Appendix — Dukes v. Warden, Conn. State Prison
Supreme Court brief1972
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DEC 23 197)
APPENDIX __ |} € ROBERT SEAVER, CLERK
UE ono"
— Court of the United States —
TerRM, 1971
No, 71-5172
CHARLES O. DUKES,
Petitioner,
v.
WARDEN, CONNECTICUT STATE PRISON,
Respondent.
ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF CONNECTICUT
Petition for Certiorari Filed July 27, 1971
Certiorari Granted November 9, 1971
i
INDEX
Order Appointing Special Attorney
Amended Petition for Habeas Corpus ..
Return of Respondent ........................ | Goerieedaiinethecasadnencdiigenseuieouaeten ener 4
Information oo. seis ae cisavesauiceneceusoessdepistehoastivesdcieeastesauacaie 5
Amendment to Information scovorsosustosinsorsliibinsscootcuvbavansvussaresanediaransonensnesboaeee 6
I cosscacsvdsacdeonnvsssintvensvessensconvecvisnsnresvnnesunveveseonsshiossonenenseednirorercrsbenvonsnsassnsivereese 6
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Superior Court Judgment oo .. iprlastadsigadinisugences 7
Court Proceedings, May 9, 1967 2. B28
Court Pesteniinds May 16, 1967 cs 28 = 26
Court Proceedings, June 2, 1967 20000. 27
Court Proceedings, June 16, 1967 .. nS 28 - 33
Memorandum of Decision in Habeas Corpus . 34 - 37
Judgment in Habeas Corpus .......... eeteecteeneinmecnn O12 OO
Finding on Habeas Corpus Appeal... 38 - 47
Assignment of Errors on Habeas Corpus Appeal _. 47 - 48
Oo) eC) oS 1-) 0) 48 - 57
Judgment Below oi ccceeeesceeeesseessssssseeennnvanvaneneseeesnnnenvenene 08
Exhibit 1, Habeas Corpus 2.0.0 59-60
Exhibit 2, Habeas Corpus ssi(‘iétStS;!;!!!Ct C61 - 2
Exhibit 3, Habeas Corpus 0. ~=63 - 72
Exhibit A, Habeas Corpus, Record on Appeal in
Criminal Case ieee vseeiensntesttitnevnnt sie 73 - 109
Transcript of Testimony, Habeas Corpus............ 110 - 166
1
Order Appointing Special Attorney
The court in the above entitled Habeas Corpus Petition
hereby appoints:
James A. Wade, Esq.
799 Main St.
Hartford, Conn.
as attorney for the petitioner.
Said attorney shall prepare said case for hearing as soon as
possible and notify the clerk of this court in writing as soon
as the case is ready for hearing.
By the Court,
Lioyp E. WEBB,
Assistant Clerk.
August 15, 1969.
No. 161335
CHARLES O. DUKES SUPERIOR COURT
v. HARTFORD COUNTY
WARDEN OCTOBER 2, 1969
Amended Petition For Habeas Corpus
The Petitioner, acting herein by Special Public Defender
alleges as follows:
1. The Petitioner is presently incarcerated in the
Connecticut Corrections’ 'astitute, Somers, Connecticut.
2. The cause of his imprisonment arose as follows:
a. On May 9, 1967, the Petitioner entered a plea of not
guilty in the Superior Court in and for the County
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of Hartford, Johnson, J., to an information charging
him in two counts with violation of the Uniform
State Narcotics Drug Act, and elected to be tried by
a jury of 12.
b. On May 16, 1967, the Petitioner again appeared be-
fore the Superior Court in and for the County of
Hartford, Johnson, J., withdrew his plea of not
guilty and entered a plea of guilty to the afore-
said information and an amendment thereto charg-
ing him with larceny in excess of $250.90 but less
than $2,000.00.
c. On June 16, 1967, the Petitioner was sentenced by
the Superior Court in and for the County of Hart-
ford, Devlin, J., to the Connec.icut State Prison,
Somers, Connecticut, as follows:
i. On the First Count: not less than five nor more
than ten years;
ii, On the Second Count: two years.
3. Prior to this Petition, the Petitioner has not filed an-
other Habeas Corpus Petition.
4. The Petitioner now claims that his detention is illegal
on the ground that his pleas of guilty were involuntary, were
improvidently made and were not the product of his free and
intelligent will for one or more of the following reasons:
a. The Court refused to grant the motion of the Peti-
tioner’s attorney of record to withdraw from the
the case and to permit the Petitioner to proceed with
other counsel of his own choosing;
4 ;
b. The court refused to give the Petitioner a reason-
able continuance to prepare his defense or to obtain
counsel of his own choosing;
3
The Petitioner was, in fact, not permitted to obtain
counsel of his own choosing after the Court had
given him a 24-hour continuance.
At the time of his entry of his plea of guilty, the
Petitioner was suffering from physical and mental
disturbances which prevented him from making a
free, voluntary and intelligent plea to the charges
‘against him;
At the time of his entry of his pleas of guilty, the
Court failed to make adequate inquiry into the vol-
untariness of his pleas;
At the time of his entry of his pleas of gui’ty, the
Petitioner was not afforded effective representation
of counsel because of a basic conflict of interest be-
tween his case and other cases represented by said
counsel;
At the time of sentencing, the Court denied the
Petitioner’s request to withdraw his pleas of guilty
and to obtain other counsel to represent him.
5. The ‘convictions resulting from said pleas of guilty
are violative of the Fifth, Sixth and Fourteenth Amendments
to the Constitution of the United States and Article First of
the Constituion of Connecticut.
Wherefore, the Petitioner prays that a writ of habeas
corpus be issued to bring him before said Court that justice
may be done.
Dated at Hartford, Connecticut, this 2nd day of October,
1969.
CHARLES O. DUKES,
By: JAMES A. WADE
His Attorney.
Filed October 6, 1969.
an eS > Se
RATTLE PENNE TN 6 OCTET NTE RED ERE ELITE NIN gE NRT TRA SNR FIT AMIRD
4
Return of Respondent
1. The respondent is the Warden of the Connecticut
State Prison.
2. On May 16, 1967, the petitioner pleaded guilty to one
count of Violation Of Uniform State Narcotic Drug Act and
one count of Larceny. |
3. On June 16, 1967, the petitioner was sentenced to
the Connecticut State Prison for a term of not less than five
nor more than ten years on the first count and two years on
the second: count.
4. Thereai.zr, the petitioner was duly delivered to the -
Warden of the Connecticut State Prison on a mittimus issued
by the Superior Court for Hartford County pursuant to said
sentence.
5. The respondent holds the petitioner by virtue of the
foregoing proceedings.
6. Acopy of the following are attached hereto:
a. Inforination
b. Amended information
ec. Mittimus
d. Judgment .
e. Transcripts dated:
| (1) May 9, 1967
(2) May 16, 1967
(3) June 2, 1967
(4) June 16, 1967
4)
By Way Of Answer To The Allegations Of The Armended
Petition, The Respondent Pleads As Follows:
i. Paragraph 1 of the amended petition is admitted.
2. Paragraph 2 of .ne amended petition is admitted.
3. Paragraph 3 of the amended petition is admitted.
4. Paragraph 4 of the amended petition is denied.
5. Paragraph 5 of the amended petition is denied.
FREDERICK E. ADAMS, Warden
Connecticut State Prison
Respondent
By JOHN D. LABELLE
State’s Attorney.
Filed October 30, 1969.
INFORMATION
In the Superior Court of the State of Connecticut, Hart-
ford County, May Term, A.D. 1967 John D. LaBelle, State’s
Attorney for the County of Hartford, accuses Charles O.
Dukes of Hartford, Connecticut, of Violation Of Uniform
State Narcotic Drug Act, and charges that at the City of.
Hartford, on or about the 14th day of March, 4967, the said
Charles O. Dukes did possess, have under his control, sell,
or dispense narcotic drugs, to wit: heroin, an opium deriva-
tive (as defined in Section 19-244 of the General Statutes of
Connecticut), in violation of Sections 19-246 and 19-265 of
the 1965 Supplement to the General Statutes.
JOHN D. LaBELLE
State’s Attorney
BE, (BGA ORL
eisai ai
No. 28358
STATE OF CONNECTICUT ) CRIMINAL SESSION
/ SUPERIOR COURT
“
Vv.
HARTFORD COUNTY
* CHARLES O. DUKES \ MAY 16, 1967
Amendment To Information
The information is herein amended by adding the follow-
ing count:
Second Count
And the said Attorney further accuses the said Charles
O. Dukes ox Larceny, and charges that at the City of Hartford,
.on or about the 14th day of March, 1967, the said Charles O.
Dukes stole various articles of a value in excess of Two Hun-
dred Fifty Dollars ($250) but less than Two Thousand Dol-
lars ($2,000), in violation of Section 53-63 of the 1965 Sup-
plement to the General Statutes, and Section 53-65 of the
General Statutes, Revision of 1958.
JOHN D. LABELLE
State’s Attorney
MITTIMUS
No. 28358
To the Sheriff of the County of Hartford, His Deputy, and
to the Warden of the Connecticut State Prison — Greeting:
Whereas, by a judgment of the Superior Court holden at
Hartford within and for the County of Hartford, on the 16th
day of May, 1967, Charles O. Dukes, of Hartford hereinafter
referred to as the prisoner was convicted of the crime of
Violation of Uniform State Narcotic Drug Act at the City of
Hartford, on or about the 14th day of March, 1967 in viola-
tion of Sections 19-246 and 19-265 of the 1965 Supplement to
the General Statutes as charged in first count; Larceny at
the City of Hartford, on or about the 14th day of March, 1967,
- | |
in violation of Section 53-63 of the 1965 Supplement to the
General Statutes, end Section 53-65 of the Generai Statutes, i
Revision of 1958, as charged in second count and was by said :
court on the 16th day of June, 1967 sentenced to imprison-
ment in the Connecticut State Priscn, for the term of not less
than five (5) years nor more than ten (10) years on first
count and two (2) years on second count, and to stand com-
mitted in the said State Prison until said sentence be fully
complied with, as appears of record; whereof execution re-
mains to be done.
These Are Therefore By Authority Of The State Of
Connecticut, to command you the Sheriff of the County of
Hartfora, or your deputy, that you deliver the said prisoner
Charles O. Dukes to the Warden of said State Prison, or his
agent, at said State Prison, and to leave with him this mitti-
mus; and you, the same Warden of said State Prison, are like-
wise hereby commanded to receive the said prisoner Charles
O. Dukes and him safely keep until said sentence be fully
complied with or until he be discharged by due course of law.
Dated at Hartford, this 16th day of June, 1967.
By order of court
PAUL LEVINE
Assistant Clerk
JUDGMENT
STATE OF CONNECTICUT
No. 2°358
STATE SUPERIOR COURT
V. HARTFORD COUNTY
CHARLES O. DUKES JUNE 16, 1967
HON. RAYMOND J. DEVLIN, JUDGE
John D. LaBelle, State’s Attorney for the County of
Hartford accuses Charles O. Dukes of Hartford of Violation
3 a
8
on or about March 14, 1967 in violation of Sections 19-246 and
19-265 of the 1£35 Supplement to the general statutes as
charged in the information and the said attorney further ac-
cuses the said Charles O. Dukes of Larceny (value in excess
of $250.00 but less than-$2,000.00) at the City of Hartford on
or about March 14, 1967 in Violation of Section 53-63 of the
1965 Supplement to the general statutes, and Section 53-65 of
the general statutes, Revision of 1958 as charged in the sec-
ond count of the amendment to information as on file will
appear.
To both counts of said information on May 16, 1967 the
said Charles O. Dukes pleaded and said that he was guilty.
Whereupon this court doth accordingly adjudge the said
Charles O. Dukes guilty as charged in both counts of said in-
formation and that he be imprisoned in the Connecticut State
Prison for not less than five (5) years and not more than ten
(10) years on the first count and two (2) years on the second
count.
DOMINIC A. DiCORLETO
Clerk
COURT PROCEEDINGS, MAY 9, 1967
Case No. 28358
STATE SUPERIOR COURT
V. HARTFORD COUNTY
CHARLES O. DUKES MAY 9th, 1967.
BEFORE HONORABLE SIDNEY A. JOHNSON, JUDGE
John D. LaBelle, Esq. | Peter J. Zaccagnino, Jr., Esq.
For the State For the Accused
MR. LABELLE: This is a matter for trial, Your Honor.
May a jury panel of thirty-five be ordered? Counsel wishes
_—_
to discuss some matter with me, I don’t know what it is, but
while recess is ordered may a jury panel be called.
9
THE COURT: Do you want them called down imme-
diately? t
MR. LABELLE: If they get one, as soon as we get one ;
we'll know what we are going to do. 4
THE COURT: Very well, panel of thirty-five may’ be ;
requested. There will be a short recess. :
Later :. . 3
MR. ZACCAGNINO: If it please the Court, Your Honor, 3
on this matter that is now pending before the Court, State of e
Connecticut versus Charles Dukes, between last night and [
this morning, Your Honor, we have had a number of conver- e
sations with Mr. Dukes, and I think that I am going to peti- E
tion the Court to formally withdraw. from this case because t
there happens to be a slight conflict between my client and
myself, and it’s not financial, Your Honor, it is one basically
that goes to the heart of my representing him, and I think,
Your Honor, in fairness to the defendant, he hasn’t been put :
to plea as yet, and this case has just been bound over three ;
or four weeks ago, it’s a very recent arrest, that in good con-
science and in order for this man which is a very serious
charge, Your Honor, as Your Honor knows, that I think —
he tells me this morning that he wants to represent himself
and he so wants to represent that to the Court, and in the
recess I told him the foolishness of his ways, to try a jury
case by himself.
TOE BIER GPE TY
However, I don’t know what his opinion is right now, but
he also tells me he may get additional counsel. I don’t know
what the Court’s position is on that. I’m going to ask Your
Honor, if Your Honor wants me to put it in writing I will, to
withdraw. ‘ine cefendant is here, and, Your Honor, he has
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full knowledge of this and wants to represent to the Court
that is so. We do have this difference that may go to the heart
of my representing him.
I know Mr. LaBelle is opposing my withdrawing at this
date, but as I say to the Court the man has not even been put
to plea as yet and it seems to me that the motion should be
granted because of the very basic position of an advocate in
behalf of a defendant who he must believe in the cause in
which he is speaking for in many ways and there ae some
things here that we have a disagreement on with respect to
the matter which may in some way prejudice the defendant.
I just think he should have at least — the trial should be
conducted in such a manner where I don’t feel as his attorney
perhaps something he ‘s doing is wrong. That is the whole
issue, if Your Honor please. Not wrong with respect to the
arrest, I’m not talking about that, but aaa the trial, the
conduct of same.
MR. LABELLE: Well, if other counsel appears, Your
Honor, ready to go to trial today, I have no objection to the
withdrawal. Until other counsel appears it seems to me there
isn’t any basis to withdraw. We are ready to try the case
today.
THE COURT: Are there some preliminary motions here?
MR. ZACCAGNINO: Yes; Your Honor, there are some
preliminary motions. I ghint- t’'d like to at least argue those
first. ~
THE COURT: Do you want to argue those before he is
put to plea? .
MR. ZACCAGNINO: Yes, Your Honor. The clerk in the
center courtroom has the motions. Do you have copies?
ASSISTANT CLERK EDWARD O’BRIEN: Yes.
11
MR. ZACCAGNINO: Your Honor, the first motion — do
you have the motions?
MR. O’BRIEN: I have the motions, not the information.
MR. ZACCAGNINO: We are only talking about the mo-
tions right now. Would you give the Court the motions? John
hasn’t even filed the information yet.
The first motion I’d like to argue is the motion to dismiss
or quash the information because of the fact that this man
was not indicted by the Grand Jury in accordance with United
States Constitution Fifth Amendment in particular and the
Fourteenth. I realize, Your Honor, that the State Supreme
Court has ruled that it is not necessary to indict in this State.
However, Your Honor, in view of the case in Ohio and Hogan
versus Molloy, Molloy versus Hogan, rather, that if the
Supreme Court of the United States gets this matter they
may change their opinion. I know Your Honor can’t sit as an
appeliate court and have to overrule this motion and I don’t
think argument is necessary. I know Your Honor can’t grant
it. However; we want the motion to stand as part of his file.
THE COURT: Do you wish to be heard on the motion to
quash?
MR. LABELLE: Of course it’s been decided in our State,
Your. Honor, in Connecticut 153451 in State versus Jones,
and the United States Supreme Court has already decided it
in Beck and Washington, 369 US 541, so that I see no basis
for that motion.
THE COURT: The motion to quash is denied”
MR. ZACCAGNINO: If Your Honor pleases, with re-
spect to the second motion that I have in the file, the second
motion is directed at the — is a motion to suppress what was
taken in the place known as 35 Barbour Street, because it is
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our claim, Your Honor, this is strictly a question of law, I
don’t think it needs any evidence on it. The only matter we
are directing it at, by error we listed five or six reasons, the
only issue here is whether or not the Court had probable
cause to issue the search warrant in the original instance. It’s
our claim on that, and Your Honor will have to peruse the.
search warrant, it’s our claim that all the information con-
tained therein, is based on hearsay evidence, and it’s our claim,
Your Honor, that if that is the situation that the search war-
rant itself is bad because there should be some corroborating
factors other than as set out in US versus Jones. There are
some cases, Your Honor, that have come down that have
been — where they have found the search warrant to be
good where they all contain hearsay evidence but those are
particular cases in which there were other corroborating
factors.
If Your Honor goes through the search warrant you will
notice that it’s all from an undercover agent who told them
certain things, and the nolice claim that they saw known nar-
cotic addicts going into this particular address. I claim all of
that is based upon hearsay and the warrant itself on its face is
defective, and it’s our claim that in the rules set out in US
versus Jones, and I don’t have the citation here, I think I can
get it for you before the morning is over, that the search war-
rant is bad in that respect alone.
MR. LABELLE: I have a photocopy of it, Your Honor,
I’il give it to Your Honor now if there is no objection.
MR. ZACCAGNINO: There is no objection to the photo-
static copy of the original going to Your Honor for perusal on
the points which I mentioned.
MR. LABELLE: I will locate the original.
THE COURT: Well, I examined the affidavit and applica-
tion and this search and seizure warrant, and it is found that
13
there is sufficient information in the affidavit and applica-
tion to establish probable cause that the property should be
seized so the motion to suppress is denied.
MR. ZACCAGNINO: Your Honor, there is a third re-
quest in the file for a bill of particulars, and if you will notice
that there’s only four basic questions, four things. Your Honor
doesn’t even have an information filed with the Court as yet
so I suspect that —
THE COURT: I don’t have the information.
MR. ZACCAGNINO: It hasn’t been filed, I don’t think.
Have you filed it yet? Are you going to answer these questions
or do you oppose the questions?
MR. LABEI.LE: If Your Honor please, the matters set
forth in the bill of particulars are known to the defendant be-
cause he had a hearing in probable cause and all these matters
were testified to in the hearing in probable cause transcript
which was available to the defendant so that he is asking for
something here which he already knows the answer to he-
cause he has had that hearing. He knows where the articles
were found and he knows who had them. He knows all of the
circumstances because he had the opportunity even to cross-
examine the officers, so there isn’t anything in this here that
he is entitled to that he doesn’t already know.
THE COURT: Have vou seen it? Were you at the hear-
ing?
MR. ZACCAGNINO: I had ordered it, Your Honor, and I
understand from talking to my office they just delivered it to
my office this morning. I haven’t had a chance to look at it,
but is there possession, control, sale and dispensing? I sat
through the hearing in probable cause. If there is anything
in Mr. LaBelle’s file that shows sale or dispensin,; — the only
14
theory the State is going to have to proceed on is that he |
was in the same area as the drugs produced under his pos-
session or control. He doesn’t have any evidence I know of
that came out of sale and dispensing. If they are alleging that
in the information we are entitled to know so that we can
prepare a defense for this man or he can defend himself
whether or not they are actually trying to prove a sale. If
they are he should have knowledge of that so he can find out
the information concerning that to prepare himself a defense,
I suspect.
THE COURT: Anything in the hearing on probable
cause to show a sale?
MR. LABELLE: Not in the hearing and probable cause,
Your Honor. However, this is the language of the statute and
under the language of the statute if the sale or the dispensing
can be proven we will be entitled to prove it, and with respect
to the hearing in probable cause my understanding is that
there was no testimony in that hearing with respect to a
particular sale. ,
THE COURT: Well, do you intend to prove a sale, Mr.
Attorney?
MR. LABELLE: Well, I don’t want to be limited in my
proof, Your Honor, and — may I have just a moment?
MR. ZACCAGNINO: Your Honor, in addition to that,
while Mr. LaBeile is discussing this, for Your Honor’s
thoughts on it, under the State Constitution, the Federal
Constitution, the defendant is entitled to know with particu-
larity the specific charge against him. He knows that, but
also, Your Honor, that the reason for the bill of particulars .
is so that it can aid him in his defense with respect to this
particular charge. Now to go back to 111 Connecticut, Grasso
versus Frassinelli, there is a case there, Your Honor, where
15 .
I think he was charged with something or something else,
which involved really two parts of the same statute, and the
Court struck that down because they said, well, you know,
he’s got to know specifically. I don’t say this falls within this
same particular case in 111 Connecticut, but it does Your
Honor involve the charging with possession in effect and/or
sale. .
Now, Your Honor, he knows about the possession be-
cause he is fully apprised. I am prepared to go to trial on
possession or control but if there is a sale involved I think
he is entitled to know that to prepare his defense and get
witnesses. This is one of the things which I say also, Your
Honor, that is involved because of the time element invoived
here. He’s got to know these things. .
MR. LABELLE: So far as the State is concerned, Your
Honor, we are-prepared to prove a sale. I do not wish to dis-
close who the sale was made to because I have reason to be-
lieve that the witness would be tampered with. I don’t want
to take any risk with respect to the witness.
MR. ZACCAGNINO: I don’t know how the defense can
overcome a statement like that, Your Honor, but of course
you can say that about any witness, but I think he probably
— I am saying in his behalf he probably would have to know
‘the date, the specific date and the place and so forth if they
really are intending the sale. That is why we ask to whom.
If they substitute the date, time and place —
MR. LABELLE: I’ll give him the date, time and place.
MR. ZACCAGNINO: It might satisfy the defendant in his
defense, Your Honor.
MR. LABELLE: I do not see any reason at this point why
the person who made the purchase has to be disclosed.
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16
THE COURT: I won’t have that disclosed.
MR. ZACCAGNINO: I’m not particularly claiming that
but we have to know the general area.
THE COURT: The date, time and place.
MR. LABELLE: I'll give him the date, time and place.
MR. ZACCAGNINO: Okay. If he submits that, Your
Honor, I have no objection, and the rest of the things, Your
Honor, we're really not — I think that they are not claiming
dispensing. You’re not claiming dispensing?
MR. LABELLE: Only insofar as dispensing applies to
the sale, Your Honor.
MR. ZACCAGNINO: All right. If that is the limitation
of it I think we’ve got enough on the bill of particulars to go
forth.
Now the next thing is, Your Honor, that the defendant
now wishes to address the Court, Your Honor, on the matter
which I spoke to Your Honor about, a i I would just like
to say to this Court —
THE COURT: No, he hasn’t been put to plea yet, Your
Honor, and that is — the issue here is about my motion to
withdraw, that I understand Mr. LaBelle’s position is the
reason for his particular position but I also understand, Your
Honor, this detendant’s position because it’s an unusual situa-
tion, Your Honor, on a case that is so new that the same day
of plea, that you go to trial. I agree Mr. LaBelle called me on
Monday. He sai‘ he called me earlier, I’m sure he did. If he
said he called me he must have called my office. I wasn’t
there. And he told me to be ready but it’s an unusual circum-
stance when they tell me to be ready and the man hasn’t pled.
I took it he’s got to be ready to plead on Tuesday morning. I
17
knew it was going to be a trial and so advised the defendant.
I’ve been waiting to address the Court because the Court has
been busy on other matters. He tells me he either wants to
represent himself or get counsel outside of the county that he
can have more confidence in for some reason or other. Now I
don’t know what the reason is but he would like to address
the Court before he is put to plea so he has the right to coun-
sel. If he is not going to have that right of other counsel to z
get somebody to represent himseif then I think, Your Honor,
whatever he wants to say I’d like to have him address the
Court because if Your Honor grants my motion he’ll be with-
out counsel. for the moment. Do you want to address the
Court?
SENATE NOLS SPOOL TRY
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THE ACCUSED: Judge, Your Honor, I’d sike io ask the
Court —
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THE COURT: I can’t hear you.
THE ACCUSED: I’d like to ask the Court several ques-
tions.
THE COURT: I still ean’t hear you.
MR. ZACCAGNINO: Speak up.
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THE ACCUSED: Id like to ask the Court several ques-
tions to be permitted. Number one, I would like to ask for the
prosecutor of this particular case to withdraw from the case
because if I try the case I intend to cross-examine him con-
cerning this case and I’m afraid it’s going to cause a conflict
of interest. I don’t think it would be fair to the accused.
MR. LABELLE: If Your Honor please, this man is not
going to run this court as long as I have anything to say to the
Court about it. He knows that this case is ready to go to trial
and counsel also knew this as Jong ago as at least a week
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18
because his office was notified by my office on several ccca-
sions during the middle of last week, Wednesday and Thurs-
day.
Now if this man wants to try his own case let him try
his own case and let counsel sit with him and advise him if he
wants to try his own case. And if he has other counsel he
wants to get in place of Mr. Zaccagnino then Mr. Zaccagnino
can leave but as far as the State is concerned we are ready to
go to trial and this story about him going to cross-examine
me in this case is news to me. I don’t intend to be a witness
so I don’t think he’s going to cross-examine me.
THE COURT: Well, we’ll take that matter up if and when
we try the case. What is your next point?
THE ACCUSED: Number two, Your Honor, with local
counsel I am afraid, well, I know there is going to be resent-
ment. I have reasons to believe that through conversations,
and I’d like the opportunity to hire in attorney from another
state that don’t have no knowledge of the case, of this specific
case. Otherwise I feel as though that is the reason that I in-
tend to try my own case in the event that the Court doesn’t
grant it. .
THE COURT: You wish to try the case yourself is that it?
THE ACCUSED: If the Court doesn’t grant me opportu-
nity to hire an attorney out of the State, sir, because I don’t
want no resentment upon any attorneys, local attorneys.
THE COURT: Well, at this time it’s rather late to bring
that in. The State says it’s ready for trial. You were notified
for trial so we will proceed with the trial. Whether or not I
will allow counsel to withdraw is another thing.
THE ACCUSED: Yes, sir. I haven’t even been put to plea
on this.
_—_
19
THE COURT: Well, you’ll be put to plea if we go for-
ward.
THE ACCUSED: Well, that’s all at the present time.
Thank you.
\
MR. ZACCAGNINO: If Your Honor pleases, I just might
like to say one thing in conclusion. I think this man has other
counsel besides myself involved in another matter, and I
realize that the court is being tied up, but I think in view of
the seriousness of the matter, in view of my position, I was
going to ask for a continuance ‘ill tomorrow morning and two
things may occur.
One, it may be that my position, I might be able to con-
vince my client of. If I can’t at least he will have overnight
to get counsel. I think it’s not an ureasonable delay of the
court because tie issues invoived are far more serious than
any inconvenience in this instance to the court. I realize this
is inconvenient. I realize Mr. LaBelle told me this but be-
tween last night and this :norning a great change of position
has taken place between my client and I in the matter so in
view of that this is something we didn’t plan to delay the
court, it just came about and I know one thing being part of
the case tiiat I can’t see any justification, Your Honor, for
not allowing that time till tomorrow morning because it may
be if it doesn’t develop like I would like it to develop at least
this man will have a chance to go over this case, read the
transcript with me, I’ll advise him, get other counsel here or
do something to help him. I don’t hold any plea for delay of
the court. I sat here for three days waiting for the court to
be open to get to this point. I’ve been here Tuesday, Wednes-
day and Thursday. I didn’t do anything in my office a‘i three
days. I say to Your Honor I have been here. I don’t think I
have unduly delayed the court and I don’t think this man
has. I think we have come now to the position where Your
Honor has to decide that with respect to this because I don’t
saa
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| 2 RCE RINT Pi RRC RN RN
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26
feel Your Honor that I can do this man justice in this par-
ticular issue and that doesn’t mean that he can’t get other
counsel to feel differently than 1 do. I think he should
have at least tomorrow morning. I don’t think that is too
much delay. I don’t see the great pressure of one day when
a man hasn’t been put to plea. It’s the f: st case I have had
in this court where the man has been pui to trial on the same
day of plea. I do think it wouldn’t inconvenience the court.
I feel very uneasy about the situation I am presenting to
the Court, Your Honor, and I don’t know that it might not
resolve itself. I don’t think 1 can resolve it but I do feel he
should have this overnight. If he can’t get other counsel I’ll
assist him in trying to get him other counsel because I don’t
think an man can try a case of this nature by himself.
MR. LABELLE: Of course that is a matter of the Court’s
discretion, Your Honor. We are prepared to go forward today
and the Court might wish to consider in deciding this matter
whether or not a jury if it is going to be a jury trial could
be picked and testimony started tomorrow.
THE COURT: Well, I think what we will do is present
him for plea, give him the opportunity, then we won’t pre-
sent any evidence today but we'll pick a jury today and I will
hold you in attendance, counsel.
MR. ZACCAGNINO: If Your Honor pleases, is Your
Honor instructing me that —
THE COURT: I’m not allowing you to withdraw at this
time.
MR. ZACCAGNINO: At this time I don’t know whether,
Your Honor, it meets with this man’s approval, because it
may, Your Honor —
THE COURT: He says he wants to defend himself.
21
MR. ZACCAGNINO: Yes, Your Honor. I think he does
want to defend himself as opposed to me representing him in
the matter. I don’t know. If it meets with his «pproval I sup-
pose he has a right to defend himself.
THE COURT: He’ll be entitled to ask questions of the
jurors, of the panel, if he wishes, and then we will go to trial
on the factual issues tomorrow. Would you like a short recess?
MR. ZACCAGNINO: Yes, Your Honor. Excuse me. I
think it might be helpful.
(Short recess. )
Later:
THE COURT: First, do you want to present the person
for plea, counsel?
MR. LABELLE: Yes. May he be put to plea, Your Honor.
THE COURT: Put him to plea and election.
MR. ZACCAGNINO: We'll waive the reading of the in-
formation.
MR. O’BRIEN: Charles O. Dukes. how old are you?
THE ACCUSED: Thirty-two years old.
MR. O’BRIEN: Charles O. Dukes, the State of Connect-
icut charges you with violation of the Uniform State Narcotic
Drug Act. How do you plead?
THE ACCUSED: Not guilty.
MR. O’BRIEN: Do you elect a trial by Court or by jury?
THE ACCUSED: By jury of twelve.
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THE COURT: Very well. Now you have a statement to
make?
MR. ZACCAGNINO: Yes, if Your Honor pleases. I am
going to ask the Court to continue this matter until tomorrow
morning and at that time, Your Honor, give Dukes a chance
to get other counsel or, as he originally told me, that he
wants to represent himse‘’* It gives him the right tc either
represent himself or have -ner counsel. In the meantime I’il
have a conversation with him advising him of the difficulties
so he will understand what he is faced with if he represents
himself. I understand he has that right if he so desires and J
have told Mr. LaBelle the case is going to go forward and
he understands it. Do you understand :t, Dukes?
THE ACCUSED: Yes.
MR. ZACCAGNINO: So I’d ask for tomorrow morning
to have a further chance to talk with Dukes.
MR. LABELLE: May I clear up one matter on the rec-
ord, Your Honor? We filed a photostatic copy of the search,
warrant. { understand counsel has no objection to substituting
the original when it gets here.
MR. ZACCAGNINO: No, I! have no objection to that,
Your Honor.
MR. LABELLE: I take it — the original, I understand,
was sent to Middletown by mistake, to the Circuit Court’s
filing office, but I will have it here tomorrow.
THE COURT: Very well.
MR. LAPELLE: And then as I understand it on the mo-
tions I am to give to the answer to the motion for the bill of
particulars the date, time and place of the alleged sale?
MR. ZACCAGNINO: Ves, that’s right.
pede
=
THE COURT: Very well. Well then it’s perfectly under-
stood by you, Mr. Dukes, that you will proceed to trial to-
morrow morning?
THE ACCUSED: Yes, sir.
THE COURT: Very well. Then we’ll continue the case
till tomorrow morning and tomorrow morning will the clerk
see to it that we have a panel.
MR. O’BRIEN: Yes, Your Honor.
THE COURT: Now then we will have a short recess.
COURT PROGEEDINGS, MAY 16, 1967
CASE NO. 28358
STATE SUPERIOR COURT
V. HARTFORD COUNTY
CHARLES O. DUKES MAY 16, 1967
BEFORE HONORABLE SIDNEY A. JOHNSON, JUDGE
JOHN D. LABELLE, ESQ. ROBERT C. DELANEY, ESQ.
For The State For the Accused
MR. LABELLE: I have been informed that there has
been a request to change his plea to the information on file.
At the time of the bindover, Your Honor, in this case, there
was another count which was not put in the original informa-
tion because it was a separate offense. Counsel at that time
had agreed that that count would be held in abeyance until
such time as this ceunt in the original information was dis-
posed of. In view of the request to change a plea here I
5
j
3
24
would like to file an amendment to the information, Your
Honor, to ada the second count back to it so that the informa-
tion will be the original count plus this second count.
THE COURT: Is that understood?
MR. DELANEY: That is understood, Your Honor. We
agree with that.
THE COURT: Very well. Permission is so granted. Then
I understand Mr. Dukes is going to change his plea, is that it?
MR. LABELLE: Yes, Your Honor, and I would like to ask
if inquiry would be made as to change of plea and that he be
put to plea on both the original information again and this
amendment also. Excuse me, Your Honor. The record also
ought to appear that Mr. Delaney is here with him today
and he is in the office of Mr. Zaccagnino. I think the Court
might inquire with respect to the representation since there
had been some indication that counsel had asked to withdraw
the other day.
THE COURT: Well now, Mr. Dukes, I want to be sure
that everything is in order here. I was present the other day,
of course, when you were presented and the problem came
up about an attorney. Now I want, now Mr. Delaney is here,
are you fully satisfied with the services he is rendering you,
Mr. Dukes?
THE ACCUSED: Yes, sir.
THE COURT: You are. And now you know of course,
Mr. Dukes, that — you know of course that the State of
Connecticut has the burden of proving you guilty on the
charge and you are free to go to trial but you still wish to
change your plea, is that correct?
THE ACCUSED: Yes, sir.
25
THE COURT: And do you do this of your own free will,
Mr. Dukes?
THE ACCUSED: Yes, sir.
THE COURT: And you know the probable consequences
of it? 4
THE ACCUSED: Yes, sir.
THE COURT: Very well, and no one has induced you to
do this, influenced you one way or the other? You are doing
this of your own free will?
THe ACCUSED: Yes.
THE COURT: Very well then. We wi!l accept the change
of plea.
ASSISTANT CLERK JOEL ELLIS: Mr. Dukes, huw old
are you?
THE ACCUSED: Thirty-two years oid.
MR. ELLIS: Do you waive reading of the information?
MR. DELANEY: We will waive the reading.
MR. ELLIS: To the charge of violation of Uniform State
Narcotic Drug Act what is your plea?
MR. DUKES: Guilty, sir.
MR. LABELLE: May we have the plea to the amend-
ment also?
MR. ELLIS: Do you waive reading of the amended —
MR. DELANEY: Waive reading of the amended in-
formation. °
ne REE oe Pa ae eR
26
MR. ELLIS: In the amended information you are charged
in the second count with larceny. What is your plea to that
count?
THE ACCUSED: Guilty, sir.
THE COURT: Both pleas are accepted.
MR. LABELLE: May these matters be referred to the
probation department for pre-sentence report, Your Honor.
THE COURT: June 2nd.
MR. LABELLE: And may they be assigned disposition?
THE COURT: They’ve got quite a few, I understand, for
the 26th.
MR. LABELLE: May it be June 2nd.
THE COURT: June 2nd, and continued under the same
bond.
MR. LABELLE: The bond inthe case is twenty thousand
dollars.
THE COURT: Very well. Pre-sentence investigation is
ordered, sentencing for June 2nd on the same bond.
MR. DELANEY: Thank you, Your Honor.
-_
COURT PROCEEDINGS, JUNE 2, 1967
27
No. 28356
STATE SUPERIOR COURT
V. HARTFORD COUNTY
CHARLES DUKES JUNE 2, 1967
BEFORE HONORABLE RAYMOND J. DEVLIN, JUDGE
GEORGE A. SILVESTER, ESQ.
FOR THE STATE
PETER J. ZACCAGNINO, ESQ.
FOR THE ACCUSED
MR. ZACCAGNINO: If Your Honor pleases, this was
set down in the other courtroom before Judge Johnson
this morning, and Mr. Capshaw is still working on the report,
and they tell me, I find through Dukes they need another
two weeks in which to finish it. Mr. LaBelle asked? me to
have the case called here because Judge Johnson is handling
divorce matters.
I would also say that all the matters we have asked for
consolidation haven’t come in, so we’d need a continuance
for that purpose anyway.
MR. SILVESTER: June 16th, if Your Honor pleases,
under the same bond?
THE COURT: June 16th. Same bond.
MR. ZACCAGNINO: Thank you, Your Honor.
PU Pils eae Rh ER nts
28
COURT PROCEEDINGS, JUNE 16, 1967
No. 28358
STATE SUPERIOR COURT
V. HARTFORD COUNTY
CHARLES DUKES JUNE 16, 1967
BEFORE HONORABLE RAYMOND J. DEVLIN, JUDGE
JOAN D. LABELLE, ESQ.
ATTORNEY FOR THE STATE
PETER ZACCAGNINO, ESQ.
ATTORNEY FOR THE ACCUSED
MR. LABELLE: 28358, Charles Dukes.
MR. ZACCAGNINO: If Your Honor please, prior to
this man being sentenced in this particular matter, I discussed
this momentarily with Mr. LaBelle. Mr. Dukes has advised
me that he has other counsel from New Haven: Mr. Fazzano,
who is representing him, and I don’t intend in any way to
delay the Court. I thought, if he has other counsel, I have no
no objection to getting out. In fact, I do not want to
represent Dukes if he doesn’t have any confidence in me.
But Fazzano was tied up, Attorney Fazzano was tied up
this morning and is requesting a continuance for a week,
and I told Mr. Dukes the most I would do for him would
be to put the motion to the Court and suggest it be con-
tinued until Tuesday. I think this, Your Honor, that if he
has other counsel and because of the serious nature of the
charges, that he should have counsel of his own choosing.
If he has no confidence in me, I don’t resent it personally.
I understand his position. But I do feel that this is a very
serious situation, and Mr. LaBelle wants to pr ‘ceed this
morning with sentencing. I don’t quarrel with Mc. Labelle
on that point. I want to state my position to the Court so that
Your Honor will know what his position is. He told me this
morning that he felt that he didn’t have confidence in my
29
handling the matter and he wanted Mr. Fazzano to come in.
If that is the situation, Your Honor, as I say, I don’t have
any personal feeling on it, but I suppose there can be no —
you know, I can’t represent a man that — or if he doesn’t
have confidence in me is what I want to say. If he feels he
wants Attorney Fazzano, I would like to state to the Court I
have no objection; and as a matter of fact, I welcome it. I
don’t want to be dilatory because this man comes up this
morning and he tells me he has another lawyer, but I feel
it is so serious I don’t know what to tell Your Honor except
to tell Your Honor that I should be relieved as counsel when
Mr. Fazzano —
THE COURT: What could other counsel do that you
couldn’t do?
MR. ZACCAGNINO: I don’t know. Your Honor; but I
do say this: That it’s become a situation, Your Honor, that I
can’t quite understand either, and he feels, and I stated his
position to Your Honor, so that Your Honor knows. And if he
has anything he wants to say to Your Honor, I suppose he
ought to say it to you. I have said what I have goi to say.
THE COURT: What do you want to say, Dukes?
THE ACCUSED: Well, I was —
THE COURT: I can’t hear you. Speak up.
THE ACCUSED: I was most interested in justice in this
case, and I spoke to maybe about twenty attorneys from
Hartford, and nobody seemed to want to take the case, repre-
sent me, and it would be more justice to get more justice by
hiring an attorney out of town, which I brought this out
before for certain reasons.
THE COURT: Well, you have a good attorney now.
What is the ‘objection to that?
‘
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Sich RL Pe Ri Sle A
30
THE ACCUSED: Well, I would rather have an attorney
out of town for certain reasons of the case. Your Honor, sir —
THE COURT: Well, I think we ought to go on with it
today.
MR. LABELLE: There has been no appearance.
THE COURT: No appearance been filed.
MR. LABELLE: It is my understanding from Mr.
Fazzano, who called my office this morning, called one of
the detectives, that he was just contacted last night. He
doesn’t know Dukes or anything about the cases. Now, no
appearance has been entered. It is simply a disposition. It
isn’t a trial, and I don’t see there is any reason for delaying
if further. He’s had plenty of opportunity when he was put
to plea in this matter, and the court specifically asked him
before he accepted the plea whether or not he was satisfied
with his counsel. And at that time the plea was accepted,
he indicated to the court that he was. I ask that the sentence
be imposed in 28358.
THE COURT: The sentence will be imposed.
MR. LABELLE: This matter, there is two counts in
this information. One is, the first count is a violation of the
Narcotics Act, 19-265; and the second count is larcenv or
receiving stolen goods. |
Before he is sentenced, Your Honor, he’d been asked to
take some cases from Fairfield County and some other
counties, I understand now that he does not want to con-
solidate those cases, so that as long as that is clear in the
record.
THE COURT: There are other cases from other
counties?
a
31
MR. LABELLE: There were some cases from other
counties, and I understand he doesn’t want to consolidate
them now.
MR. ZACCAGNINO: If Your Honor please, he wishes
to address the Court, and he told me the purpose of it. I
would rather have him address the Court on this matter
rather than me, if Your Honor pleases.
THE COURT: You mean with respect to the other
counts in other counties?
MR. ZACCAGNINO: This particular count pending be-
fore Your Honor.
THE COURT: I will give him a chance to talk.
MR. ZACCAGNINO: He tells me now, Your Honor,
he would like to change his plea, and I thought Your Honor
would like to know that. I don’t suggest that to the Court.
He suggests it, and that is the reason he hired new counsel,
and this comes as a surprise to me. This is the first I heard
of it, but I had a suspicion, Your Honor, that this may take
place because of the problem when he entered the plea. I was
maybe a little forceful. However, Your Honor, it was all
discussed with him, and he does feel, Your Honor, that the
reason he went out of the county was because no lawyer
would properly represent him in this matter in this county.
I don’t believe that, because I put a lot of hours in this case.
However, he does tell Your Honor now that he does want to
change his plea, and he better say it himself, because Your
Honor better talk to him about it.
THE COURT: What do you want to say?
THE ACCUSED: Yes, sir; I would like to change my
plea, Your Honor. At the time I pleaded, I just came out of
the hospital, I think it was a day, and I was unconscious for
aa a nn LA ee eye ne es
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Mi, tari ON oy
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32
three days, and I didn’t realize at the time actually what I
was pleading to. And since then, I am a patient, taking
a mental examination at the Hartford Institute of Living and
also Dr. Harold, a heart specialist, and she said that, the
psychiatrist said that I needed psychiatry treatments.
THE COURT: I will deny the moticn.
MR. LABELLE: Your Honor has his record here, and
I would simply say he’s, so far as I am aware of, been in-
volved in criminal activities in this county for a substantial
period of time; and on the case, I would suggest by way of
disposition on the first count not less -han five no more than
ten years in the State’s Prison. On tk? second count, two
years, making an effective sentence of not less than five no
more than twelve years.
THE COURT: All right.
MR. ZACCAGNINO: Your honor, it puts me -t a slight -
disadvantage, but I will tell this to the Court: That at the
time that he changed his plea, Your Honor, that some of
these cases, Your Honor, were very tenuous at best, and
it is my understanding that all of the matters were going
to be disposed of on the same basis, consecutive or concurrent
sentences would be imposed. I think this, Your Honor, that
to sentence this man on one of these counts and for all of
them, the reason I induced him, I didn’t induce him, I dis-
cussed with him his best possible interest to change his
plea because he had so many matters pending. Now, pre-
ceeding on two matters, and all these matters are pending,
I feel that if Your Honor does accept the recommendations,
which is the five to ten on the sentence, the minimum or the
maximum or the narcotics case, he will have great additional
time, and I don’t know what to tell Your Honor other tha:
the fact I wish Your Honor would make a note for the record,
in the event I can talk to Dukes, that Your Honor does have
a
33
knowledge of these other situations, these other crimes which
are of a similar nature and of a weaker nature, and I would
say to Your Honor the only thing in defense of Dukes, I
realize his record is bad and his activities have been bad;
however, when he «hanged his plea and entered his plea of
guilty, he saved the State considerable amount of cost and
expense and time, because I think about five or six cases
pending against him, they oniy had one or two cases that
were of a strong nature, and I do think, Your Honor, that I
feel having been his counsel, that I should make this fact
known to Your Honor that it was a matter that Your Honor
would normally, under normal circumstances, in a situation
like this, enter concurrent sentences, if, in fact, it was so
recommended by the State’s Attorney; but since he doesn’t
want to plea to these other matters, I would like to mace
that note for the record, because I feel at some later date
he may have to come back to this court and see Your Honor
or see another judge on these other matters now pending
before it.
THE COURT: What do you want to say, Dukes?
THE ACCUSED: I am rather flabbergasted teally, be-
cause I didn’t expect this this morning. It just puzzles me.
I am not guilty of the charges. I am not guilty.
THE COURT: There are matters in this probation re-
port that are very illuminating: this man driving around in
very expensive -cars, being hospitalized on a couple of oc-
casions, the Welfare Department picking up a bill for seven-
teen hundred and ninety-four on one occasion, twenty-four
hundred and five dollars on another, it doesn’t smell too good.
On the first count, the sentence will be not less than
five no more than ten State’s Prison. The second count, the
sentence will be two years.
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34
Memorandum of Decision in Habeas Corpus
The petioner for a writ of Habeas Corpus bases his action
on: (1) that a p’ea of guilty is subject to reveiw on Habeas
Corpus to determine its voluntariness; (2) that his plea of
guilty was involuntary, because of ineffective assistance of
counsel; (3) that his plea of guilty was involuntary because
of inadequate time to obtain counsel of his own choosing or
to prepare his dcfense; (4) that his plea was involuntary be-
cause of physical and mental disturbances at the time of plea;
and (5) that the Court did not establish the voiuntariness;
thereof. This petitioner’s case has been before the Supreme
Court of Connecticut, State of Conn. v. Dukes, 157 Conn. 498,
and tn some extent the issues raised herein have been
answered adversely to his present claims.
The last issue that the Court did not determine the volun-
tariness of the plea has been determined in State v. Dukes,
supra 506 where the court held “. . . we find no error in the
rulings of the Court or in the exercise of the discretion with
which it is vested.” Prior to that quoted statement the Court
had gone at length into the same facts presented at the
hearing on this petition and held the inquiry adequate. The
petitioner does present a new factor, i.e., his health, physical
and mental, at the time of the plea. His present testimony of
his physical and mental well-being is less than credible. His
answers to the court’s questions at that time, his present
complete restatement of his ten minute discussion with
Attorney Delaney, his own statement that he answered the
court’s questions about which Attorney Delaney cautioned
him, do not indicate physical or mental incompetence. The
petitioner relies to a great extent on Boykin v. Alabama, 23 L.
Ed. 2d 274 for the requirement of court ascertainment of a
plea of guilty. In that case the court made no inquiry of the
defendant on a plea of guilty and thereafter the defendant
received the death penalty for the crimes of common law
35
robbery. No evidence has been demonstrated to this court
that the guilty plea was accepted without an affirmative
showing that is was intelligently and voluntarily made.
Boykin, v. Alabama, supra 279. It is interesting to note that
on that date, in answer to specific inquiry by the court he
indicated his satisfaction with the attorney then representing
him.
The petitioner next raises the issue that his counsel had
a conflict of interest that prevented his effective assistance
of the plaintiff. On June 2, 1967 two defendants in another
case, Andrea Sejerman and Sandra Baker, were also repre-
sented by the plaintiff’s counsel on a charge of conspiracy io
obtain money by false pretense before the same judge who
sentenced the plaintiff. On that date counsel stated that the
two women had been led astray by the plaintiff and that their
cooperation led to the plaintiff’s plea of guilty and his sub-
sequent removal from scciety. The plaintiff was sentenced two
weeks later. Significant on this issue are the facts that the
plaintiff knew that his counsel represented the two women in
their case which was a year older than the one from which
he instituted his habeas corpus petition; that the women
and the plaintiff were not co-defendants herein; and that he
did not raise the point in his claim for a new attorney. He —
cannot complain of conflicting interests, if in fact they were
conflicting, with his knowledge of both representations of
counsel. 23 CJS Criminal Law, Section 982(9); People v.
Stock, 23 Ill. 2d 35, 177 N.E. 2d 98. The plaintiff cites Glasser
v. United States, 315 U.S. 60, 70; Campbell v. United States,
352 F. 2d 359, 360; Lollar v. United States, 376 F. 2d 243;
Sawyer v. Brough, 358 F. 2d 70, 73 and People v. Chacon,
73 Cal. Rept. 10, 447 P. 2d 106 all of which involve co-defen-
dants which was not the case here.
_ The petitioner further raises the issue that his plea was
involuntary since he did not have adequate time to obtain
counsel of his own choosing or to prepare his defense. The
36
petitioner never made known his desire for new counsel until
the morning he was to be scntenced, even to counsel then
representing him. New counsel was not present in court
on that day and in fact did not appear until about one week
after he was sentenced. He showed a lack of diligence and a
lack of good faith with the court in doing nothing about
new counsel from May 16, 1967 the date of piea to June 16,
1967 the date of sentencing, or from June 2, 1967 when
Sejerman and Baker were sentenced. It was within the court’s
discretion to grant or deny a continuance for new counsel,
66 ALR 2d 298. See United States v. Yager, 220 F. 2d 795
cert. denied 394 U.S. 963; Peopie v. Adame, 169 Cal. App.
2d 587, 337 P. 2d 477. Again reference is made to the Supreme
Court’s statement in State v. Dukes supra 506 that there was
no abuse of discretion by the court.
The last issue raised is that the physical and mental
disturbances at the time of plea rendered it involuntary.
This matter has been previously covered by the court’s
ruling that the plaintiff’s evidence of his physical and mental
health is not worthy of belief. Since there was no evidence
besides his own testimony on this issue the court is left
with no evidence upon which to base a finding and ruling.
In addition the hospital record indicates that he was respon-
ding fairly well and was completely oriented on May 12, 1967.
The issue has been discussed by both parties as to
whether on a plea of guilty, habeas corpus lies to determine
the voluntariness thereof, particularly in view of the ruling
that such a plea waives all defenses other than that the
indictment charges no offense and waives as well the right to
trial, the incidents thereof and the constitutional guarantees
with respect to the conduct of criminal prosecutions. Brisson
v. Warden, 25 Conn. Supp. 202. While the facts of the crime
may not be examined, the facts attendant upon the entry
of the plea of guilty may be inquired into on habeas corpus.
Doran v. Wilson, 369 F. 2d 505, 507; Commonwealth ex rel
POSEY ERI WIT EIT ALE LE OEE LETS GLI M LE IE LO EDER PSOE LAL EEE GEILE, SLEEP PORE EL NTI EL EDL ELROD EMELINE Nt Ft HERES
37
West v. Myers, 423 Pa. 1 222 A. 2d 918, 921. Machibroda v.
United States, 368 U.S. 487, 493; Trotter v. United States 359 F.
2d 419; United States ex rel Siebold v. Reincke, 362 F. 2d 592,
593. All of the cited cases have to do with coerced pleas and
pleas obtained as the result of tainted confessions which is
not the case here. However it is clear that the circumstance
surreunding the plea of guilty may be the subject of habeas
corpus.
For the reasons stated herein the petition is denied.
LEVINE, J.
January 15, 1970.
JUDGMENT IN HABEAS CORPUS
STATE OF CONNECTICUT
No.161335
CHARLES O. DUKES of the
Town of Somers
County of Tolland
\
SUPERIOR COURT
COUNTY OF HARTFORD
te of i
. e of Connecticut AT TFO
° JANUARY 15, 1970
WARDEN .
CONNECTICUT STATE PRISON
PRESENT HON. IRVING LEVINE, JUDGE
JUDGMENT
This petition for writ of habeas corpus dated July 1,
1969 as amended on October 6, 1969 claiming that the
petitioner was confined in Connecticut State Prison without
law or right came to this Court on July 14, 1969, and thence
to the present time, when the parties appeared and were at
issue to the Court, as on fil». |
.
. . ‘ ‘ ‘ * Bt oP AN A ir Sa CAMS, MO Pear gh
—— s ney ONE,
38
The Court, having heard the parties, finds the issues for
the defendant.
Whereupon it is adjudged that the petition be and hereby
is dismissed.
By the Court,
PATRICIA FRIEDLE,
Assistant Clerk.
FINDING ON HABEAS CORPUS APPEAL
First: The following facts are found:
1. The petitioner was arrested in Hartford in March
1967, and charged with a violation of the Uniform State
Narcotic Drug Act and larceny-receiving stolen gocds.
2. He was represented in the Circuit Court by the law
firm of Zaccagnino, Linardos and Delaney, which firm also
appeared for him in the Superior Court.
3. Peter J. Zaccagnino, Jr., Esq., is an attorney,
practicing law in Hartford, Connecticut, in partnership with
Robert Delaney, Esq., and George Linardos, Esq. An associate
with this firm is Robert Blechman, Esq.
4. In May 1967 Charles Dukes retained Mr. Zaccagnino
to represent him in connection with the charge for which he
is presently incarcerated. Whereupon Mr. Zaccagnino entered
an appearance in the case in the name of his law firm,
Zaccagnino, Linardos & Delaney.
5. Both Mr. Zaccagnino and Mr. Delaney on different
occasions handled the matter on behalf of the petitioner.
6. «At the Superior Court proceedings on May 9, 1967
}
39
the petitioner was represented by Peter J. Zaccagnino, Jr.,
acting as his attorney.
7. Prior to May 9, 1967 Mr. Dukes had discussions
with Mr. Zaccagnino regarding his plea during which time
Mr. Zaccagnino advised him he should plead guilty to the
charges against him. However, Mr. Dukes maintained that
he was innocent and would noi agree to plead guilty.
&. Prior to May 9, 1967 Mr. Zaccagnino discussed the
case a number of times with the State’s Attorney.
9. He was put to plea on one count of the Information,
the nar2otics count.
10. The petitioner pleaded not guilty and elected a jury
trial.
11. On May 10, 1967 the case was continued until May
16, 1967 for trial.
12. On May 9, 1967 Mr. Zaccagnino appeared in the
Superior Court for Hartford County before Johnson, J., with
Mr. Dukes and asked the Court for permission to withdraw
from the case because there was “a slight conflict” between
Mr. Zaccagnino and his client.
13. Mr. Dukes then addressed the Court himself and
advised the Court that he wished to retain counsel other than
Mr. Zaccagnino.
14. Mr. Zaccagnino reiterated his request for permission
to withdraw from the case and asked the Court for a con-
tinuance of one day to enable Mr. Dukes to get other counsel.
15. The Court would not allow Mr. Zaccagnino to with-
draw at that time. Mr. Dukes then entered a plea of not
guilty and elected a trial by a jury of 12. The Court then
Rei Mh oy
Ney ee Ben ete 2-7
Sikiecg titel:
CH ee PR LERLLEID?
it NGS SESS lad CARRE AK LE IEE SEE I SERS BO
40
granted a 24-hour continuance and told Mr. Dukes to be
prepared for trial the next day.
16. Mr. Zaccagnino reiterated his request for permission
to withdraw from the case and asked the Court for a con-
tinuance of one day to enable Mr. Dukes to get other counsel.
17. The Court did not allow Mr. Zaccagnino to withdraw
from the case.
18. On May 9, 1967 when the petitioner left the court
room he was arrested by members of the Hartford Police
Department and taken to the Hartford Police Station.
19. As a result of taking pills, he was admitted to
McCook Hospital on May 11, 1967 and discharged on May
13, 1967.
20. On May 16, 1967 the petitioner appeared with Robert
C. Delaney, Esq., and requested permission of the Court to
change his plea to guilty to the information charging the
narcotics count, and an amendment to the Information
charging the larceny-receiving count.
21. On May 16, 1967 petitioner, with Attorney Robert
C. Delaney assisting him, pleaded guilty to the narcotics
count and larceny-receiving count.
22. Mr. Delaney was familar with the case and had
talked to the petitioner several times about the case and had
handled the case in Circuit Court.
23. Between May 9, 1967 and May 16, 1967 Mr. Zac-
cagnino and Mr. Delaney discussed the case many times and
both of them agreed they should try to convince Mr. Dukes to
plead guilty. During this period, Mr. Zaccagnino tried to
convince Mr. Dukes to plead guilty.
41
24. Prior to the entry of the guilty pleas, the Court
made inquiry as io the voluntariness thereof as follows:
“MR. LABELLE: Yes, Your Honor, and I would
like to ask if inquiry would be made as to change vf
plea and that he be put to plea on toth the original
information again and this amendment also. Excuse me,
Your Honor. The record also ought to appear that Mr.
Delaney is here with him today and he is in the office
of Mr. Zaccagnino. I think the Court might inquire with
respect to the representation since there had been some
indication that counsel had asked to withdraw the other
day.”
“THE COURT: Well now, Mr. Dukes, I want to be
sure that everything is in order here. I was present the
other day, of course, when you were presented and the
problem came up about an attorney. Now I want, now
Mr. Delaney is here, are you fully satisfied with the
services he is rendering you, Mr. Dukes?”
“THE ACCUSED: Yes, sir.”
“THE COURT: You are. And now you know, of
course, Mr. Dukes, that — you know of course that
the State of Connecticut has the burden of proving you
guilty on the charge and you are free to go to trial but
you still wish to change your plea, is that correct?”
“THE ACCUSED: Yes, sir.”
“THE COURT: And do you do this of your own
free will, Mr. Dukes?”
“THE ACCUSED: Yes, sir.”
“THE COURT: And you know the probable con-
sequences of it?”
“THE ACCUSED: Yes.”
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42
“THE COURT: Very well, and no one has induced
you to do this, influenced you one way or the other?
You are doing this of your own free will?”
“THE ACCUSED: Yes, sir.”
“THE COURT: Very well then. We will accept the
change of plea.”
The case was continued to June 2, 1967 for sen-
tencing.
25. The petitioner had a lengthy conversation with Mr.
Delaney, his counsel, prior to entering his plea.
26. The petitioner recalls completely his conversations
held with his attorney, Mr. Delaney, before he entered his
guilty plea.
27. His attorney, Mr. Delaney, on May 16, 1967, did not
notice anything about his physical condition that would im-
pair iis ability to enter his plea.
28. Mr. Zaccagnino was not present in court with the
petitioner on May 16, 1967, when he entered his guilty plea.
29. The petitioner on specfic inquiry by the Court before
he pleaded tcid the Court he was satisfied with the repre-
sentation by Mr. Delaney.
30. On June 2, 1967 the petitioner appeared in Court
with Attorney Zaccagnino for sentencing, but the case was
continued to June 16, 1967 because the probation report was
not finished and because matters to be consolidated from other
counties had not been sent to Hartford.
31. On June 16, 1967 the petitioner was presented for
sentencing, and Attorney Zaccagnino appeared with him.
nal
wo
43
32. On June 16, 1967 Mr. Dukes again appeared before the
Superior Court for Hartford County, Devlin, J. with Mr.
Zaccagnino for sentencing. At that time he advised the Court
that he wanted to withdraw his guilty pleas and that he had
retained other counsel.
33. The request for permission to change the pleas was
denied whereupon Mr. Dukes was sentenced to the State
Prison for not less than 5 nor more than 10 years on the
First Count and for 2 years on the Second Count.
34. Ancillary to these proceedings Mr. Zaccagnino was
representing two girls by the names of Sandra Baker and
Andrea Sejerman for offenses unrelated to the charges to
which Mr. Dukes had pleaded guilty.
35. The petitioner was a co-defendant in the same case
with Sandra Baker and Andrea Sejerman, and they were all
charged with conspiru:y to obtain money by false pretenses.
36. The petitioner in the case in which he was involved
with Sandra Baker and Andrea Sejerman had as his counsel
Attorney Boce Barlow.
37. The petitioner was not represented by Attorney
Zaccagnino or any member of his firm in the case that he was
a co-defendant with Sandra Baker and Andrea Sejerman.
38. Sandra Baker and Andrea Sejerman were not in any
way connected with the petitioner in the case charging him
with violation of the narcotics act and larceny-receiving stolen
goods for which he pleaded guilty.
39. During his remarks on behalf of the Baker and
Sejerman girls, Mr. Zaccagnino told the Court that these
girls had come under the influence of Charles Dukes who had
led them astray. He pointed out that because of their cooper-
ation with the State Police they capitulated Dukes into
seed = Penne Put Piler an) tt
PROS Rat 8 Soe pees f
Si BRN elke KEPLER NREL LAE SAE ATOLL RAS
44
pleading guilty. He noted that because of their cooperation
Dukes would very shortly be removed from society. He
placed the blame for the offenses committed by the girls on
Dukes saying that he was the most culrable since he had all
the instruments with which to cupez the girls.
40. The sentencing remarks by Attorney Zaccagnino in
the Sandra Baker and Andrea Sejerman cases, when he was
referring to Dukes, the petitioner, only had to do with the
relationship between Dukes and the two girls in that particular
case where all three of them were co-defendants.
41. All of the remarks made by Attorney Zaccagnino
concerning Dukes and the two girls only pertained to that
particular case and iad nothing to do with the petitioner’s
case for which he was sentenced, and which is the subject
of this habeas corpus.
42. When the petitioner Dukes hired Mr. Zaccagnino to
represent him on the nazcotics and larceny-receiving case,
the petitioner knew that Mr. Zaccagnino at that time was
representing Sandra Baker and Andrea Sejermar in the con-
spiracy to obtain money by false pretenses case in which the
petitioner was a co-defendant and was represented by Mr.
Barlow.
43. On June 16, 1967, when the petitioner was presented
and sentenced, he indicated to the Court that he had consuited
other counsel, the night before.
44. No other counsel had entered any appearance on be-
half of the petitioner.
45. The petitioner on June 16, 1967, in connection with
his claim about contacting other counsel, did not make any
complaint to the Court that he was not satisfied with Attorney
Zaccagnino because he represented Sandra Baker and Andrea
Sejerman.
45
Second: The following conclusions of fact have heen
reached:
46. The petitioner at all times knew that Attorney Zac-
cagnino represented Sandra Baker and Andrea Sejerman in
the conspiracy to obtain money by false pretenses case, a case
in which the petitioner was also charged as a co-defendant.
47. The petitioner hired Attorney Zaccagnino to repre-
sent him after Attorney Zaccagnino had been retained to
represent the two girls, and the petitioner knew when he
hired Attorney Zaccagnino to represent him that Attorney’
Zaccagnino represented the two girls in the unrelated con-
spiracy to obtain money by false pretenses case, in which he .
was also involve.
48. There was no connection between the conspiracy to
obtain money by false pretenses case and the narcotics and
larceny-receiving case for which the petitioner was sentenced.
49. The remarks made by Attorney Zaccagnino on be-
half of Sandra Baker and Andrea Sejerman at the time of
sentencing on June 2, 1967 concerning the petitioner only
had to do with the petitioner’s connection with the girls in
the conspiracy to cbtain money by false pretenses case.
50. The petitioner never made any request to the trial
court that he be permitted to obtain new counsel because of
any conflict of interest by Mr. Zaccagnino in representing
him in the narcotics and larceny-receiving case while at the
same time Mr. Zaccagnino represented the two girls in the
unelated conspiracy to obtain money by false pretenses case.
51. On May 16, 1967, when he entered his guilty plea,
there was nothing about his physical condition that in any
way impaired his ability to enter his plea.
a
“4
*
&
46
Third: The following conclusions of law have been
reached:
52. The voluntariness of the guilty pleas entered by the
petitioner on May 16, 1967 has already been determined in
State v. Dukes, 157 Conn. 498, 506.
53. The defendant was not denied the effective as-
sistance of counsel, and there was not any conflict of interest
because his counsel represented Baker and Sejerman in an
unrelated case.
54. The plea of guilty by the petitioner on May 16, 1967
was the free and understanding expression of his own wishes.
55. The guilty plea entered by the petitioner on May 16,
1967 was intelligently and voluntarily made.
56. The inquiry made by the Court at the time the
petitioner entered his guilty plea was adequate and sufficient
for the Court to determine that the guilty plea of the
petition r was voluntarily and intelligently made.
Fourth: The petitioner made the following claims of
law respecting the judgment to be rendered upon which the
Court ruled as hereinafter stated:
57. Petitioner’s pleas of guilty were involuntarily made
in that he was denied the effective assistarce of counsel due
to the conflict of interest that his attorney had in representing
two clients whose interests were adverse to his, but the Court
ruled that petitioner could not complaim of a conflict of interest
" he knew of both representations at the time of his plea.
\
58. The record fails to disclose facts sufficient to estab-
lish the voluntariness of the petitioner’s guilty pleas in that
the trial Court did not make adequate inquiry to establish
47
same, but the Court ruled that the trial Court had made
sufficient inquiry.
59. Judgment should enter setting aside petitioner’s
pleas of guilty and granting petitioner’s petition for writ of
habeas corpus.
All of these claims the Court denied.
Fifth: All of the exhibits introduced into evidence on
the trial of this matter together with the transcripts of the
prior proceedings annexed to the Respondent’s Return are
hereby made a part of the record and may be used on the
appeal to the Supreme Court without printing.
LEVINE, J.
Filed May 27, 1970.
Assignment of Errors on Hzbeas Corpus Appeal
The Court erred:
1. In refusing to find the material facts set forth in
paragraphs 17 and 18 of the Draft Finding which were ad-
mitted or undisputed;
2. In refusing to reach the conclusions stated in para-
graphs 21, 22, 23, 24 and 25 of the Draft Finding;
3. In reaching the conclusions of law stated in para-
graphs 52, 53, 54, 55 and 56 of the Finding;
4. In denying the claims of law made by the Petitioner
in paragraphs 57, 58 and 59 of the Finding;
5. In denying the Petition for Habeas Corpus and
rendering judgment for the defendant when the conclusions
Bieie eee A AR EO GAB SRL
48
reached by the Court do not support it in that on the face
of the record a conflict of interest is apparent thereby de-
priving the Petitioner of the effective assistance of counsel.
Petitioner, CHARLES O. DUKES
By JAMES A. WADE
His Attorney
Filed June 8, 1970.
Read June 15, 1970.
LEVINE, J.
SUPREME COURT
HARTFORD COUNTY CLERK’S OFFICE
The above and foregoing is a true copy of the record in
said case to be used in the trial in the Supreme Court.
Attest, ' DOMINIC A. DiCORLETO
Clerk.
OPINION BELOW
CHARLES O. DUKES
v.
WARDEN, CONNECTICUT STATE PRISON
Habeas corpus alleging unlawful imprisonment, brought
to the Superior Court in Hartford County and tried to the
court, Levine, J.; judgment dismissing the appeal, from which
the plaintiff appealed. No error.
James A. Wade, for the appellant (plaintiff).
Richard F. Banbury, assistant state’s attorney, with
whom, on the brief, wa; John D. LaBelle, state’s attorney,
for the appellee (state).
49
LOISELLE, J. The plaintiff pleaded guilty, on May 16,
1967, to two counts in an information charging a violation of
the Uniform State Narcotic Drug Act in the first count, and
larceny in the second count. He was sentenced to state prison
on June 16, 1967.
: This appeal is taken from a judgment rendered J anuary
| 15, 1970, denying his application for a writ of habeas corpus
after a full hearing on the merits. Statutory certification for
the appeal to ‘his court was granted pursuant to General
Statutes § 52-470.
This court has previously affirmed the plaintiff’s convic-
tion in connection with a direct appeal taken by him. State
v. Dukes, 157 Conn. 498, 255 A.2d 614. The plaintiff, however,
has made certain claims involving his federal constitutional
rights in the instant appeal from the judgment denying his
petition for a writ of habeas corpus which were not raised
on direct appeal.
It is well established that a guilty plea which is not made
voluntarily and intelligently constitutes a violation of a de-
fendant’s federal constitutional rights and a judgment of con-
viction based on such a plea cannot stand. See Brady v._
1 United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 25 L. Ed. 2d
747; Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23
L. Ed. 2d 274; McCarthy v. United States, 394 U.S. 459, 466,
89 S. Ct. 1166, 22 L. Ed. 2d 418; Machibroda v. United States,
368 U.S. 487, 493, 82 S. Ct. 510, 7 L. Ed. 2d 473; Kercheval v.
United States, 274 U.S. 220, 223, 47 S. Ct. 582, 71 L. Ed. 1009;
Consiglio v. Warden, 160 Conn. 151, 160, 276 A.2d 773; Wil-
liams v. Reincke, 157 Conn. 143, 148, 249 A.2d 252. The plain-
tiff in his petition alleged that his guilty plea was not volun-
tary and intelligent on several grounds. On appeal, however,
he has asserted in essence only that he was denied the effec-
tive assistance of counsel which rendered his plea involun- _
50
tary, and that the trial court did not make an adequate on-
the-record inquiry into the voluntariness of his plea.
The plaintiff’s primary claim is that the trial court erred
in concluding that he was not denied the effective assistance
of counsel and in overruling his claim that his plea was ren-
dered involuntary by the ineffective assistance of counsel.
The following facts are relevant to this claim. The plain-
tiff was arrested in Hartford in March, 1967 on the two
charges previously mentioned. He was represented in the
Circuit Court by Robert C. Delaney, a member of the law
firm of Zaccagnino, Linardos and Delaney, on the bindover
proceedings. Between the time of the bindover proceedings
and May: 9, 1967, when the plaintiff appeared in the Superior
Court for Hartford County for the entry of his plea, he had
had discussions with Peter J. Zaccagnino, Jr., a member of
the above-named law firm, regarding his plea. At the Supe-
rior Court hearing on May 9, 1967, the plaintiff had further
discussions with Attorney Zaccagnino who advised him to
plead guilty. The plaintiff maintained his innocence and
pleaded not guilty after some further discussion with the
‘4 court, the state’s attorney and Attorney Zaccagnino.
4
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On May 16, 1967, the plaintiff appeared with Attorney
Delaney and requested permission of the court to change his
j plea concerning the two counts in the information. After a
: lengthy discussion with Attorney Delaney and after searching
; questions by the court (Johnson, J.) concerning the change
of plea, the plaintiff pleaded guilty to both charges. Attorney
7 Zaccagnino was not present in court with the plaintiff when
he entered his guilty plea.
On June 2, 1967, the plaintiff appeared in court with
Attorney Zaccagnino for sentencing but the case was con-
tinued to June 16, 1967, at which time the plaintiff again
appeared in court with Attorney Zaccagnino for sentencing.
51
At that time he requested that his plea of guilty to beth
charges be withdrawn but the court denied his request and
proceede<. .o sentence him to the state prison.
Ancillary to these proceedings, Attorney Zaccagnino rep-
resented two girls charged with conspiracy to obtain money
by false pretenses in another unrelated case in which the
plaintiff was a codefendant. The plaintiff was represented in
that case by other counsel. The girls were in no way con-
nected with the instant case in which the defendant pleaded
gnilty. Prior to their sentencing by the court, Attorney Zac-
cagnino made certain remarks on their behalf and stated that
the plaintiff had led the two girls astray; that the coopera-
tion of the two girls had led the plaintiff to plead guilty in
that case and that because of such cooperation the plaintiff
would very shortly be removed from society. He also stated
that the blame for the offenses committed by the two girls
should be placed on the plaintiff as he was the most culpable
since he had all the instruments with which to dupe the girls.
These remarks by Attorney Zaccagnino concerning the plain-
tiff had only to do with the relationship of the plaintiff and
the two girls in that particular case where all three of them
were codefendants, and in no way referred to the instant case
for which he was later to be sentenced.
None of the aforementioned facts found by the court are
attacked by the plairtiif. The plaintiff, however, assigns error
in the trial court’s refusal to find certain paragraphs of his
draft finding. The paragraphs in question state that on April
18, 1967, Attorney Zaccagnins represented the two girls
when they appeared to plead guilty, that on June 2, 1967,
he represented them when they appeared for sentencing, and
that these appearances were before the same judge (Deviin,
J.) before whom the plaintiff in this case later appeared for
sentencing. The plaintiff has printed in his appendix portions
2% transcript of the proceedings at which the girls were
fi
Bikes: GRA a ALS OTE apices een eS
4
a
represented by Attorney Zaccagnino which disclose that the
omitted facts were true. The state in its counterfinding in-
cluded the same requests as were included in the paragrayh
in question of the plaintiff’s draft finding. Moreover, the trial
court in its memorandum of decision takes note of the omit-
ted facts and treats them as undisputed. In light of the fore-
going, we will take cognizance of the facts in question. See
State v. Mahmood, 158 Conn. 536, 539, 265 A.2d 83.
In connection with the plaintiff’s direct appeal this court
held that the trial court did not err in concluding: That his
plea of guilty on May 16, 1967, was voluntary and intelligent;
that he had ample time to change counsel or indicate a desire
again to change his plea between May 16 and June 16; that no
credibile evidence was introduced in support of his request
to change his plea made at the time of sentencing on June
16; that his request to change his plea made at this time was
fur the purpose of delaying sentencing, and that it would not
be fair and just under all the circumstances to allow the
defendant again to change his plea. State v. Dukes, 157 Conn.
498, 506, 255 A.2d 614.
In Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457,
86 L. Ed. 680, the Supreme Court enunciated the principle
that a conflict of interest in the representation of two or more
defendants in the same case by the same counsel constitutes
a denial of effective assistance of counsel. The mere fact,
however, of joint representation of codefendants by a single
attorney is not sufficient to establish ineffective assistance of
counsei in the absence of a showing of an actual conflict of
interest prejudicial to one of the defendants. See United
States v. Youpee, 419 F.2d 1340, 1346 (9th Cir.); United
States v. Sheiner, 410 F.2d 337, 343 (2d Cir.); United States
v. Berriel, 371 F.2d 587 (6th Cir.); Mohler v. United States,
312 F.2d 228, 230 (7th Cir.), cert. denied, 374 U.S. 854, 83
S. Ct. 1922, 10 L. Ed. 2d 1074; Lott v. United States, 218 F.2d
$75, 681 (Sth Cir.); State v. Costa, 155 Conn. 304, 308, 228
53
A.2d 561, cert. denied, 389 U.S. 1044, 88 S. Ct. 789, 19 L. Ed.
2a 837.
The plaintiff claims that he was denied the effective as-
sistance of counse] because there was a conflict of interest be-
tween Attorney Zaccagnino’s representation of him in this
case and his representation of the two defendants in another
entirely unrelated case wherein he was a codefendant while
the instant case was pending. This claim is based on the fact
that Attorney Zaccagnino made derogatory remarks about
the plaintiff to the trial judge before whom he was appearing
on behalf of the two defendants in the other unrelated case,
apparently in an effort to secure lighter sentences for them.
The plaintiff contends that he was prejudiced by these re-
marks because they were made before the same judge who,
two weeks later, sentenced him for the offenses with which
he was charged in this case.
Even assuming, arguendo, that there was a denial of
the effective assistance of counsel because of a conflict of
interest prejudicial to the plaintiff, the only question in this
regard presented by this appeal is whether the conflict ren-
dered the plea involuntary and unintelligent. Since Gideon
v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2.999,
it has been clear that a plea of guilty to a felony charge
entered without counsel is invalid. Brady v. United States,
397 U.S. 742, 748 n.5, 90 S. Ct. 1463, 25 L. Ed. 2d 747: see
White v. Maryland, 373 U.S. 59, 83 S. Ct. 1050, 10 L. Ed. 2d
193; see generally, note, 25 L. Ed. 2d 1025, 1032. Where, as
here, however, a guilty plea is entered upon the advice of
counsel, the plea constitutes an admission of guilt and a
waiver of nonjurisdictional defects and claims, including
federal constitutional claims, which might otherwise be raised
by way of defense, appeal or collateral attack. See United
States ex rel. Rogers v. Warden; 381 F.2d 209, 212 (2d Cir.);
United States v. Doyle, 348 F.2d 715, 718 (2d Cir.), cert.
denied, 382 U.S. 843, 86 S. Ct. 89, 15 L. Ed. 2d 84; United
BERLE LEI LET I IETS ILE LE LOTTI INEM LIE EL, LEE ELE LORY CLT LEIS LTE IER LL ET OE
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States ex rel. Boucher v. Reincke, 341 F.2d.977, 980 (2d Cir.);
Consiglio v. Warden, 160 Conn. 151, 166, 276 A.2d 773; Wil-
liams v. Reincke, 157 Conn. 143, 147, 249 A.2d 252. This
waiver rule means that a claim of the ineffective assistance
of counsel due to an alleged conflict of interest, standing
alone, is not sufficient to call the validity or a guilty plea
and the judgment of conviction based thereon into question.
Curry v. Burke, 404 F.2d 65 (7th Cir.); Vanater v. Boles,
; 377 F.2d 898, 901 (4th Cir.); Martin v. United States, 256
‘ F.2d 245, 349 (5th Cir.), cert. denied, 358 U.S. 921, 79
: S. Ct. 294, 3 L. Ed. 2d 240; In re Shuttle, 125 Vt. 257, 262, 214
A.2d 48. Of course, a guilty plea does not constitute a waiver
of a claim that the plea itself was rendered involuntary and
unintelligem 2s a result of a violation of an accused’s funda-
mental constitutional rights. See Per»sylvania ex rel. Herman
v. Claudy, 350 U.S. 116, 118, 76 S. Ct. 223, 100 L. Ed. 126;
Doran v. Wilson, 369 F.2d 505, 507 (9th Cir.); Williams v.
Reincke, supra, 148. Thus, an allegation of the ineffective
assistance of counsel is a factor to be taken into consideration
in determining whether a guilty plea was voluntary and intel-
ligent, but for the plea and the judgment of conviction based
thereon to be overturned on this ground, it must be demon-
strated that there was such an interrelationship.between the
ineffective assistance of counsel and the plea, that it can be
said the plea was not voluntary and intelligent because of the
ineffective assistance. See Parker v. North Carolina, 397 U.S. _
790, 796, 90 S. Ct. 1458, 25 L. Ed. 2d 785; McMann v. Richard-
son, 397 U.S. 759, 770, 90 S. Ct. 1441, 25 L. Ed. 2d 763; United
States ex. rel. Boucher v. Reincke, supra, 981.
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There is nothing in the record before us which would
indicate that the alleged conflict resulted in the ineffective
assistance of counsel and did in fact render the plea in ques-
tion involuntary and unintelligent. The piaintiff does not
claim, and it is nowhere indicated in the finding, nor could
it be inferred from the finding, that either Attorney Zaccag-
\
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55 VS
nino or Attorney Delaney induced ‘the plaintiff to plead
guilty in furtherance of a plan to obtain more favorable con-
sideration from the court for other clients. See United Stutes
ex rel. Taylor v. Rundle, 305 F. Sup. 1036, 1039 (E.D. Pa.).
Neither does the finding in any way disclose, nor is it
claimed, that the plaintiff received misleading advice from
Attorney Zaccagnino or Attorney Delaney which led him to
plead guilty. McMann v. Richardson, supra; Parker v. North
Carolina, supra. Moreover, the trial court specifically found
that when the plaintiff engaged Zaccagnino as his counsel,
he knew that Zaccagnino was representing two defendants
in the unrelated case in which he was a codefendant, that
he never complained to the Court that he was not satisfied
with Attorney Zaccagnino because of this dual representa-
tion, that he was not represented at the entry of his plea by
Attorney Zaccagnino, that he was represented by Attorney
Delaney at the entry of his plea, that he had a lengthy con-
versatioly with Attorney Delaney prior to entering his plea
whiclk. he recalled completely, and that on specific inquiry
by the court before he pleaded guilt:, he told the court that
he was satisfied with the representation by Attorney Delaney.
The court did not err in concluding that the plaintiff’s plea
was not rendered involuntary and unintelligent by the
alleged conflict of interest.
Obviously, the derogatory remarks by Attorney Zaccag-
nino on behalf of his clients in one case about a client whom
he is representing in another case were highly improper.
“When a client engages the services of a lawyer in a given
piece of business he is entitled to feel that, until that business
is finally disposed of in some manner, he has the undivided
loyalty of the one upon whom he looks as his advocate and
his champion.” Grievance Committee v. Rottner, 152 Conn.
59, 65, 203 A.2d 82; see United States ex rel. Taylor v. Rundle,
supra; Commonwealth v. Cullen, 216 Pa. Super. 23, 260 A.2d
818. Attorney Zaccagnino is not a party to these proceed-
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56
ings and the question as to whether or not his conduct was
such as to merit disciplinary action is not before us for de-
cision on this appeal. We de not, accordingly, express any
opinion as to what, if any, disciplinary action should be taken
by the appropriate committee or by the Superior Court. As
we have pointed out, the only question at issue here is
whether counsel’s action rendered the plaintiff’s plea involun-
tary and unintelligent. .
The plaintiff also claims that the trial court erred in
concluding that the on-the-record inquiry made by the trial
court at the entry of. his plea was adequate for the court to
determine that the plea was voluntary and intelligent. The
plaintiff conténds that the court’s inquiry did not satisfy the
requirements of Boykin v. Alabama, 395 U.S. 238, 89 S. Ct.
1709, 23 L. Ed. 2d 274, in which the United States Supreme
Court held that it could not be presumed on the basis of a
silent record that a plea was knowingly intelligent and volun-
tary. This court, however, recently held that the Boykin rule
was not applicable retroactively to cases such as the present
case in -vh'ch the plea was entered prior to the Boykin deci-
sion. Co.-si'lio v. Warden, 160 Conn. 151, 166, 276 A.2d 773.
Moreover, the record in this case is far from being a silent one.
The plaintiff was questioned by the trial court about his sat-
isfaction with his counsel, about his understanding that the
state had the burden of proof, about his understanding that
he was entitled to a trial, and about the probable conse-
quences of his plea. He was also asked directly whether he
was induced or influenced to plead guilty and whether his
plea was of his own free will. In short, the plaintiff’s claim
that the trial court’s inquiry was not adequate to determine
the voluntariness of the plea is without merit.
There remains the state’s contention that the plaintiff
waived his right to raise these claims because he did not
make them on direct appeal. This need not be considered in-
o7
asmuch as we have found that the plaintiff’s claims are with-
out merit.
Although the determination that the plaintiff’s guilty
plea was voluntarily and intelligently made is dispositive of
the appeal, to be certain that there was no injustice to the
plaintiff at the time of sentencing, we have reviewed the
entire transcript of the proceedings of June 2 and June 16,
1967. In addition, the entire record and briefs of the former
appeal were also reviewed. The improper remarks made by
counsel on June 2, 1967, were a repetition of what had already
been told to the court in substance by the state’s attorney.
All of this was contained in great detail in the presentence
report. The sentence imposed by the court on June 16, 1967,
was an adoption of the recommendation made by the state’s
attorney. After the aforementioned thorough review, we are
unable to find any indication of preiudice in respect to the
sentencing of the plaintiff.
There is no error.
In this opinion the other judges concurred.
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JUDGMENT BELOW
This appeal by the petitioner from the judgment of the
Superior Court was filed with the Clerk of said Court on the
3rd day of March, 1970, and said appeal came thence to the
8th day of June, 1970, when the appellant filed his assignment
of errors, as may appear in the certified transcript of record
on file in this Court, and said appeal came thence to this
Court at its term held at Hartford on the first Tuesday of
Aprii, 1971, and thence to the present term when the parties
‘appeared and were fully heard..
And now this Court finds there is no error.
Whereupon it is adjudged that said judgment be affirmed.
Date of Judgment: June 25, 1971.
By the Court,
. THOMAS H. ABRAHAM
Clerk
59
EXBIBIT 1, HABEAS CORPUS
#28080
STATE SUPERIOR COURT i
V. HARTFORD COUNTY
ANDREA SEJERMAN APRIL 18, 1967
BEFORE HONORABLE RAYMOND J. DEVLIN, JUDGE
JOHN D. LABELLE, ESQ.
FOR THE STATE
1 TRC RD RRS Ne a ak ao te El
PETER J. ZACCAGNINO, JR., ESQ.
FOR THE ACCUSED
MR. LABELLE: May inquiry be made as to change of
plea, to the first and third counts, Your Honor?
ASSISTANT CLERK PAUL LEVINE: Andrea Sejerman,
on April 4th, 1967, to an information charging you with con-
spiracy to obtain money by false pretenses, five counts, you
entered a plea of not guilty and elected a trial by jury of
twelve. Do you now wish to withdraw your plea and election
as to the first and third counts?
THE ACCUSED: Yes.
MR. LEVINE: Do you waive reading of the information?
MR. ZACCAGNINO: Waive the reading.
ERE TT TE ERENT LONE iiss meet ee eT LAAT RMR HE
MR. LEVINE: Andrea Sejerman, to the second count
of the information charging you with conspiracy to obtain
money by false pretenses, what is your plea, guilty or not
guilty?
THE ACCUSED: Not guilty. Guilty.
4
“‘S
60
MR. LEVINE: To the third count of the information
g charging you with conspiracy to obtain money by false pre-
; tenses what is your plea, guilty or not guilty? |
THE ACCUSED: Guilty.
MR. LABELLE: In view of those pleas, Your Honor,
the State will nolle the other counts. They all occurred the
same day as part of the same set of circumstances.
THE COURT: All right, one, four and five are nolled.
MR. LABELLE: May this be assigned for presentence
report and be set down for disposition on the 19th of May?
THE COURT: Pre-sentence investigation ordered. 19th
of May. |
MR. ZACCAGNINO: If Your Honor please, I hope, I
am making the request from some other counties to have
them sent here. If they are not completed by that day I may
have to request a continuance, because there are some other
counties that have matters pending on the same charge.
THE COURT: All right.
61
EXHIBIT 2, HABEAS CORPUS
#28081
STATE SUPERIOR COURT
V. HARTFORD COUNTY
SANDRA BAKER APRIL 18, 1967
BEFORE HONORABLE RAYMOND J. DEVLIN, JUDGE
JOHN D. LABELLE, ESQ.
FOR THE STATE
PETER J. ZACCAGNINO, JR., ESQ.
FOR THE ACCUSED
MR. LABELLE: May inquiry be made as to change of
plea to the first and third counts?
ASSISTANT CLERK PAUL LEVINE: Sandra Baker,
on April 4th, 1967, to an information charging you with con-
spiracy to obtain money by false pretenses in five counts, you
entered a plea of not guilty and elected a trial by a jury of
twelve. Do you now wish to withdraw your plea and election
as to the first and third counts?
THE ACCUSED: Yes.
MR. LEVINE: Do you waive reading of the informa-
tion?
MR. ZACCAGNINO: Waive the reading.
THE COURT: Is the mother here?
oe Te
MR. ZACCAGNINO: Yes, the mother is here. Step
7 forward.
62
‘MR. LEVINE: Sandra Baker, to the first count of the
information charging you with conspiracy to obtain money by
false pretenses what is your plea, guilty or not guilty?
THE ACCUSED: Guilty.
MR. LEVINE: To the third count of the information
charging you with conspiracy to obtain money by false pre-
tenses what is your plea, guilty or not guilty?
THE ACCUSED: Guilty.
MR. LABELLE: The State will nolle the other three
counts, Your Honor, for the same set of circumstances. |
MR. ZACCAGNINO: There’s also other matters that
will need transfer to this county also.
MR. LABELLE: May this go down for May 19th?
THE COURT: Pre-sentence investigation ordered. Con-
tinued until the 19th.
63
EXHIBIT 3, HABEAS CORPUS
#28080
STATE
V. . SUPERIOR COURT
ANDREA SEJERMAN
4
#28081
ne HARTFORD COUNTY
SANDRA BAKER JUNE 2, 1967
BEFORE HONORABLE RAYMOND J. DEVLIN, JUDGE
GEORGE A. SILVESTER, ESQ.
FOR THE STATE
PETER J. ZACCAGNINO, JR., ESQ.
FOR THE ACCUSED
MR. SILVESTER: If Your Honor pieases, both accused
are represented by Attorney Peter Zaccagnino. Now, let’s
see, in the case cf Sejerman she is twenty-cne. Is that so?
MR. ZACCAGNINO: Yes, Your Honor.
MR. SILVESTER: And in the case of Sandra Baker
she is a minor, nineteen.
MR. ZACCAGNINO: Her mother is here, Your Honor.
MR. SILVESTER: Now as I understand the Situation,
if Your Honor pleases, at a prior time both accused have pled
guilty to charges of conspiracy to obtain money by false pre-
tenses in two counts and the matter’s been referred to the
Adult Probation Department for pre-sentence investigation
and report. In the meantime some warants have been received
from — is it Litchfield County?
64
ASSISTANT CLERK PAUL LEVINE: Yes.
MR. SILVESTER: On which they have to be put to
plea this morning.
MR. LEVINE: Yes. This is Litchfield County #4502,
State of Connecticut versus Sandra M. Baker.
MR. ZACCAGNINO: We'll waive the reading.
MR. LEVINE: -Sandra M. Baker, to the first count of
the information charging you with ttering and publishing
a false, forged and counterfeitea document and signature with
intent to defraud in violation of 53-346, what is your plea,
guilty or not guilty?
THE ACCUSED: Guilty.
MR. LEVINE: To the second count of the information
charging you with uttering a forged instrument what is your
plea, guilty or not guilty?
THE ACCUSED: Guilty.
MR. LEVINE: To the third count of the information
charging you with uttering a forged instrument what is your
plea, guilty or not guilty?
THE ACCUSED: Guilty.
MR. LEVINE: To the fourth count of the information
charging you with conspiracy what is your plea, guilty or not
guilty?
THE ACCUSED: Guilty.
MR. LEVINE: This is Litchfield County #4503, State of
Connecticut verus Andrea Sejerman.
onl _
3
MR. ZACCAGNINO: We’ll waive the reading.
MR. LEVINE: Andrea Sejerman, to the first count of
the information charging you with uttering a forged docu-
ment what is your plea, guilty or not guilty?
THE ACCUSED: Guilty.
MR. LEVINE: To the second count of the information
charging you with uttering a forged instrumcnt what is your
plea, guilty or not guilty?
THE ACCUSED: Guilty.
MR. LEVINE: To the third count of the information
charging you with uttering a forged instrument what is your
plea, guilty or not guilty?
THE ACCUSED: Guilty.
MR. LEVINE: To the fourth count of the information
charging you with conspiracy what is your plea, guilty or not
guilty?
THE ACCUSED: Guilty.
MR. SILVESTER: If Your Hcxor pleases, as far as I
can determine the nature of the involveme-:t with: respect to
both of these young ladies is that they became associated with
one Charles Dukes who is co-accused awaiting sentencing in
this court, and Charles Dukes had paraphernalia with respect
to checks ard money orders and they agreed to cash these
checks with false credentials furnished by him. I can’t tell
Your Honor the extent of the amount that is involved here.
The records of the accused in the case of Sejerman is
attached to the pre-sentence report and apparently she has
no prior convictions, and in the case of the accused Baker
HS STR NE mene
, ~~
66
her record is set out on page two of the pre-sentence report,
and apparently here, too, there are no prior convictions.
I’m sorry, I’m advised, Your Honor, there are warrants
from Fairfieid County also.
MR. LEVINE: This is Fairfield County #26756, State
versus Sandra Baker.
MR. ZACCAGNINO: . We'll waive the reading.
MR. LEVINE: Sandra Baker, to the first count of the
information charging you with obtaining money under false
pretenses what is your plea, guilty or not guilty?
THE ACCUSED: Guilty.
MR. SILVESTER: How many counts is that?
MR. LEVINE: I think there are four.
MR. SILVESTER: If Your Honor pleases, I don’t know
exactly what my authority is, but if she pleads to one count
the State would be willing to nolle the other three counts.
_ THE COURT: I think we ought to get them all on the
record and treat them as one.
MR. SILVESTER: Very well.
MR. LEVINE: To the second count of the information
charging you with obtaining money by false pretenses what
is your plea, guilty or not guilty?
THE ACCUSED: Guilty.
MR. LEVINE: To the third count of the information
charging you with obtaining merchandise and money what
is your plea, guilty or not guilty?
We ae : ‘
67
THE ACCUSED: Guilty.
-MR. LEVINE: To the fourth count of the information
charging you with obtaining money under false pretenses
what is your plea, guilty or not guilty?
THE ACCUSED: Guilty.
MR. LEVINE: This is Fairfield County 26 — 16758,
Andrea Sejerman
MR. ZACCAGNINO: Waive the reading.
MR. LEVINE: Andrea Sejerman, to the first count of
the information charging you with obtaining money under
false pretenses what is your plea, guilty or not gvilty?
THE ACCUSED: Guilty.
MR. LEVINE: To the second count of the information
charging you with obtaining money under false pretenses
what is your plea, guilty or not guilty?
THE ACCUSED: Guilty.
MR. LEVINE: To the third count of the information
charging you with obtaining money under false pretenses
what is your plea, guilty or not guilty?
THE ACCUSED: Guilty.
MR. SILVESTER: Are there some from New Haven
there also, Mr. Clerk?
MR. LEVINE: I don’t see any from New Haver.
MR. SILVESTER: May I have a moment, if Your Honor
please? I am advised, Your Honor, there are other outstanding
warrants, especially from New Haven County, which ap-
parently haven’t been forwarded to Hartford.
EIN ae RIAL Stace eck RNY pon iL oe lati
| Beers Bob Pe hk id Ne
68
If Your Honor pleases, the presentence reports are be-
fore Your Honor. There has been no discussion with respect
to penalty, and the matter is being submitted to Your Honor
without recommendation.
MR. ZACCAGNINO: If Your Honor pleases, with re-
spect to these two girls, both of them have had psychiatric
help in the past, and both of them have been to a psychiatrist
after this arrest, and I received the reports too late to file
them with the probation reports. I’d like to have them sub-
mitted to Your Honor for perusal.
MR. SILVESTER: No objection.
THE COURT: All right.
MR. ZACCAGNINO: If Your Honor pleases, as a result
of this arrest Andrea Sejerman spent thirty-three days in
jail waiting to make bond, and Sandra Baker spent sixty days
in jail. As Your Honor knows from looking ‘at the probation
report and from the circumstances involved, both of them
came under the influence of Charles Dukes. Now how they
could get in a position to come under the influence of some-
body like him, if Your Honor pleases, creates the problem
here that I think is the cause of the whole situation.
.Both these girls left their homes, came under the in-
fluence of Dukes and got involved. I think, Your Honor,
though, that the one thing I might say about both of them
that should stand in their good stead, as a result of their
willingness to cooperate with the State Police they capitulated
Dukes into making a plea. { think. Your Honor, since I was
on both sides of the case, having been on the other side on
the other case I can tell Your Honor that it was these girls
that because of their refusal, not refusal, not to cooperate
with Dukes and to testify against him that capitulated him
into taking a plea on which he will shortly be removed from
Ty
69
society, so I think this, Your Honor, the only question here
is what to do with these girls.
I have spent a lot of time with both their parents.
Their parents for the period of time in which they were
away did lose control of these girls, but both the parents,
both mothers of these two girls are in the courtroom today,
and both of them: have a great concern for their daughters.
I have advised them from the beginning it was my thought
the only way they could help themselves the most was going
back with their parents, but here they stand before Your
Honor for punishment. It’s up to Your Honor to decide what
to do. It’s easy to say they are involved with a lot of crimes,
let’s send them to the State Farm, that’s where they should
be. It would seem at first blush that’s where they should go.
Both of them have no records to speak of. The record
they did have, obviously, looking at the charge one knows
it had to be involved with Dukes. Also both cases were nolled,
because of a similar circumstances that involved them the
case was nolled and they weren’t convicted. The only things
that stand before Your Honor are these particular offenses.
I would say, Your Honor, apparently Andrea needs some
out-patient clinic help. I showed the report to her mother and
she has agreed to help her. If Your Honor were to feel that
perhaps the State Farm was not the place for these girls
I think, Your Honor, that normally, under normal circum-
stances that the first time that these cases such as this come
up before Your Honor — I realize there’s a‘lot of charges,
but Your Honor knows from Your Honor’s own experience
on the bench, when there is a great number of offenses they
are like one instance because after they are caught it ceases
the activity, in other words, one or twenty. Granted, society
has been injured more by twenty, however Your Honor can
treat them like one transaction, one instance, because once
the arrest takes place and the mental processes go on about
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70
attempting to rehabilitate themselves it ceases the activity.
It’s like the housewife who thinks she’s going to steal some-
thing, gets caught once and doesn’t do it again, doesn’t repeat.
I think, Your Honor, with the great interest the parents
have shown in the girls it may be there is some hope for
the girls. I think since both of them have been in jail and
spent some time in jail I’d respectively recommend, Your
Honor, that they be given a long sentence in the State Farm
for Women, not just a short one, and be put on probation.
In this way the State will have great control of them. If
they go to the north end or some place they are told to stay
* out of they will do their term in the State Farm.
We have a probation department. If there is anybody
that can be helped I think it’s the first offender, the one
.that comes for sentencing the first time, and if they can’t
help the first offender I don’t know who they can help. Both
mothers are here and they both express great concern that
hey can help these girls. I think with the proper psychi-
atric help they may open up their eyes that the easy life
is not the easy life they thought it would be.
It’s most difficult. I know Your Honor will have great
difficulty in what to do. As I say, there is more to the case
than meets the eye. I think the one thing is so important,
that they had enough courage to say they were willing to
testify. That’s always been their position with the police,
and as a result of their statements to the police and their
cooperation with the police which led to the downfall of
Dukes, and of course, Your Honor, without going into great
detail, it’s obvious from looking at the report who the most
culpabi. person is because he had all the instruments with
which to dupe these girls.
v
Both of them, looking at the psychiatric reports Your
Honor can see both are easily led, easily swayed. Like the
71
¥
person that gets involved with narcotics they are all the
same cut, they are easily talked into these things. I don’t
say this is in any way at all, Your Honor, a justification
for what they did, but it certainly should go to mitigation
of punishment. I think the one thing I’m trying to impress
upon Your Honor is that these girls did tell the police they
would testify and they are willing to testify in any other
matters pending against Dukes in which they are involved,
which I think, Your Honor, shows that they have the knowl-
edge that they did wrong and are willing to face what is
coming to them, but part of the rehabilitation comes, Your
Honor, when they first realize that they have done some-
thing wrong and they are willing to stand on their two
feet and face what is to be done with them.
I do think both of them have received a great amount
of publicity and a great amount of anguish. What is to
happen to them? Your Honor can see from the psychiatric
reports and all the other reports. I just hope Your Honor
takes into consideration the fact they have spent some time
in jail. I think the taste of jail has taught them more than
anything else that could have happened. I think they have
learned a lesson and are entitled to one chance to put them
back into society, and get this one chance, see if they can
go straight. I think it might be more of a weapon against
them, a heavy sentence over their head and probation, than
actually sending them to jail or the State Farm. |
THE COURT: Counsel, my: only problem is whether
to send them to jail or the State Farm. What do you want?
MR. ZACCAGNINO: I think, Your Honor, they both
would rather go to jail than State Farm. This way they
can be closer to their parents and all the: other things.
THE COURT: One of them spent sixty days in jail
and the other thirty?
72
MR. ZACCAGNINO: Yes, Your Honor. Andrea spent
thirty-three, and Sandra sixty.
THE COURT: Do you want to say anything, Sandra?
THE ACCUSED BAKER: No, Your Honcr.
THE COURT: Do you want to say anything, Andrea?
THE ACCUSED SEJERMAN: No, Your Honor.
2 eR RR RR,
THE COURT: Sentence in both cases will be one year
4 in jail, the execution of which will be suspended after serving
six months, probation for a period of three years. That will
apply concurrently on all the charges.
73
EXHIBIT A — HABEAS CORPUS — RECORD ON
-APPEAL IN CRIMINAL CASE.
In the Superior Court of the State of Connecticut, Hart-
ford County, May Term, A.D. 1967. John D. LaBelle, State’s
Attorney for the County of Hartford, accuses Charles O.
Dukes of Hartford, Connecticut, of Violation of Uniform
State Narcotic Drug Act, and charges that at the City of
Hartford, on or about the 14th day of March, 1967, the said
Charles O. Dukes did possess, have under his control, sell, or
dispense narcotic drugs, to wit: heroin, an opium derivative
(as defined in Section 19-244 of the General Statutes of
Connecticut), in violation of Sections 19-246 and 19-265 of
the 1965 Supplement to the General Statutes.
JOHN D. LABELLE
State’s Attorney
Amendment to Information
The information is herein amended by adding the fol-
lowing count:
Second Count
And the said Attorney further accuses the said Charles
O. Dukes of Larceny, and charges that at the City of Hartford,
on or about the 14th day of March, 1967, the said Charles
O. Dukes stole various articles of a value in excess of Two
Hundred Fifty Dollars ($250) but less than Two Thousand
Dollars ($2,000), in violation of Section 53-63 of the 1965
Supplement to the General Statutes, and Section 53-65 of
the General Statutes, Revision of 1958.
JOHN D. LABELLE
State’s Attorney
pn eee ae
bk. ial ens siti
74
STATE OF CONNECTICUT
No. 28358
STATE SUPERIOR COURT
V. HARTFORD COUNTY
CHARLES O. DUKES JUNE 16, 1967
HON. RAYMOND J. DEVLIN, JUDGE
John D. LaBelle, State’s Attorney for the County of
Hartford accuses Charles O. Dukes of Hartford of Violation
of Uniform State Narcotic Drug Act at the City of Hartford
on or about March 14, 1967 in violation of Sections 19-246
and 19-265 of the 1965 Supplement to the general statutes
as charged in the information and the said attorney further
accuses the said Charles O. Dukes of Larceny (value in
excess of $250.00 but less than $2000.00) at the City of
Hartford on or about March 14, 1967 in Violation of Section
53-63 of the 1965 Supplement to the general statutes, and
Section 53-65 of the general statutes, Revision of 1958 as
charged in the second count of the amendment to infor-
mation as on file will appear.
To both counts of said information on May 16, 1967
the said Charles O. Dukes pleaded and said that he was
guilty.
Whereupon this court doth accordingly adjudge the
said Charles O. Dukes guilty as charged in both counts o£
said information and thai he be imprisoned in the Connecticut
State Prison for not less than five (5) years and not more
than ten (10) years on the first count and two (2) years on
the second count.
DOMINIC A. DiCORLETO
Cierk
75
Appeal
In the above entitled action, the defendant appeals to
the Supreme Court from:
?
(a) The judgment rendered therein;
(b) The denial by the Court of the defendant’s re-
quest for a change of plea from “Guilty” to one of “Not
Guilty”; \
(c) The Court’s denial of the defendant’s request for a
trial;
(d) The denial of the Court of the motion of the
attorney to withdraw his appearance on behalf of the de-
fendant; and
(e) The denial of the Court of the defendant’s motion
to ob. ain substitute counsel to represent him.
The Defendant — CHARLES O. DUKES
By: ALPHONSE C. FASANO
His Attorney
Filed June 26, 1967.
Request For Finding
The appellant in the above entitled case respectfully re-
quests a finding of facts for an appeal to the supreme court
of errors and submits the draft finding hereto annexed.
The questions of law which he desires to have reviewed
are:
1. Whether the court erred in denying on May 9, 1967
defendant’s request to engage other private counsel.
76
2. Whether the court erred on May 9, 1967 in refusing
to grant counsel of records motion to withdraw.
3. Whether the court erred on May 9, 1967 in refusing
to grant the defendant’s request for a continuance.
4. Whether the court erred on May 9, 1967 in ordering
the defendant to be put to plea in the light of all the
circumstances.
5. Whether the court erred on May 9, 1967 under the
circumstances in ordering the defendant to proceed with the
trial of the case on May 10, 1967.
6. Whether the court erred on May 9, 1967 in ordering
defendant to proceed with the trial of the case on May 10,
1967 when counsel for the accused represented to the court
that he was notified on Monday, May 8, 1967 to present the
accused on May 9,,.1967 and counsel for the accused believed
that the defendant was to be presented for plea.
7. Whether the court erred on June 16, 1967 in re-
fusing permission to counsel of record for the accused to
withdraw as attorney for the defendant in the light of the
attorney’s representations to the court.
8. Whether the court erred on June 16, 1967 in denying
the defendant’s request to withdraw his plea of guilty in the
light of all the circumstances and representations.
9. Whether or not the plea of guilty by the accused
was a voluntary one free of any undue influence in the light
of the disclosure made to the court on June 16, 1967.
10. Whether the defendant was denied his constitutional
guarantees under the Fifth and Sixth Amendments of the
United States Constitution to have the assistance of counsel
of his own choosing for his defense.
77
11. Whether under the circumstances, the defendant has
been denied due process of law as guafanteed to him under
the United States Constitution.
12. Whether the defendant was denied iis constitutional
right to engage private counsel at his own expense and be
given a reasonable opportunity to prepare for trial.
The Defendant
By: ALPHONSE C. FASANO
His Attorney
Filed August 1, 1967.
Draft Finding
PART I
The fellowing facts are found:
* * *
6. When the Court convened, defendant’s counsel ad-
dressed the Court and represented that between the night
of May 8, 1967 and the morning of May 9, 1967, he had
had a number of conversations with the defendant as a
result of which he was going to petition the Court to formally
withdraw from the case because of a conflict between counsel
of record and the defendant. (T. 1-2)
7. Defendant, whom counsel was representing were
in disagreement on a matter which basically goes to the
heart of counsel’s representation of the defendant.
8. Defendant’s counsel further represented to the Court
that in good conscience and in fairness to the defendant,
who had not yet been put to plea and who was to answer
to a very serious charge and with counsel’s difference with
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the defendant on a matter that may go to the heart of repre-
3 senting the defendant, counsel’s motion to withdraw should
be granted. (T. 2)
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3 9. Counsel further represented to the Court in support
of his request to withdraw that defendant may get other
counsel; that because of the very basic position of an advocate
in behalf of a defendant who must believe in the cause in
which he is aatressing himself and there are some things in
which counsel and defendant are in disagreement which may
prejudice the defendant. (T. 2-3)
10. The State’s Attorney stated to the Court that if
other counsel appears, ready to go to trial on May 9, 1967,
he would have no objection, and until other counsel appears,
there is no basis to withdraw and the State was ready to try
the case that day. (T. 3)
11. Defendant’s counsel represented to the Court that
the State’s Attorney called him on Monday, May 8, 1967
and informed him to be ready on Tuesday, May 9, 1967; that
he understood that to mean to be ready to plead on Tuesday
morning. (T. 10-11)
12. Counsel then represented to the Court that defen-
dant either wants to represent himself or get counsel outside
the County in whom defendant can have more confidence.
(T. 11)
13. That the defendant personally stated to the Court
that he did not want local counsel; that he wanted ar op-
portunity to hire outside counsel. (T. 13)
14. The Court stated to the accused that it was late
to bring this matter up; that the State is ready for trial;
that he was notified for trial and so the trial will proceed.
(T. 13)
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79
15. The defendant replied to the Court that he had
not been put to plea. (T. 13)
16. The Court stated to defendant that he will be put
to plea if the trial is to go forward. (T. 13)
17. The Counsel then requested a continuance of one
day in order to give defendant a chance to go over the case,
read the transcript, advise him, get other counsel for him,
or do something to help defendant; defendant’s ccunsel
further urged that he does not feel that he can do justice
to defendant; that that does not mean that defendant cannot
engage other counsel who may hold views different from
those of counsel; that he will try to assist defendant to engage
other counsel because defendant cannot try a case of this
nature by himself. (T. 14-15)
18. The Court stated to counsel that it is not allowing
him to withdraw.
* * *
21. On May 16, 1967, defendant was presented at the
Criminal Session of the Superior Court for Hartford before
the Honorable Sidney A. Johnson, J udge, for a change of plea
to an amendment to the information. (T. of 5/16/67 p. 1)
* * *
23. Defendant entered a plea of Guilty to the charge of
violation of Uniform State Narcotic Drug Act and to an
amended information charging defendant in the second count
- with larceny. (T. 5/16/67 p. 3)
24. The matter was then referred to the probation de-
partment for pre-sentence report and continued to J une 2,
1967. (T. of 5/16/67 p. 3)
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25. On June 2, 1967 the pre-sentence report was not
ready and the matter was continued to June 16, 1967. (T.
of 6/2/67 p. 1)
26. On June 16, 1967, defendant was presented for
sentence before the Honorable Raymond J. Devlin, a Judge
of the Superior Court at the Superior Court for Hartford
County and with the defendant appeared Peter J. Zaccagnino
as his counsel.
27. Attorney Zaccagnino addressed the Court stating
that defendant had advised him that he has other counsel
from New Haven; that he did not wish to represent defendant
if defendant had no confidence in him; (T. of 6/2/67 p. 1);
that Attorney Fasano was tied up in Court and is requesting
a continuance of one week; that in accordance therewith, |
Attorney Zaccagnino moved for a continuance to Tuesday;
that in view of the serious nature of the charges, defendant
should have counsel of his own choosing (T. 6/2/67 p. 1);
that defendant stated to Attorney Zaccagnino that he did
not have confidence in his handling of the matter and that
he wanted Attorney Fasano to enter the case. (T. 6/16/67
pp. 1-2)
28. The Court then inquired what other counsel could
do that present counsel could not do. (T. 6/16/67 p. 2)
29. The defendant addressed the Court and stated that
he was most interested in justice in this case, that he had
spoken to about twenty attorneys in Hartford who were not
interested in entering the case to represent the defendant
and that he would get more justice by hiring out of town
counsel. (T. of 6/16/67 p. 3)
30. Attorney Zaccagnino then informed the Court that
defendant wanted to change his plea; that that is the reason
he hired new counsel; that while this is the first heard of
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81
it, he did suspect it because of the problem when he did
enter his plea; that maybe he had been a little forceful
with the defendant. (T. of 6/16/67 pp. 4-5)
3i. The Court then asked defendant what he had to
say and defendant stated that he would like to change his
plea; that at the ‘ime he entered his plea, he had just come
out of the hospital; that he had been unconscious fur three
days; that on the day that he entered his plea, he did not
realize at the time actually, to what he was pleading; that
since then, he has been a patient, taking mental examinations
at the Hartford Institute of uiving and that the psychiatrist
had informed him that he needed psychiatry treatments
(T. of 6/16/67 p. 5)
32. The Court denied the defendant’s request to change
his plea.
33. Defendant’s acting counsel, Peter Zaccagnino repre-
sented to the Court that at the time defendant changed
his plea, other pending cases were going to be disposed of
on the same basis consecutive or concurrent sentences would
be imposed; that he had discussed with defendant that it
would be in his best interest to change his plea because he
would then have no other pending matters to confront. (T.
6/16/67 p. 6)
34. The Court then inquired of Dukes what he had
to say and the defendant stated that he was flabbergasted;
that he was puzzled; that he is not guilty of the charges.
(T. of 6/16/67 p. 7)
* * *
PART III
The following rulings were made:
44. On Mzy 9, 1967, Attorney Peter J. Zaccagnino, who
had entered an appearance on behalf of the defendant,
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82
Charles O. Dukes, moved for permission to withdraw as
counse! for the defendant and the following took place:
MR. LABELLE: This is a matter for trial, Your Honor.
May a Jury panel of thirty-five be ordered? Counsel wishes
to discuss some matter with me, I don’t know whai it is,
but while recess is ordered may a jury panel be called.
THE COURT: Do you want them called down im-
mediately?
MR. LABELLE: If they get one, as soon as we get one
we'll know what we are going to do.
THE COURT: Very well, panel of thirty-five may be
requested. There will be a short recess.
LATER:
MR. ZACCAGNINO: If it please the Court, Your Honor,
on this matter that is now pending before the Court, State of
Connecticut versus Charles Dukes, between last night and
this morning, Your Honor, we have had a number of conver-
sations with Mr. Dukes, and I think that I am going to petition
the Court to formally withdraw from this case because there
happens to be a slight conflict between my client and my-
self, and it’s not financial, Your Honor, it is one basically
that goes to the heart of my representing him, and I think,
Your Honor, in fairness to the defendant, he hasn’t been put
to plea as yet, and this case has just been bound over three
or four weeks ago. it’s a very recent arrest, that in good
conscience and in order for this man which is a very serious
charge, as Your Honor knows, that I think — he tells ine
: this morning that he wants to represent himself and he so
4 wants to represent that to the Court, and in the recess I
} told him the foolishndss of his ways, to try a jury case by
| himself.
83
However, I don’t know what his opinion is right now,
but he also tells me he may get additional counsel. I don’t
know what the Court’s position is on that. I’m going to ask
Your Honor, if Your Honor wants me to put it in writing
I will, to withdraw. The defendant is here, and, Your Honor,
he has full knowledge of thi: and wants to represent to the
Court that is so. We do have this difference that may go
to the heart of my representing him.
I know Mr. LaBelle is opposing my withdrawing at this
date, but as I say to the Court the man has not even been
put to plea as yet and it seems to me that the motion should
be granted because of the very basic position of an advocate
in behalf of a defendant who he must believe in the cause
in which he is speaking for in many ways and there are
some things here that we have a disagreement on with re-
spect to the matter which may in some way prejudice the
defendant. I just think he should have at least -— the trial
should be conducted in such a manner where I don’t feel as
his attorney perhaps something he is doing is wrong. That
is the whole issue, if Your Honor please. Not wron, with
respect to the arrest, I’m not talking about that, but actually
the trial, the conduct of same.
MR. LABELLE: Well, if other counsel appears, Your
Honor, ready to go to trial today, I have no objection to the
withdrawal. Until other counsel appears it seems to me there
isn’t any basis to withdraw. We are ready to try the case
today. (T. of 5/9/67 pp. 1, 2, 3)
Now the next thing is, Your Honor, that the defendant
now wishes to address the Court, Your Honor, on the matter
which I spoke to Your Honor about, and I would just like to
say this to the Court —
|
THE COURT: He hasn’t been put to plea.
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MR. ZACCAGNINO: No, he hasn’t been put to plea
yet, Your Honor, and that is the issue here is about my
motion to withdraw, that I understand Mr. LaBelle’s position is
the reason for his particular position *-1t I also understand,
Your Honor, «his defendant’s position } cause it’s an unusua
situation, Your Honor, on a case that is so new that the
same day of plea that you go to trial. I agree Mr. LaBelle
called me on Monday. He said he called me e-rlier, I’m
sure he did. If he said he called me he must have called
my office. I wasn’t there. And he told me to be ready but
it’s an unusual circumstance when they tell me to be ready
and the man hadn’t pled, I took it he’s got to be ready
to plead on Tuesday morning. I knew it was going to be a
trial and so advised the defendant. I’ve been waiting to
address the Court because the Court has been busy on other
matters. He tells me he either wants to represent himself
or get counsel outside of the county that he can have more
confidence in for some reason or other. Now I don’t know
what the reason is but he would like to address the Court
before he is put to plea so he has the right to counsel. If
he is not going to have that right of other counsel to get
somebody to represent himself then I think, Your Honor,
whatever he wants to say I’d like to have him address the
Court because if Your Honor grants my motion he’ll be
without counsel for the moment. Do you want to address
the Court?
THE ACCUSED: Judge, Your Honor, I’d like to ask
the Court —
THE COURT: I can’t hear you.
THE ACCUSED: I’d like to ask the Court severai
questions.
THE COURT: I still can’t hear you.
MR. ZACCAGNINO: Speak up.
85 *
THE ACCUSED: I’d like to ask the Court several
questions to be permitted. Number one, I would like to ask
for the prosecutor of this particular case to withdraw from
the case because if I try the case, I intend to cross-examine
him concerning this case and I’m afraid ii's going to cause
a conflict of interest. I don’t think it would be fair to the
accused.
MR. LABELLE: If Your Honor please, this man is not
going to run this court as long as I have anything to say to
the Court about it. He knows that this case is ready to go
to trial and counsel also knew this as long ago as at least a
week because his office was notified by my office on several
occasions during the middle of last week, Wednesday and
Thursday.
Now if this man wants to try his own case let him try
his own case and let counsel sit with him and advise him
if he wants to try his own case. And if he has other counsel
he wants to get in place of Mr. Zaccagnino then Mr. Zac-
cagnino can leave but as far as the State is concerned we
are ready to go to trial and this story about him going to
cross-examine me in this case is news to me. I don’t intend
to be a witness so I don’t think he’s going to cross-examine
me.
THE COURT: Well, we’ll take that matter up if and
when we try the case. What is your next point?
THE ACCUSED: Number two, Your Honor, with local
counsel I am afraid, well, I know there is going to be re-
sentment. I have reasons to believe that through conver-
sations, and I’d like the opportunity to hire an attorney fror
another state that don’t have no knowledge of the case, of
this specific case. Otherwise I feel as though that is the
reason that I intend to try my own case in the event that
the Court doesn’t grant it.
a enanaas —
86
THE COURT: You wish to try the case yourself, is
that it?
THE ACCUSED: If the Court doesn’t grant me op-
portunity to hire an attorney out of the State, sir, because
I don’t want no resentment upon any attorneys, local at-
torneys.
THE COURT: Well, at this time it’s rather late to
bring that in. The State says it’s ready for trial. You were
notified for trial so we will proceed with the trial. Whether
or not I will allow counsel to withdraw is another thing.
THE ACCUSED: Yes, sir, I haven’t even been put to
plea on this.
THE COURT: Well, you’ll be put tc plea if we go
forward.
THE ACCUSED: Well, that’s all at the present time.
Thank you. (T. of 5/9/67 pp. 10, 11, 12, 13)
* * *
THE COURT: Well, I think what we will do is present
him for plea, give him the opportunity, then we won’t pre-
: sent any evidence today but we'll pick a jury today and I
< will hold you in attendance, counsel.
MR. ZACCAGNINO: If Your Honor pleases, is Your
Honor instructing me that —
i THE COURT: I’m not allowing you to withdraw at this
$ time.
MR. ZACCAGNINO: At this time I don’t know whether,
Your Honor, it meets with this man’s approval, because it
may Your Honor —
87
THE COURT: He says he wants to defend himself.
MR. ZACCAGNINO: Yes, Your Honor. I think he does
want to defend himself as opposed to me representing him
in the matter. I don’t know. If it meets with his approval
I suppose he has a right to defend himself.
THE COURT: He’ll be entitled to ask questions of the
jurors, of the panel, if he wishes, and then we will go to
trial on the factual issues tomorrow. Would you like a short
recess?
MR. ZACCAGNINO: Yes, Your Honor. Excuse me. I
think it might be helpful.
(Short recess. )
LATER:
THE COURT: First, do you want to present the person
for plea, counsel?
MR. LABELLE: Yes, May he be put to plea, Your
Honor.
THE COURT: Put him to plea and election.
MR. ZACCAGNINO: We'll waive the reading of the
information.
MR. O’BRIEN: Charles O. Dukes, how old are you?
THE ACCUSED: Thirty-two year old.
MR. O’BRIEN: Charles O. Dukes, the State of Connect-
icut charges you with violation of the Uniform State Narcotic
Drug Act. How do you plead?
THE ACCUSED: Not guilty.
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88
MR. O’BRIEN: Do you elect a trial by Court or by
Jury?
THE ACCUSED: By jury of twelve.
THE COURT: Very well. (T. of 5/9/67 pp. 1, 2, 3, 10,
11, 12, 13, 15, 16)
‘ * *
45. On May 9, 1967, the defendant moved that the
matter be continued to the following morning and the fol-
lowing took place:
MR. ZACCAGNINO: If Your Honor pleases, I just
might like to say one thing in conclusion. I think this man
has other counsel besides myself involved in another matter,
and I realize that the Court is being tied up, but I think in
view of the st ziousness of the matter, in view of my position,
I was going .o ask for a continuance till tomorrow morning
and two things may occur.
One, it may be that my position, I might be able to
convince my client of. If I can’t at least he will have over-
night to get counsel. I think it’s not an unreasonable delay
of the court because the issues involved are far more
serious than any inconvenience in this instance to the court.
I realize this is inconvenient. I realize Mr. LaBelle told me
this but between last night and this morning a great change
of position has taken place between my client and I in the
matter so in view of that this is something we didn’t plan to
delay the court, it just came about and I know one thing
being part of the case that I can’t see any justification,
Your Honor, for not allowing that time till tomorrow morning
because it may be if it doesn’t develop like I would like it
to develop at least this man will have a chance to go over
this case, read the transcript with me, I’ll advise him, get
othe~ counsel here or do something to help him. I don’t hold
any plea for delay of the court. I sat here for three days
89
waiting for the court to be open to get to this point. I’ve
been here Tuesday, Wednesday and Thursday. I didn’t do
anything in my office all three days. I say to Your Honor
I have been here. I don’t think I have unduly delayed the
court and I don’t think this man has. I think we have come
now to the position where Your Honor has to decide that
with respect to this because I don’t feel Your Honor that
I can do this man justice in this particular issue and that
doesn’t mean that he can’t get other counsel to feel differently
than I do. I think he should have at least tomorrow morning.
I don’t think that is too much delay. I don’t see the great
pressure of one day when a man hasn’t been put to plea.
It’s the first case I have had in this court where the man
has been put to trial on the same day of plea. I do think it
wouldn’t inconvenience the court. I feel very uneasy about
the situation 1 am presenting to the court, Your Honor, and
I don’t know that it might not resolve itself. I don’t think I
can resolve it but I do feel he should have this overnight.
If he can’t get other counsel I’ll assist him in trying to get
him other counsel because I don’t think a man can iry a
case of this nature by himself.
MR. LABELLE: Of course that is a matter of the court’s
discretion, Your Honor. We are prepared to go forward today
and the court might wish to consider in deciding this matter
whether or not a jury if it is going to be a jury trial could
be picked and testimony started tomorrow.
* * *
46. On June 16, 1967, the defendant through Mr. Zac-
cagnino, his counsel of record, stated to the Court that the
defendant had advised counsel of record that he had engaged
other counsel to represent him and that other counsel was
elsewhere engaged and defendant requested a continuance
for one week. The Court denied the motion and the following
took place:
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MR. LABELLE: 28358, Charles Dukes.
MR. ZACCAGNINO: If Your Honor please, prior to this
man being sentenced in this particular matter, I discussed
this momentarily with Mr. LaBelle. Mr. Dukes has advised
me that he has other counsel from New Haven; Mr. Fazzano,
who is representing him, and I don’t intend in any way to
delay the Court. I thought, if he has other counsel, I have
no objection to getting out. In fact, I do not want to repre-
sent Dukes if he doesn’t have any confidence in me. But
Fazzano was tied up, Attorney Fazzano was tied up this
morning and is requesting a continuance for a week, and I
told Mr. Dukes the most I would do for him would be to
put the motion to the Court and suggest it be continued until
Tuesday. I think this, Your Honor, that if he has other
counsel and because of the serious nature of the charges,
that he should have counsel of his own choosing. If he has
no confidence in me, I don’t resent it personally. I understand
his position. But I do feel that this is a very serious situation,
and Mr. LaBelle wants to proceed this morning with sen-
tencing. I don’t quarrel with Mr. LaBelle on that point. I
want to state my position te the Court so that Your Honor
will know what his position is. He told me this morning
that he felt that he didn’t have confidence in my handling
the matter, and he wanted Mr. Fazzano to come in, if that
is the situations=Your Honor, as I say, I don’t have any
personal feeling on it, but I suppose there can be no — you
knew, I can’t represent a man that — or if he doesn’t have
confidence in me is what I want to say. If he feels he wants
Attorney Fazzano, I would like to state to the Court I have
no objection; and as a matter of fact, I welcome it. I don’t want
to be dilatory because this man comes up this morning and
he tells me he has another lawyer, but I feel it is so serious
I don’t know what to tell Your Honor except to tell Your
‘Honor that I should be relieved as counsel when Mr.
Fazzano —
91
THE COURT: What could other counsel do that your
couldn’t do?
MR. ZACCAGNINO: I don’t know, Your Honor; but I
do say this: That it’s become a situation, Your Honor, that I
can’t quite understand either, and he feels, and I stated his
position to Your Honor, so that Your Honor knows. And if
he has anything he wants to say to your Honor, I suppose he
ight to say it to you. I have said what I have got to say.
THE COURT: What do you want to say, Dukes?
THE ACCUSED: Well, I was —
THE COURT: I can’t hear you. Speak up.
THE ACCUSED: I was most interested in justice in
this case, and I spoke to maybe about twenty attorneys from
Hartford, and nobody seemed to want to take the case, repre-
sent me, and it would be more justice to get more justice by
hiring an attorney out of town, which I brought this out be-
fore certain reasons.
THE COURT: Weil, you have a good attorney now.
What is the objection to that?
THE ACCUSED: Well, I would rather have an attorney
oui of town for certain reasons of the case. Your Honor, sir —
THE COURT: Well, I think we ought to go on with
it today.
MR. LABELLE: There. has been no appearance.
THE COURT: No appearance been filed.
MR. LABELLE: It is my understanding from Mr. Faz-
zano, who called my office this morning, called one of the
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92
detectives, that he was just contacted last night. He doesn’t
know Dukes or anything about the cases. Now, no appearance
has been entered. It is simply a disposition. It isn’t a trial,
and I don’t see there is any reason for delaying it further.
He’s had plenty of opportunity when he was put to plea in
this matter, and the court specifically asked him before he
accepted the plea whether or not he was satisfied with his
counsel. And at that time the plea was accepted, he indicated
to the court that he was. I ask that the sentence be imposed
in 28358.
THE COURT: The sentence will be imposed.
(T. of 5/16/67 pp. 1, 2 3)
a * *
47. On June 16, 1967 before the Honorable Raymond J.
Devlin, a Judge of the Superior Court, the defendant moved
for a change of plea which the Court denied and the following
took place:
MR. ZACCAGNINO: He tells me now, Your Honor, he
would like to change his plea, and I thought Your Honor
would like to know that. I don’t suggest that to the Court. He
suggests it, and that is the reason he hired new counsel, and
this comes as a surprise to me. This is the first I heard of it,
but I had a suspicion, Your Honor, that this may take place
because of the problem when he entered the plea. I was may-
be a little forceful. However, Your Honor, it was all dis-
cussed with him, and he does feel, Your Honor, that the
reason he went out of the county was because no lawyer would
properly represent him in this matter in this county. I don’t
believe that, because I put a lot of hours in this case. However,
he does tell Your Honor now that he does want to change his
plea, and he better say it himself, because Your Honor better
talk to him about it.
93
THE COURT: What do you want to say?
THE ACCUSED: Yes, Sir; I would like to change my
plea, Your Honor. At the time I plead, I j ust came out of the
hospital, I think it was a day, and I was unconscious for
three days, and I didn’t realize at the time actually what I
was pleading to. And since then, I am a patient, taking a
mental examination at the Hartford Institute of Living and
also Dr. Harold, a heart specialist, and she said that, the
psychiatrist said that I needed psychiatry treatrnents.
THE COURT: I will deny the motion.
MR. LABELLE: Your Honor has his record here, and
I would simply say he’s, so far as I am aware of, been involved
in criminal activities in this county for 2 substantial period of
time; and on the case, I would Suggest by way of disposition
on the first count not less than five no more than ten years
in the State’s Prison. On the second count, two years, making
an effective sentence of not less than five no mere than
twelve years.
THE COURT: Aill right.
MR. ZACCAGNINO: Your Honor, it puts me at a slight
disadvantage, but I will tell this to the Court: That at the time
that he changed his plea, Your Honor, that some of these
cases, Your Honor, were very tenuous at best, and it is my
understanding that all of the matters were going to be dis-
posed of on the same basis, consecutive or concurrent sen-
tences would be imposed. I think this, Your Honor, that to
sentence this man on one of these counts and for all of them,
the reason, ! induced him, I didn’t induce him, I discussed with
him his best possible interest to change his plea because he
had so many matters pending. Now, proceeding on two mat-
ters, and all these matters are pending, I feel that if Your
Honor does accept the recommendation, which is the five to
a f
gy
94
ten on the sentence, the minimum or the maximum on the
narcotics case, he will have great additional time, and I don’t
know what to tell Your Honor other than the fact I wish
Your Honor would make a note for the record, in the event
I can talk to Dukes, that Your Honor does have knowledge
of these other situations, these other crimes which are of a
similar nature and of a weaker nature, and I would say to
Your Honor the only thing in defense of Dukes, I realize his
record 1s bad and his activities have been bad; however,
when he changed his plea and entered his plea of guilty, he
saved the State considerable cost and expense and time, be-
cause I think about five or six cases pending against him, they
only had one or two cases that were of a strong nature, and
I do think, Your Honor, that I feel having been his counsel,
that I should make this fact known to Your Honor that it was
a matter that Your Honor would normally, under normal cir-
cumstances, in a situation like this, enter concurrent sen-
tences, if, in fact, it was so recommended by the State’s At-
torney; but since he doesn’t want to plea to these other mat-
ters, I would like to make that note for the record, because I
feel at some later date he may have to come back to this court
and see Your Honor or see another judge on these other mat-
ters now pending before it.
SS RRA Mr FR, BPD ca ALE AEA PRCT DA li SRD I
el ed
mae *%
THE COURT: What do you want to say, Dukes?
Pa ERI Rie Ie i
THE ACCUSED: I am rather flabbergasted really, be-
cause I didn’t expect this this morning. It just puzzles me. I
am not guilty of the charges. I am not guilty.
sO cat
4 (T. of 5/16/67 pp. 4, 5, 6, 7)
; PART IV
* * *
The defendant made the following claims:
48. On May 9, 1967, before the Honorable Sidney A.
Johnson, a Judge of the Superior Court, the defendant’s re-
95
quest for the withdrawal of counsel of record on behalf of
the defendant to be replaced by additional counsel of the de-
fendant’s choice at the expense of the defendant because there
existed a conflict between cqunsel of record and the defendant
which goes to the heart of the representation of the defen-
dant by counsel of record.
49. That the disagreement between counsel of record
and the defendant was one which may prove prejudicial to
the defendant if counsel of record is not permitted to with-
draw his appearance.
50. That the defendant should be given an opportunity
to engage other counsel and the matter continued for that
purpose in view of the seriousness of the charges and in view
of the fact that there would be no unreasonable delay or any
inconvenience to the Court and further, in view of the fact
that counsel of record understood that he was to present the
accused for plea and \ot for trial.
51. That it was unreasonable to expect the defendant to
proceed with the trial on the day he entered his plea in the
light of all the circumstances and the seriousness of the
charge.
52. On June 16, 1967, counsel of record requested and
moved for a withdrawal of his appearance because the defen-
dant had advised counsel of record that he had engaged other
counsel who was not able to be present that morning due to
another engagement and requested a continuance of the mat-
ter to the following Tuesday; that because of the serious na-
ture of the charges, the defendant should have counsel of his
own choosing and a reasonable continuance.
53. That on June 16, 1967 the defendant moved for a
change of piea urging that when he entered his plea, he was
forcefully prevailed upon to do so; that he had just come out
96
of the hospital where he had been confined in an unconscious
condition for three days; that he did not realize at the time
the plea was entered, to what defendant was pleading; that
he is a patient taking mental tests at the Hartford Institute
of Living and that he was in need of psychiatric treatments.
The Court denied each of the defendant’s motions and
overruled his claims of law.
Defendant,
By ALPHONSE C. FASANO
His Attorney
Filed August 1, 1967.
Finding
First
The following facts are found:
1. The accused was arrested in Hartford and charged
with a violation of the Uniform State Narcotic Drug Act and
receiving stolen goods.
2. After a hearing in probable cause on April 17, 1967,
the defendant was bound over to the Superior Court on the
narcotics charge and on the receiving charge. (Tr. pp. 1, 2)
3. The law firm of Zaccagnino, Linardos & Delaney ap-
peared on behalf of the defendant in the Superior Court.
4. Counsel for the defendant was notified on Monday,
May Ist, that the case was ready for trial, and was advised
to be ready for trial. (Tr. p. 10)
5. The defendant knew that the case was ready for trial,
and his counsel, Peter J. Zaccagnino, Jr., was present in court
|
97
awaiting trial on Tuesday, May 2nd, Wednesday, May 3rd,
and Thursday, May 4th. (Tr. p. 14)
6. The case was reached for trial on Tuesday, May 9,
1967. (Tr. p. 13)
\
7. On May 9, 1967, John D. LaBelle, State’s Attorney
for Hartford at the Superior Court for Hartford County at
Hartford, before the Honorable Sidney A. Johnson, a Judge
of the said Superior Court, presiding at the Criminal Session
of said court, stated to said court that the case of State v.
Charles O. Dukes, case no. 28358 was ready for trial and re-
quested a jury panel of 35 be ordered. (T. 1)
8. Charles O. Dukes, the defendant, was represented by
Peter J. Zaccagnino, Jr., who was acting as defendant’s attor-
ney (T. 1)
9. Following the request of the State’s Attorney made
to the court for a jury panel, the State’s Attorney advised the
court that the defendant’s counsel wished to discuss some
matter with him, the nature of which he was not aware. (T. 1)
10. The court ordered that a panel of 35 jurors be sup-
plied and declared a recess.
11. Following the recess, the court came into session
(T. 1)
12. When the court reconvened, counsel for the defend-
ant, Peter J. Zaccagnino, J r., told the court that he thought
he was going to petition the court to withdraw from the
case since there happened to be a slight conflict between him
and his client because his client told him he wanted to repre-
sent himself. (Tr. p. 2)
13. Counsel also told the court that his client had tcld
him that he might get additional counsel. (Tr. p. 2)
_—
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ict ca echt Bh skaitesiy- aba te
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:
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98
14. Thereafter, counsel argued to the court concerning
his Motion to Quash the information, his Motion for a Bill of
Particulars, and his Motion to Suppress the evidence. (Tr.
pp. 6-10)
15. After the motions were argued and decided, the de-
fendant addressed the court and told the court that he was
afraid that there was going to be resentment if he had local
counsel. (Tr. p. 12)
16. The defendant then told the court that he would
like the opportunity to hire an attorney from another state.
(Tr. pp. 12, 13)
17. The defendant told the court that if he did not have
an opportunity to hire an attorney from another state, that
he would then like to try his own case. (Tr. p. 12)
18. Counsel for the defendant then requested a contin-
uance of the trial until the next day, May 10th. (Tr. pp. 13,
14)
19. Thereafter, the defendant was put to plea and
pleaded not guilty and elected a trial by a jury of twelve. (Tr.
p. 16) :
20. Counsel requested the court to continue the case to
May 10th, the next day, in order for the defendant to get
other counsel or to represent himself. (Tr. p. 17)
21. Counsel also advised the defendant and the defend-
ant acknowledged that he understood that the case was to
go forward for trial the next day, May 10th. (Tr. pp. 17, 18)
22. When the court continued the case to May 10th, the
court asked the defendant if he understood that he was tec
\\proceed to trial the next morning and the defendant told
the court that he understood that. (Tr. p. 18)
99
23. On May 10, the case was continued to May 16, for
trial. (Tr. p. 1)
24: On May 16, the defendant appeared with Attorney
Robert C. Delaney, a member of the firm of Zaccagnino, Lin-
ardos & Delaney, and requested permission of the court to
change his plea to the information. (Tr. pp. 1, 2)
25. The court was requested by the State’s Attorney to
make inquiry of the defendant with respect to representation
by counsel since there had been prior indication that counsel
had asked to withdraw from the case. (Tr. p. 2)
26. Thereafter, the following occurred:
THE COURT: Well now, Mr. Dukes, I want to be sure
that everything is in order here. I was present the other day,
of course, when you were presented and the problem came
up about an attorney. Now I want, now Mr. Delaney is here,
are you fully satisfied with the services he is rendering you,
Mr. Dukes?
THE ACCUSED: Yes, sir.
THE COURT: You are. And now you know, of course,
Mr. Dukes, that — you know of course that the State of
Connecticut has the burden of proving you guilty on the
charge and you are free to go to trial but you still wish to
change your -plea, is that correct?
THE ACCUSED: Yes, sir.
THE COURT: And you know the probable conse-
quences of it? |
THE ACCUSED: Yes, sir.
THE COURT: Very well, and no one has induced you to
aerate TET fi
100
do this, influenced you one way or the other? You are doing
this of your own free will?
THE ACCUSED: Yes.
THE COURT: Very well then. We will accept the
change of plea.
ASSISTANT CLERK JOEL ELLIS: Mr. Dukes, how
old are you?
THE ACCUSED: Thirty-two years old.
MR. ELLIS: Do you waive reading of the infomation?
MR. DELANEY: We will waive the reading.
MR. ELLIS: To the charge of violation of Uniform
State Narcotic Drug Act what is your plea?
MR. DUKES: Guilty, sir.
MR. LABELLE: May we have the plea to the amend-
ment also?
MR. ELLIS: Do you waive reading of the amended —
MR. DELANEY: Waive reading of the amended in-
formation.
MR. ELLIS: In the amended information you are
charged in the second count with larceny. What is your plea
to that count?
THE ACCUSED: Guilty, sir.
THE COURT: Both pleas are accepted.
MR. LABELLE: May these matters be referred to the
probation department for pre-sentence report, your Honor.
101
THE COURT: June 2nd.
MR. LABELLE: And may they be assigned disposition?
THE COURT: They’ve got quite a few, I understand,
for the 26th.
&
MR. LABELLE: May it be Jue 2nd. .
THE COURT: June 2nd, and continued under the same
bond. °
MR. LABELLE: The bond in the case is twenty thou-
sand dollars.
THE COURT: Very well. Pre-sentence investigation i-
ordered, sentencing for June 2nd on the same bond.
MR. DELANEY: Thank you, your Honor.
27. On June 2, 1967, the defendant appeared in court
before the Hon. Raymond J. Devlin, end Attorney Zaccagnino
appeared with the defendant on that day. (Tr. p. 1)
MR. ZACCAGNINO: If your Honor pleases, this was
set down in the other courtroom before J udge Johnson this
morning, and Mr. Capshaw is still working on the report, and
they tell me, I find through Dukes, they need another two ‘
weeks in which to finish it. Mr. LaBelle asked me to have the ‘
case called here because Judge Johnson is handling divorce 3
matters.
:
} 28. The following occurred:
|
I would also say that all the matters we have asked for con-
solidation haven’t come in, so we'd need a continuance for
that purpose anyway.
MR. SILVESTER: June 16th, if your Honor pleases,
under the same bond?
<n - camel lt
NT TUTE aN
ee ee ee Ea baa ao a O
$ nad eae ee
i
‘
102
THE COURT: June 16th. Same bond.
MR. ZACCAGNINO: Thank you, your Honor.
29. On June 16, 1967, the defendant was presented for
sentence before Hon. Raymond J. Devlin. (Tr. p. 1)
30. At that time Attorney Zaccagnino appeared with
the defendant. (Tr. p. 1)
31. The defendant indicated to the court that he had
consulted otker counsel. (Tr. p. 1)
32. Other counsel had been contacted the night before.
(Tr. p. 3)
33. No other counsel had entered any appearance on
behalf of the defendant. (Tr. p. 3)
34. The defendant did not tell his own counsel about
consulting other counsel until the morning of June 16. (Tr.
p. 2)
35. No other counsel filed any appearance on behalf of
the defendant until June 22, 1967. (File)
36. The defendant requested permission to withdraw
his plea of guilty which request the court denied. (Tr. p. 5)
37. The defendant had not told his counsel that he
wished to change his plea until he made the request to the
court. (Tr. p. 4)
38. No exception was taken to the denial. (Tr. June 16)
39. The defendant requested a continuance until the
following Tuesday whicl: the court denied. (Tr. p. 3)
40. No exceptic:: was taken to the denial. (Tr. June 16)
_
103
41. During the period between May 16 and June 16, the
defendant had requested that charges against him from other
counties be consolidated in Hartford County under General
Statutes, § 54-17a. (Tr. p. 1; pp. 4, 6, 7; file)
42. No evidence was offered by the defendant in con-
nection with any of his motions. (Tr. June 16)
43. The defendant did not offer any medical evidence to
support his motion to change his plea and no medical evi-
dence was attached to the probation report although th > pro-
bation officer requested the defendant to furnish medical
reports. (probation report)
44. The defendant did not make any motion in arrest of
judgment before sentence was imposed or at any other time.
(file)
45. The uefendant did not make any motion to open the
judgment or to vacate the sentence. (file)
46. The probation report is hereby made a court exhibit.
47. The probation report was delivered to counsel for -
the defendant and to the court prior to June 16. (probation
report )
48. The probation report had been read by the court
prior to June 16.
49. The defendant is experienced in criminal matters
and is experienced in court appearances to answer to crim-
inal charges. (probation report and criminal record; Tr. pp.
5, 6)
50. There were several other criminal charges pending
against the defendant in Hartford County, New Haven County
and Fairfield County at the time he was sentenced. (probation
report and criminal record)
194
51. The defendant was involved in narcotic drug traffic ©
in Hartford. (probation report)
52. The case was submitted to the court for sentencing
on an agreed reu.mmendation. (Tr. pp. 4, 5, 6; Tr. pp. 1, 2)
53. The defendant was sentenced to not less than 5 nor
more than 10 years on the narcotics count and to two years
on the larceny receiving count.
54. The deferdant was free on a bond of $20,000 during
all the proceedings in this case. (probation report, file, Tr.
p. 4)
55. Other than the defendant’s request to change his
plea again, no complaint was made to the court about what
had previously occurred before Judge Johnson.
Second
The following conclusions have been reached:
56. The defendant before June 16 at the time the case
was ready for trial had already changed his plea from not
guilty to guilty.
57. The change of plea to guilty on May 16 was the
free and understanding expression of his own wishes.
58. The defendant had from May 16 to obtain other
counsel and to notify the court of his desire to change
counsel.
59. The defendant had told the court on May 16 on
specific inquiry that he was satisfied with his counsel.
60. The defendant appeared in court on June 2, and
did not in any way indicate to the court that he desired to
change counsel or that he desired to change his plea: -
105
61. The defendant did not act in good faith with re-
spect to seeking other counsel.
62. The defendant did not notify the court between May
16 and June 16 that he desired to change his plea.
63. His counsel was surprised on June 16, at the de-
fendant’s request to change his plea. (Tr. p. 14)
64. On June 2 the co
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