Opposition Brief — Tyler-Barcomb v. Connecticut

Supreme Court, U.S,

| FILE

(y) LED

No. 85-1417 MAR 18 1998

JOSEPH F. SPANIOL, JR.

In The —

Supreme Court Of The United States

JANUARY TERM, 1986

STEPHANIE TYLER-BARCOMB and

FREDERICK S. BARCOMB, JR.,

Petitioners,

Vv.

STATE OF CONNECTICUT,

Respondent.

BRIEF IN OPPOSITION TO THE

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT FOR THE

STATE OF CONNECTICUT

JOHN M. MASSAMENO

Assistant State’s Attorney

Senior Appellate Attorney

Office of the Chief State’s

Attorney

Division of Criminal Justice

340 Quinnipiac Street

Wallingford, CT 06492

(203) 265-2373

Counsel of Record for Respondent

Il.

QUESTIONS PRESENTED

WHETHER THE TRIAL COURT'S EXTEN-

SIVE CANVASS OF THE PETITIONERS

CONCERNING THEIR WAIVER OF THE

RIGHT TO SEPARATE COUNSEL WAS

ADEQUATE UNDER THE SIXTH AMEND-

MENT.

WHETHER THE CONNECTICUT SUPREME

COURT PROPERLY REFUSED TO REVIEW

THE PETITIONERS ' CLAIM THAT

EVIDENCE OF THEIR SILENCE IN THE

FACE OF ACCUSATION: WAS ERRONEOUS-

LY ADMITTED WHERE THE CLAIM WAS

NOT REVIEWED BECAUSE PETITIONERS

DID NOT PRESENT AN ADEQUATE RECORD

TO SUPPORT IT.

TABLE OF CONTENTS

Page

RULE I0VOENED..<« «© « «= «© & «© & we Be

OPINION BELOW. « «© ec ee ceeee lh

JURISDICTION . «- ee ec se © © oo oo ek

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CONCLUS ION * o s - a - o * + . ° ° 1 3

TABLE OF AUTHORITIES

Page

Barra v. Ridgefield Card & Gift

Gallery Ltd., 194 Conn. 400,

480 A.2d 557 (1984) . .... . 10

Doyle v. Ohio,- 426 U.S. 610

(1976) . o . + * ° . - 7 - + 5, 12

Edwards v. Arizona, 451 U.S.

477 (1981) ~. «© «© «© «© © += «© « #7 8

Holloway v. Arkansas, 435 U.S.

wey | =a 7

Jenkins v. Anderson, 447 U.S.

231 (1980) + ~ * — a * —_ > . — -12

Michigan v. Tyler, 436 U.S. 499

(1978) S + 7 + ° . . . - ° a . -10

State v. Thompson, 197 Conn. 67,

495 A.2G 1054 (1985) . .« « « « 1

Wolfe v. North Carolina, 364 U.S.

177 (1960) 7 a > 7 a . a“ s s * . 5

Rules of Court

Conn. Practice Book § 3060D .10

RULE INVOLVED

Connecticut Rules of Court § 3060D

The supreme court may reverse or

modify the decision of the trial court

if it determines that the decision is

clearly erroneous in view of the

evidence and pleadings in the whole

record.

If the supreme court deems it

necessary to the proper disposition of

the cause, it may remand the case for a

further articulation of the basis of the

trial court's decision.

It is the responsibility of the

appellant to provide an adequate record

for review.

OPINION BELOW

The opinion of the Connecticut

Supreme Court (Pet. App. 2a-l3a) is

reported at 197 Conn. 666, =A.2d

(1985).

JURISDICTION

The judgment of the Connecticut

Supreme Court was entered on December 3,

1985. A motion to reargue was denied on

December 20, 1985. The petition for a

writ of certiorari was filed on February

18,1986. The jurisdiction of this Court

is invoked under 28 U.S.C. 1257(3).

STATEMENT

Following a joint jury trial, the

petitioners Barcomb and Tyler-Barcomb

were convicted of impairing the morals

of a child. Barcomb also was convicted

of sexual assault in the second degree.

Both petitioners desired to be,

and were, represented by one attorney at

trial. The issue of potential conflict

of interest arising from this joint

representation was raised on three

separate occasions prior to trial. (Pet.

App. 22a-32a).

On July 24, 1982, the petitioners'

first court appearance, the petitioners'

attorney explained to the court that he

had gone over possible conflicts of

interest with the petitioners and that

they were satisfied with the dual

representation. On October 2, 1981, when

the petitioners' 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-Bar-

comb may have been passive due to the

threats of Barcomb. The trial court then

went over the possible conflicts of

interest with the petitioners’ 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’ inguired

still further and asked if they under-

stood 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. (Pet. App. 6a-7a)

During trial, two Connecticut

State Troopers testified regarding a

meeting they had with the petitioners

prior to their arrest. The petitioners

raised no objections to this testimony

at trial.

On appeal to the Connecticut

Supreme Court, the petitioners claimed

that the trial court failed to give them

an adequate warning as to the potential

for conflict of interest arising from

joint representation. They also claimed

that the troopers' testimony had been

erroneously admitted, as it revealed

that the petitioners were silent in the

face of accusation after being warned of

their right to remain silent, in viola-

tion of Doyle v. Ohio, 426 U.S. 610

(1976).

Regarding the petitioners‘ first

claim, the Connecticut Supreme Court

found that the record established that

the petitioners knowingly and intelli-

gently waived theic right to separate

counsel.

The Connecticut Supreme Court also

found that, although review of the

petitioners' claim invoking Doyle v.

Ohio, supra, was not precluded by their

failure to raise it at trial, it was

precluded by the absence of an adequate

record for review. The Supreme Court

Stated:

The record in this case... is

unclear as to whether the defen-

dants have made out a viable fifth

amendment claim. .. . Because the

testimony of the two state police

officers in this case was sparse

and disjointed, it is impossible

- 5-

to tell whether the defendants

were given their Miranda rights

before or after they stated that

they did not wish to speak with

the officers. Thus, we are unable

to tell from this record whether

under Doyle and Jenkins there has

been any deprivation of a funda-

mental constitutional right. It is

incumbent upon an appellant to

ensure that we are provided with

an adequate record to review the

claims of error ... We will not

presume error.

State v. Tyler-Barcomb, 197 Conn. at

675-76, Pet. App. at lla-12a.

The petitioners' convictions were

unanimously affirmed by the Connecticut

Supreme Court which subsequently denied,

without further opinion, their motion to

reargue.

ARGUMENT

le The petitioners initially claim

that the trial court's instructions and

inquiries regarding their desire to be

represented by on attorney were insuffi-

cient to form the basis for a knowing

and intelligent waiver of their sixth

amendment rights.

The issue of whether codefendants

may appropriately be represented by one

attorney has been resolved by this Court

in Holloway v. Arkansas, 435 U.S. 475

(1978). Similarly, the general issue of

what action is necessary to constitute a

knowing and intelligent waiver of Sixth

Amendment protections has’ received

extensive consideration by this Court.

See, e.g., Edwards v. Arizona, 451 U.S.

477 (1981). The petitioners do not

Suggest that this case involves any

~~ 7 =

unique circumstances removing it from

the ambit of established case law

pertaining to the knowing and intelli-

gent waiver of sixth amendment rights.

Furthermore, as demonstrated by the

petitioners' failure to cite any case

law apart from two Connecticut Supreme

Court decisions, the issue they raise is

not a legal question on which various

courts have divided.

In Edwards v. Arizona, supra, 45l

U.S. at 482, the existence of a knowing

and intelligent waiver was found to

depend in each instance “upon the

particular facts and circumstances

Surrounding that case." The petitioners

do not suggest that the Connecticut

Supreme Court applied an erroneous

standard for determining waiver in this

case; rather, they contest the court's

conclusion that the facts were suffi-

cient to demonstrate that they under-

stood the risks involved in joint

representation.

Consideration of the petitioners'

claim would add nothing of precedential

value to Sixth Amendment jurisprudence

and would result in the expending of

this Court's resources to resolve a

question wholly dependent on a unique

factual context. See Wolfe v. North

Carolina, 364 U.S. 177, 196 (1960). The

claim does not warrant further review.

2< The petitioners' second claim is

that the beanewhieuk Supreme Court'’s

determination that the record was

inadequate for review of their fifth

amendment claim was incorrect.

Under Connecticut case law and

rules of court, the state Supreme Court

is not bound to consider a claim of

error which is not supported by an

adequate record. It was the petitioners'

burden to ensure that the Connecticut

Supreme Court was provided with an

adequate record to support their Fifth

Amendment claim. State v. Thompson, 197

Conn. 67, 81, 495 A.2d 1054 (1985);

Barra v. Ridgefield Card & Gift Gallery,

Ltd., 194 Conn. 400, 407, 480 A.2d 557

(1984); Connecticut Rules of Court §

3060D. The Connecticut Supreme Court's

refusal to consider a claim which is not

Supported by an adequate factual record

rests on independent and adequate state

grounds which preclude further review by

this Court. Michigan v. Tyler, 436 U.S.

499, 512 n.7 (1978).

Furthermore, as the petitioners

now concede, their constitutional claim

» 16 «

depends on the existence of two meetings

between the state troopers and the

petitioners, one on June 13, 1981 and

one on June 15, 1981. Petition at 15-16.

The Connecticut Supreme Court found,

however, that only the June 15 meeting

occurred.l1 State v. Tyler-Barcomb,

1 The Connecticut Supreme Court also found

that the testimony relating to that meeting was

so "sparse and disjointed" as to render any

conclusion regarding the chronology of events

impossible. The petitioners now concede that

viewed separately, the testimony of each trooper

is ambiguous as to whether the petitioners'

refusal to comment occurred before or after they

were given Miranda rights. (Petition at 15-16).

They claim, however, that it is “extremely

clear" from the transcript that two separate

meetings occurred. Neither trooper, however,

testified that two meetings occurred. Trooper

Hardell described a meeting, which he said

occurred June 13, at which the petitioners and

Troopers Hardell and Heroux were present. T. at

200-201. Trooper Heroux testified that she did

not meet with the petitioners on June 13, but

described a June 15 meeting involving both

troopers and the petitioners. T. at 263-64.

Trooper Heroux's description of the “June 15

meeting” and Trooper Hardell's description of

the "June 13 meeting” were quite similar. T. at

201-202; 263-264.

» i) «

197 Conn. at 675; Pet. App. at lla. The

resources of this Court ought not to be

spent in resolving a purely factual

dispute which would add nothing either

to the scope of the holdings in Doyle v.

Ohio, 426 U.S. 610 (1976) and Jenkins v.

Anderson, 447 U.S. 231 (1980), or to

Fifth Amendment jurisprudence general-

ly.2

2 If this Court were to grant review on this

issue, the State assumes it would limit its

consideration to the question of whether the

Connecticut Supreme Court was required to review

the claim. If the claim were found to be

reviewable, the State further assumes this Court

would remand the case to the Connecticut Supreme

Court to consider the merits. Accordingly, the

State does not address the merits of the Doyle

claim.

- 12 -

CONCLUSION

The petition for a writ of certio-

rari should be denied.

Respectfully submitted.

THE RESPONDENT

STATE OF CONNECTICUT

JOHN J. KELLY

lef State's Attorney

dy lappa

OHN M. MASSAMENO

Assistant State's

Attorney

Senior Appellate

Attorney

Appellate Unit

Office of the Chief

State's Attorney

340 Quinnipiac Street

Wallingford, CT 06492

(203) 265-2373

SUSAN C. MARKS

Deputy Assistant State's

Attorney

Appellate Unit

Office of the Chief

State's Attorney

= 33 «