State v. Woods

BERDON, J.,

dissenting. In the present case, the trial court permitted the prosecutor in his closing argument to urge the jury to draw an adverse inference from the accused’s decision not to call as a witness an attorney who had previously represented him. In my view, this ruling violated the defendant’s right to counsel under both the federal constitution and our state constitution.1

On November 5, 1994, the defendant, Jermaine Woods, was responsible for a fatal shooting. On trial for murder, the defendant argued that — because of his diminished mental capacity — he had believed that he was acting in self-defense. The majority explains that “Gregory St. John, an attorney who had represented the defendant . . . from 1986 through 1990, testified [on direct examination by defense counsel] that the defendant had been difficult to represent because the defendant was ‘slow.’ In St. John’s opinion, it required a great amount of time and effort to explain matters to the defendant.”2

In its closing argument to the jury, the state emphasized that St. John had not interacted with the defendant *821for several years prior to 1994, the year of the shooting. The state then referred to the defendant’s testimony, during cross-examination, that: (1) he had entered a plea bargain in an unrelated criminal matter in 1993; and (2) he had been represented by counsel at that time. With the express permission of the court, the state then made the following argument: “We know that the defendant was represented by an attorney in 1993. We haven’t heard from that attorney. . . . [T]he only time that it matters what the defendant’s ability to form an intent was is November 4 and 5 of 1994. We don’t need to worry about any other time.” (Emphasis added.) In my view, this argument violated the defendant’s right to counsel, which is protected by the sixth amendment of the United States constitution3 and article first, § 8, of the Connecticut constitution.4

“Th[e] constitutional right to . . . effective assistance of counsel is one of those ‘fundamental principles of liberty and justice which he at the base of all our civil and political institutions.’5 Powell v. Alabama, [287 *822U.S. 45, 67, 53 S. Ct. 55, 77 L. Ed. 158 (1932)].” Palmer v. Adams, 162 Conn. 316, 320, 294 A.2d 297 (1972). “It is . . . settled beyond question that, under both the federal and the state constitutions, th[e] right to the assistance of counsel includes the right to communicate effectively with counsel in the preparation of one’s defense. State v. Mebane, 204 Conn. 585, 603, 529 A.2d 680 (1987), cert. denied, 484 U.S. 1046, 108 S. Ct. 704, 98 L. Ed. 2d 870 (1988) . . . State v. Ferrell, 191 Conn. 37, 42 n.5, 463 A.2d 573 (1983) . . . Flaherty v. Warden, 155 Conn. 36, 39, 229 A.2d 362 (1967) .... [T]he denial of [this right] . . . could convert the appointment of counsel into a sham and nothing more than a formal compliance with the Constitution’s requirement that an accused be given the assistance of counsel. Avery v. Alabama, 308 U.S. 444, 446, 60 S. Ct. 321, 84 L. Ed. 377 [1940]; Chambers v. Maroney, 399 U.S. 42, 59, 90 S. Ct. 1975, 26 L. Ed. 2d 419 [1970]. State v. Greene, 161 Conn. 291, 296, 287 A.2d 386 (1971).” (Internal quotation marks omitted.) Washington v. Meachum, 238 Conn. 692, 731, 680 A.2d 262 (1996).

The threads of “the right to communicate effectively with counsel in the preparation of one’s defense”6 are interwoven with the threads of the attorney-client privilege, which protects any conversation that is “necessary to obtain informed legal advice . . . .”7 Ullmann v. *823State, 230 Conn. 698, 713, 647 A.2d 324 (1994). Together, they form a single fabric.8 The trial court’s ruling in the present case was a dagger that slashed this fabric to shreds. In the process, it converted into a sham the cluster of constitutional guarantees associated with the right to counsel and the attorney-client privilege.

In State v. Toste, 178 Conn. 626, 424 A.2d 293 (1979), this court considered facts that are less egregious than those that are presently before us. The defendant in Tosté argued that the trial court erred by admitting the testimony of a psychologist who had “examined the defendant pursuant to a defense motion but was called to testify as a state’s witness.” Id., 627-28. More specifically, “[t]he defendant contended] that the admission of [the psychologist’s] testimony violated the attorney-client privilege and, thus, the defendant’s sixth amendment right to the assistance of counsel.” (Emphasis added.) Id., 628. The court adopted this argument, concluding that “[t]he court’s admission of [the psychologist’s] testimony as a state’s witness was in error.” Id.

If it violates the right to counsel to admit into evidence the adverse testimony of a psychologist retained to assist defense counsel in preparing his case, then it follows a fortiori that it must violate the right to counsel to permit the state to urge the jury to infer that the *824testimony of a former attorney would have been unfavorable.9 In short, by invading the sanctity of the relationship between the defendant and his former attorney, the trial court in the present case violated the defendant’s right to counsel under the federal constitution and our state constitution.

The majority attempts to justify its refusal to review the defendant’s claim with the argument that he did not properly object at trial. This is simply untrue. The defendant’s trial counsel made a timely objection that was clear and unambiguous, albeit not phrased in the terminology of constitutional discourse.10 It is beyond question that the trial court had ample notice of the defendant’s claim.

Even if I were mistaken in my belief that the defendant’s argument adequately is preserved, we would nevertheless be obligated to reach the defendant’s claim under Golding, which sets forth the rules that govern our review of unpreserved arguments. State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The majority claims that Golding review is inappropriate because the defendant’s claim is “not of constitutional magnitude.” Since both the federal constitution and our state constitution explicitly protect the right to counsel, the majority’s argument is unavailing.11 Moreover, Golding review *825is particularly appropriate in the present case because the defendant’s specific objection at trial alerted the trial court to the issue that the majority declines to reach.

For these reasons, I would reverse the trial court’s judgment and order a new trial. Accordingly, I dissent.

For the text of these constitutional provisions, see footnotes 3 and 4 of this dissent.

In the brief that he submitted to this court, the defendant also emphasized the following evidence: “Rosita Saucier, a guidance counselor with Waterbury Adult Education, also testified to [the defendant’s] level of function, as measured by his grade equivalent scores on the standardized Test of Adult Basic Education. . . . These scores were abysmal. For example, in 1993, a year before the incident at issue here, [the defendant] tested out at a 3.4 (third grade-fourth month) vocabulary level.”

The sixth amendment to the United States constitution provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.”

Article first, § 8, of the Connecticut constitution provides in pertinent part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . . . .”

“When the customary right to counsel was formally incorporated into the Connecticut constitution in 1818, the advice and services of counsel were regarded as crucial to a criminal defendant.... More contemporary developments suggest that this state’s commitment to securing the right to counsel has not diminished since 1818. Not only was Connecticut the first state to adopt the public defender system; State v. Hudson, 154 Conn. 631, 635, 228 A.2d 132 (1967); but the right to counsel was secured to criminal defendants in this state long before the mandate of Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 [(1962) (holding that the fourteenth amendment incorporated the sixth amendment right to counsel)] .... Spring v. Constantino, 168 Conn. 563, 566-67 n.2, 362 A.2d 871 (1975). The United States Supreme Court has turned to the historical experience of Connecticut in expanding the right to counsel under the federal constitution. Faretta v. California, 422 U.S. 806, 827, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); Powell v. Alabama, [287 U.S. 45, 62-63, 53 S. Ct. 55, 77 L. Ed. 158 (1932)].” (Citation omitted; internal quotation marks omitted.) State v. *822Stoddard, 206 Conn. 157, 165, 537 A.2d 446 (1988); see also State v.Piorkowski, 243 Conn. 205, 217, 700 A.2d 1146 (1997).

Washington v. Meachum, supra, 238 Conn. 731.

As the United States Supreme Court emphasized just last year, the attorney-client privilege “is one of the oldest recognized privileges for confidential communications.” Swidler & Berlin v. United States, 524 U.S. 399, 118 S. Ct. 2081, 2084, 141 L. Ed. 2d 379 (1998). “It is important not to weaken the privilege . . . because, as the United States Supreme Court has explained, even the threat of disclosure would have a detrimental effect on attorneys’ ability to advocate for their clients while preserving their ethical duty of confidentiality. Hickman v. Taylor, 329 U.S. 495, 511, 67 S. Ct. 385, 91 L. Ed. 451 (1947) (where threat of disclosure . . . ‘the interests of the clients and the cause of justice [are] poorly served’).” Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., 249 Conn. 36, 48-49, 730 A.2d 51 (1999). Connecticut, in particular, “has a long-standing, strong public policy of *823protecting attorney-client communications. See, e.g., Doyle v. Reeves, 112 Conn. 521, 523, 152 A. 882 (1931) (quoting common-law rule embodied in 5 J. Wigmore, Evidence [2d Ed. 1923] § 2292).” Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., supra, 48.

To make the same point without metaphor, it is impossible to “communicate effectively with counsel” unless you are shielded by the protection of the attorney-client privilege, which “was designed, in large part, to encourage full disclosure by a client to his or her attorney so as to facilitate effective legal representation. State v. Cascone, 195 Conn. 183, 188, 487 A.2d 186 (1985).” (Emphasis added.) Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., 249 Conn. 36, 48, 730 A.2d 51 (1999).

It is apparent that the threat of such an argument would have a chilling effect on the defendant’s “right to communicate effectively with counsel in the preparation of [his] defense.” Washington v. Meachum, supra, 238 Conn. 731. Although a defendant may have access to a person with a law degree, he justifiably will be afraid of communicating effectively with that person if such communication may later be used against him.

The defendant’s trial counsel asserted the following argument: “I don’t think it’s an appropriate argument to be made. The state could have called [the defendant’s] other attorney in rebuttal or attempted to [do so], ... [I]t wasn’t relevant. We presented evidence sufficient to get a charge of diminished capacity, and arguing what we didn’t present I don’t think is appropriate.”

The majority also invokes this court’s policy of declining to “afford Golding review to claims of prosecutorial misconduct . . . where the record does not disclose a pattern of misconduct . . . that was so blatantly *825egregious that it infringed on the defendant’s right to a fair trial.” (Internal quotation marks omitted.) In my view, the violation of the defendant’s rights under both the federal constitution and our state constitution is so blatantly egregious that it per se infringes on his right to a fair trial. This conclusion is unaffected by the fact that the prosecutor in the present case managed to violate the defendant’s constitutional rights without engaging in a lengthy pattern of misconduct.