State v. Tyler-Barcomb, TYLER-BARCOMB

Citation197 Conn. 666,500 A.2d 1324
Decision Date03 December 1985
Docket NumberTYLER-BARCOMB
CourtSupreme Court of Connecticut
PartiesSTATE of Connecticut v. StephanieSTATE of Connecticut v. Frederick S. BARCOMB, Jr.

F. Mac Buckley, Hartford, with whom, on the brief, was Susan K. Smith, Hartford, for appellants (defendant in each case).

Susan C. Marks, Sp. Asst. State's Atty., with whom were Harry S. Gaucher, Jr., State's Atty., and, on the brief, John M. Massameno, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, SANTANIELLO and CALLAHAN, JJ.

SANTANIELLO, Associate Justice.

After a joint jury trial, the defendants Frederick Barcomb (hereinafter Barcomb) and Stephanie Tyler-Barcomb (hereinafter Tyler-Barcomb) were convicted of impairing the morals of a child in violation of General Statutes § 53-21. Barcomb was also convicted of sexual assault in the second degree in violation of General Statutes § 53a-71(a)(1). Tyler-Barcomb received a total sentence of not less than two and one-half nor more than five years, and Barcomb received a total effective sentence of not less than five nor more than ten years.

On appeal the defendants claim that: (1) there was insufficient evidence to convict Tyler-Barcomb of the crime charged; (2) they were denied their right to effective assistance of counsel in that they were represented by the same counsel at trial; (3) they were deprived of their right to a fair trial by the remarks of the prosecutor in his closing argument; (4) the trial court erred in admitting hearsay evidence; (5) the trial court abused its discretion in allowing cross-examination of Barcomb on prior misconduct; (6) they were denied the full effect of their constitutional right to remain silent by the admission of evidence which indicated that they were silent in the face of accusation; and (7) they were denied their right to effective assistance of counsel by their counsel's failure to make various objections at trial. We find no error.

I

The defendants first claim that there was insufficient evidence to convict Tyler-Barcomb of a violation of General Statutes § 53-21, risk of impairing the morals of a child. Section 53-21 makes it a crime for any person "wilfully or unlawfully [to cause] or [to permit] any child under the age of sixteen years to be placed in such a situation that ... its morals [are] likely to be impaired, or [to do] any act likely to impair the health or morals of any such child...." " 'In reviewing a sufficiency of evidence claim on appeal the question presented is whether, viewing the evidence favorably to sustaining the verdict, the trier could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.' State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985); State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S.Ct. 1455, 79 L.Ed.2d 772 (1984)." State v. Thompson, 197 Conn. 67, 74, 495 A.2d 1054 (1985). Reviewing the record and the facts adduced at trial, we conclude that there was sufficient evidence to convict the defendant Tyler-Barcomb of the crime charged.

The jury could reasonably have found the following facts. The victim of the crimes, the defendant Tyler-Barcomb's daughter, was between twelve and thirteen years old at the time of the alleged incidents. The defendant Barcomb, the then live-in boyfriend of Tyler-Barcomb, sexually abused the child a number of times between June, 1980, and June, 1981. Tyler-Barcomb knew what Barcomb had been doing and yet did nothing to prevent further abuse. Tyler-Barcomb also knowingly had sexual intercourse with Barcomb in the presence of her daughter. On the basis of these facts, we cannot say that it was unreasonable for the jury to have concluded that the defendant Tyler-Barcomb violated General Statutes § 53-21. 1

II

The defendants next claim that they were denied their right to effective assistance of counsel in that they were represented by the same counsel during trial. Essentially they argue that the trial court failed to give them an adequate warning as to the potential for conflict of interest and that the court should not have permitted joint representation under these circumstances. We disagree. 2

"Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest." Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220 (1981). But "[r]equiring or permitting a single attorney to represent codefendants ... is not per se violative of constitutional guarantees of effective assistance of counsel. This principle recognizes that in some cases multiple defendants can appropriately be represented by one attorney." Holloway v. Arkansas, 435 U.S. 475, 482, 98 S.Ct. 1173, 1177, 55 L.Ed.2d 426 (1978). Just as a defendant may waive his sixth amendment protections by electing to forego counsel entirely, he may also waive his right to separate representation in a multidefendant prosecution. State v. Marion, 175 Conn. 211, 218, 397 A.2d 533 (1978). Such a waiver, however, must be knowingly and intelligently made. Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1883, 68 L.Ed.2d 378, reh. denied, 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981). In multidefendant prosecutions where codefendants share an attorney and where the trial court knows of or reasonably should know of possible conflicts, the trial court is under an affirmative duty to inquire as to the knowing and intelligent nature of the defendants' waiver. Festo v. Luckart, 191 Conn. 622, 629, 469 A.2d 1181 (1983). The scope of the trial court's inquiry should be thorough enough to warn the defendants of the dangers of dual representation and yet not be overly intrusive into the attorney-client relationship. Festo v. Luckart, supra, 628, 469 A.2d 1181; see People v. Lloyd, 51 N.Y.2d 107, 111, 432 N.Y.S.2d 685, 412 N.E.2d 371 (1980). "If the defendant reveals that he is aware of and understands the various risks and pitfalls, and that he has the rational capacity to make a decision on the basis of this information, and if he states clearly and unequivocally ... that he nevertheless chooses to hazard those dangers, we would regard his waiver as knowing and intelligent and allow his choice to 'be honored....' " (Citations omitted.) United States v. Curcio, 680 F.2d 881, 888-89 (2d Cir.1982), quoting Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 2540, 45 L.Ed.2d 562 (1975).

The record in this case indicates that the defendants knowingly and intelligently waived their right to separate counsel. The issue of conflict of interest was raised at three different times during the proceedings below. On July 24, 1981, the defendants' first court appearance, the defendants' attorney explained to the court that he had gone over possible conflicts of interest with the defendants and that they were satisfied with the dual representation. On October 2, 1981, when the defendants entered their pleas, the trial court inquired again as to the propriety of joint representation. Barcomb stated at that time that he understood that he was constitutionally entitled to competent representation and that he saw no conflicts. On March 2, 1982, immediately before jury selection, the issue of joint representation was once again raised. On that day, the state's attorney went over in detail possible conflicts of interest including evidence which indicated that Tyler-Barcomb may have been passive due to the threats of Barcomb. The trial court then went over the possible conflicts of interest with the defendants and inquired as to whether they understood the dangers of joint representation. They responded that they understood and that they were satisfied with joint representation. The court inquired still further and asked if they understood that they were waiving their rights to separate representation. They both responded affirmatively and stated that they wanted the one attorney to represent them both. 3

III

The defendants have raised five other claims of error. However, because of the inadequacy of the record and the defendants' failure properly to preserve issues for appeal, we cannot review those remaining claims.

Although the rule is well established, it bears repeating that "[o]nly in most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court." State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973). "The policy behind this rule is both ancient and sound and 'does not permit a defendant in a criminal case to fail, whether from a mistake of law, inattention or design, to object to matters occurring during a trial until it is too late for them to be corrected or even considered and then, if the outcome proves unsatisfactory, to raise them for the first time on an appeal.' State v. Taylor, 153 Conn. 72, 86, 214 A.2d 362 [1965], cert. denied, 384 U.S. 921, 86 S.Ct. 1372, 16 L.Ed.2d 442 [1966]; State v. Evans, supra, 165 Conn. at 66, 327 A.2d 576; State v. Tuller, 34 Conn. 280, 295 [1867]." State v. Baker, 182 Conn. 52, 56, 437 A.2d 843 (1980). The only two "exceptional circumstances" where we have addressed claims for the first time on appeal are "where a new constitutional right not readily foreseeable has arisen between the time of trial and appeal"; State v. Evans, supra, 165 Conn. at 70, 327 A.2d 576; e.g., State v. Vars, 154 Conn. 255, 271-72, 224 A.2d 744 (1966); and "where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial." State v. Evans, supra; e.g., State v. Wright, 197 Conn. 588, 595, 500 A.2d 547 (1985). Outside of these narrow circumstances and cases of...

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