Ullmann v. State

Decision Date09 August 1994
Docket NumberNo. 14620,14620
Citation230 Conn. 698,647 A.2d 324
CourtConnecticut Supreme Court
PartiesThomas A. ULLMANN v. STATE of Connecticut.

G. Douglas Nash, Public Defender, for plaintiff in error.

Susan C. Marks, Asst. State's Atty., with whom on the brief, were Michael Dearington, State's Atty., and James G. Clark, Asst. State's Atty., for defendant in error.

Glenn E. Coe and Andrew Houlding filed a brief for Connecticut Crim. Defense Lawyers Ass'n, Inc., as amicus curiae.

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and MARY R. HENNESSEY, JJ.

CALLAHAN, Associate Justice.

The plaintiff in error, Thomas A. Ullmann (plaintiff), was held in criminal contempt by the trial court pursuant to General Statutes § 51-33 1 for refusing to testify in a criminal trial. He later filed a motion to vacate the judgment of contempt, which the trial court denied. The plaintiff subsequently filed this writ of error.

The plaintiff, the public defender for the judicial district of New Haven, had represented a defendant, Eddie Ford, in a criminal case from approximately July, 1991, until June, 1992, at which time the plaintiff withdrew from the case and a special public defender was appointed. Ford, who originally had been charged in an information with one count each of robbery in the first degree, robbery in the second degree and tampering with a witness, was further charged on August 1, 1992, with an additional count of tampering with a witness.

The additional count of tampering with a witness was occasioned when, on June 1, 1992, a witness in Ford's case, Carlos Robles, received a collect telephone call in which he was threatened with bodily harm if he testified against Ford. During Ford's trial, the state introduced evidence that the call had been placed at approximately 9:43 p.m. from a telephone located in a cellblock at the New Haven community correctional center. An administrative captain at the correctional center testified that Ford had been incarcerated in that cellblock on June 1, and that he was one of approximately twenty inmates with access to the telephone used to call Robles at the relevant time.

The plaintiff was subpoenaed to testify in Ford's trial with regard to the tampering charge relating to the telephone call. The trial commenced on August 31, 1992. On September 1, 1992, the plaintiff moved to quash the subpoena. Outside the presence of the jury, the assistant state's attorney prosecuting Ford's case made the following offer of proof concerning the information that the state sought to elicit from the plaintiff: "I will ask him where he works for background, who he is and what he does. I will ask him then did you represent Eddie Ford from approximately July 30 of 1991 until June 28, 1992, in this criminal case. On June 1 of 1992 did you meet with me in my office.... Did I then give you a copy of several police reports including State's Exhibit L...." The state continued with its offer of proof as follows: "Prior to my giving you that document did you have the phone number and address of Carlos Robles. The answer to that I believe will be no. And then the last question I would ask, did you meet with Eddie Ford that evening at the Whalley Avenue Correctional Center and I will stop at that point." (Emphasis added.)

The following facts are undisputed. The meeting between the plaintiff and the assistant state's attorney, wherein the plaintiff received police reports, one of which contained Robles' telephone number, took place at approximately 4 p.m. on June 1, 1992. The plaintiff met with Ford at the correctional center at approximately 6 p.m. on that same day. Robles' telephone number was not listed in the New Haven telephone directory under "Robles." Instead, it was listed under "Santos-Robles." Thus, the number was not readily available to anyone who lacked that information. Because Robles testified that he did not recognize the voice on the telephone to be that of Ford, the state's theory of Ford's criminal liability for tampering with a witness was not confined to Ford as a principal but also included Ford as an accessory.

The state claimed that the testimony that it sought to elicit from the plaintiff would permit the jury to infer that Ford had obtained Robles' telephone number from the plaintiff during their meeting at the correctional center on the evening of June 1, 1992. The plaintiff objected to answering the proposed questions on the ground that to do so would require him to disclose information relating to his representation of his client from which allegedly privileged communications could be inferred. 2 The plaintiff argued to the trial court that any disclosure of information relating to the representation of his former client was barred by the Rules of Professional Conduct, the attorney-client privilege, and the work product doctrine. He also argued that the information could be obtained through other means, would damage his attorney-client relationship with Ford, and would also damage the relationship of the public defender's office with other clients. The trial court rejected his claims and denied his motion to quash the subpoena.

The plaintiff subsequently took the stand at Ford's trial. In response to the state's questions, he testified that he had been employed by the office of the public defender since 1977, and that he had represented Ford. When asked, however, whether he had met with the assistant state's attorney on June 1, 1992, he refused to answer and further indicated that he would not answer the remainder of the questions proposed by the state. When directed by the court to answer, the plaintiff again refused. When the court inquired of Ford as to whether he would waive the attorney-client privilege, he stated that he would not. The court thereupon held the plaintiff in criminal contempt "for refusing to answer, to obey the direct order of the court," and fined him $100.

Ford was convicted of all of the charges against him, including the charge of tampering with a witness that involved the telephone call made from the correctional center on June 1, 1992. On appeal, however, the Appellate Court reversed Ford's conviction of tampering with a witness arising from that telephone call, holding that the state had failed to adduce sufficient evidence to prove that it had been Ford or someone acting at his behest, rather than any of the other inmates with access to the telephone, acting on his own, who had made that call. State v. Ford, 33 Conn.App. 143, 634 A.2d 1188 (1993), cert. granted, 228 Conn. 918, 636 A.2d 849 (1994). We subsequently reversed the judgment of the Appellate Court and reinstated the jury verdict. State v. Ford, 230 Conn. 686, 646 A.2d 147 (1994).

After Ford's trial had concluded, the plaintiff filed a motion to vacate the judgment of contempt against himself on the grounds that the trial court improperly had punished him for criminal rather than civil contempt, and that the trial court had failed to balance the need for this testimony against the possible harm to the attorney-client relationship. The trial court denied the motion to vacate the contempt judgment. The plaintiff then filed this writ of error, claiming that: (1) the exclusive sanction for his refusal to testify is contained in General Statutes § 51-35, 3 a civil contempt statute; (2) the testimony that the state sought to elicit was protected by the attorney-client privilege and the work product rule; and (3) the trial court improperly balanced the need for his testimony against the possible harm to the attorney-client relationship.

I

This case comes to us on a writ of error, which is the sole method of reviewing a summary criminal contempt proceeding. Naunchek v. Naunchek, 191 Conn. 110, 113, 463 A.2d 603 (1983); Moore v. State, 186 Conn. 256, 257, 440 A.2d 969 (1982). This court's review of summary criminal contempt is limited to three issues: "(1) whether the designated conduct is legally susceptible of constituting a contempt ... (2) whether the punishment imposed was authorized by law ... and (3) whether the judicial authority was qualified to conduct the hearing." (Citations omitted.) Moore v. State, supra at 257, 440 A.2d 969. We are concerned in this instance with only the issue of whether the punishment was authorized by law.

The plaintiff initially argues that the trial court improperly held him in criminal contempt pursuant to § 51-33 for refusing to testify. He contends that his refusal to testify could be addressed only as a civil contempt pursuant to § 51-35. We disagree.

Section 51-33, the criminal contempt statute, has its origins in a statute enacted in 1667. 2 J. Hammond, Public Records of the Colony of Connecticut, From 1665-77 (1852) p. 60. As codified in 1796, the statute provided that "if any Person ... in the Presence of any Court, shall, either in Words or Actions behave contemptuously or disorderly, it shall be in the power of the Court ... to inflict such Punishment upon him or them as they shall judge most suitable to the Nature of the Offence." Connecticut Acts and Laws (1796) "An Act Concerning Delinquents," p 8, p. 143. The progenitor of § 51-35, the civil contempt statute, was enacted in 1711. It provided that "any Person who shall be required to give his evidence upon tryal ... and shall refuse to make oath to answer to such questions ... shall be by such court ... committed to goal, and there remain at his own cost and charge until he shall give evidence as aforesaid." 5 C. Hoadly, Public Records of the Colony of Connecticut, From 1706-16 (1870) p. 233. By 1887, both statutes approximated their present form. General Statutes (1887 Rev.) §§ 842 4 and 843; 5 see also General Statutes (1902 Rev.) §§ 508 and 506; General Statutes (1918 Rev.) §§ 5522 and 5520; General Statutes (1930 Rev.) §§ 5407 and 5405; General Statutes (1949 Rev.) §§ 7704 and 7702; General Statutes (Rev. to 1993) §§ 51-35 and 51-33. Nowhere in...

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