between himself and the defendant and that his conviction would not impair his ability to represent the defendant adequately.

Before reviewing the defendant's claim, we note that our review is limited to the actions of the court, not the actions of defense counsel. Our Supreme Court has observed that "[a]lmost without exception, we have required that a claim of ineffective assistance of counsel ... be raised by way of habeas corpus, rather than by direct appeal, because of the need for a full evidentiary record for such [a] claim.... On the rare occasions that we have addressed an ineffective assistance of counsel claim on direct appeal, we have limited our review to allegations that the defendant's sixth amendment rights had been jeopardized by the actions of the trial court, rather than by those of his counsel." (Internal quotation marks omitted.) State v. Drakeford, 261 Conn. 420, 428, 802 A.2d 844 (2002). Moreover, we have addressed such claims "only where the record of the trial court's allegedly improper action was adequate for review or the issue presented was a question of law, not one of fact requiring further evidentiary development." State v. Crespo, 246 Conn. 665, 688, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S.Ct. 911, 142 L.Ed.2d 909 (1999). Accordingly, we review the defendant's claim as a question of law, and, therefore, our review is plenary.

"The sixth amendment to the United States constitution as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution, guarantee to a criminal defendant the right to [the] effective assistance of counsel.... Where a constitutional right to counsel exists ... there is a correlative right to representation that is free from conflicts of interest.... There are two circumstances under which a trial court has a duty to inquire with respect to a conflict of interest: (1) when there has been a timely conflict objection at trial ... or (2) when the trial court knows or reasonably should know that a particular conflict exists...."4 (Citation omitted; internal quotation marks omitted.) State v. Cator, 256 Conn. 785, 793-94, 781 A.2d 285 (2001). Before being charged with a duty to inquire, the court must have before it evidence that a defendant's sixth amendment right to effective assistance of counsel is in jeopardy. State v. Crespo, supra, 246 Conn. at 697, 718 A.2d 925. A court's failure to inquire when it has an affirmative duty to do so constitutes the basis for reversal of a defendant's conviction. Id., at 686, 718 A.2d 925.

No timely conflict objection was made in this case. Therefore, when determining whether the court had a duty to inquire, we must determine whether the court knew or reasonably should have known that a conflict existed. Because the defendant did not raise any objection to Cardwell's representation at trial, he seeks to prevail on his unpreserved claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Golding holds 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. In the absence of any one of these conditions, the defendant's claim will fail." (Emphasis in original.) Id. For the reasons we will set forth, we conclude that the defendant's claim fails under the third prong of Golding.

Our Supreme Court has explained that a conflict of interest is "that which impedes [counsel's] paramount duty of loyalty to his client [such that] an attorney may be considered to...

To continue reading

Request your trial
32 cases
  • Campos v. Coleman
    • United States
    • Connecticut Supreme Court
    • 6 Octubre 2015
    ...by judgment"; id., 496; we clearly were referring to cases in which there was no appeal pending. See, e.g., State v. Thompson, 118 Conn. App. 140, 154, 983 A.2d 20 (2009) (prior judicial decision applied to case in which judgment had been rendered and in which appeal from judgment was pendi......
  • Nogueira v. Comm'r of Corr.
    • United States
    • Connecticut Court of Appeals
    • 11 Octubre 2016
    ...a trial to the court, whereas most of the post-Salamon cases have involved jury trials. One exception, however, is State v. Thompson , 118 Conn.App. 140, 983 A.2d 20 (2009), cert. denied, 294 Conn. 932, 986 A.2d 1057 (2010). In that case, the defendant was convicted of kidnapping in the fir......
  • State Of Conn. v. Kitchens
    • United States
    • Connecticut Supreme Court
    • 5 Enero 2011
    ...pending.... Marone v.Waterbury, 244 Conn. 1, 10-11, 707 A.2d 725 (1998).'' (Internal quotation marks omitted.) State v. Thompson, 118 Conn. App. 140, 154, 983 A.2d 20 (2009), cert. denied, 294 Conn. 932, 986 A.2d 1057 (2010); see also State v. Hampton, 293 Conn. 435, 462 n.16, 978 A.2d 1089......
  • White v. Comm'r of Corr.
    • United States
    • Connecticut Court of Appeals
    • 31 Enero 2017
    ...precisely because of the difficulty in determining whether each crime has independent criminal significance. See State v. Thompson , [118 Conn.App. 140, 162, 983 A.2d 20 (2009) ] (within fifteen minutes defendant entered victim's car, pushed her behind a building and sexually assaulted her)......
  • Request a trial to view additional results
2 books & journal articles
  • TABLE OF CASES
    • United States
    • Full Court Press Connecticut Legal Ethics & Malpractice Table of Cases
    • Invalid date
    ...761, 821 A.2d 813 (2003), rev'd, 270 Conn. 516, 853 A.2d 105 (2004) 2-5:2 State v. Swain, 245 Conn. 442 (1998) 4-3:2 State v. Thompson, 118 Conn. App. 140, cert. denied, 294 Conn. 932 (2010) 1-8:1 State v. Thompson, 146 Conn. App. 249 (2013) 6-1 State v. Torres, No. 29481, 2004 WL 2094888, ......
  • CHAPTER 1 - 1-8 CONFLICTS OF INTEREST
    • United States
    • Full Court Press Connecticut Legal Ethics & Malpractice Chapter 1 Client Relationships
    • Invalid date
    ...client at the beginning rather than waiting for the motion to disqualify or the grievance. --------Notes:[317] State v. Thompson, 118 Conn. App. 140, 148, cert. denied, 294 Conn. 932 (2010).[318] Taneja v. Familymeds Group, Inc., No. HHDCV094045755S, 2010 WL 2573762 (May 18, 2010).[319] Sta......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT