# Appendix — Dukes v. Warden, Conn. State Prison > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0008%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1972 - **Citation:** 406 U.S. 250 ## Text 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 “~w 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 ¥ s ¢ = Se MOR NE TRI ER RETNA IRA TONES BMT HA NoR YT REET SN 2 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 . & Fs 2 & Fa Ps % a 5 %. 5 f € 10 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 PUTS PES VE SLATE ENE AG SO TE ME TRE Oe OR ore Cee en | eee TFs Mart 12 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. - a Bisasws Seis 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 se fo Ne THE ACCUSED: Judge, Your Honor, I’d sike io ask the Court — ‘e 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. Pal ays a e. Be = i Ss Be a 5 we Fe Pid o& £. al st be e x . 3 a & 8 & gy é : 5 [ | => &. we 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 pect = £ Rots . a 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 tac tea wee aaa ha , sg Po oP = " Ran ia EE a ae RR RE 7 6K 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 4 Me Ps % Wie > 24 sche pao uta nasal ae Aa at ile a iat aS at ASAE Oa = 1) . haa F Coe Ake ae 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 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 court was advised that the defendant was awaiting transfer of charges from other counties that he had requested be consolidated, and the defendant knew that under the statute allowing this, the defendant is re- quired to plead guilty to all the charges from all the counties. 65. The court in its discretion may allow a change of plea when it is fair and just to do so. 66. No credible evidence was introduced by the de- fendant to support the granting of a change of plea. 67. The defendant at the time of sentencing requested to change his plea for the purpose of delaying sentencing. 68. It would not be fair and just under all the circum- stances to allow the defendant again to change his plea, having in mind the seriousness of the offenses, the conduct of the defendant, and the protection of society. 69. At the time the plea of not guilty was changed to guilty the court before accepting the plea carefully ascer- tained that the plea of guilty was voluntarily made, without any mistake by the defendant, allowed an amendment to be filed with the defendant’s consent, and determined that the defendant was fully aware of the possible consequences of his guilty pleas. 70. The sentence imposed was within the limits fixed by the statutes for the offenses charged. 106 71. Defendant made no claims of law. Fourth 72. The probation report is made a part of the finding and may be used in argument before the Supreme Court with- out being printed. DEVLIN, J. JOHNSON, J. Filed February 27, 1968. musta by Assignments of Error 1. In finding the facts set forth in Paragraphs 4, 5, 13, 22, 23, 41, 49 and 50 of the Finding without evidence. 2. In finding the facts set forth in Paragraphs 33, 34, 35, 37, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 53, 54, and 55 of the Finding because such facts ate not material facts relevant to the issues raised by tnis appeal relating to the denial of the rights of the appellant uader Articles Fifth, Sixth and Fourteenth, Amendments to the Constitution vf the United States. owe eer ater eet » ine é esa euaenisil idk Rel 13; 3. In finding the facts set forth in Paragraphs 43, 46 through 51 and 54 of the Finding because such facts are based upon a probation officers presentence investigation and are immaterial and irrelevant to the rulings of the Court made on May 9th, May 10th and June i6th, 1967 and because the function of such probation officer’s presentence investi- gation report is to aid the Court in the imposition of a fair and just sentence after all legal rights of an accused have been exhausted or determined. _ Lint i tet A PT re a pron cee LOD IET ASL METI, ney 107 4. In refusing to find the material facts set forth in Para- graphs 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 2i, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33 and 34 of the Finding which were admitted or undisputed. 5. In reaching the conclusions stated in Paragraphs 57, 58, 61 and 63 to 69 inclusive of the Finding. 6. In reaching the conclusion and stating that the defen- dant made no claims of law as stated in Paragraph 71 Part III of the Finding. 7. In refusing to find and make part of the record Para- graphs 44 to 47 inclusive, Part iII of the Draft Finding relat- ing to the rulings made by the Court which rulings are ad- mitted cr undisputed. 8. In refusing to find Paragraphs 48 through 53 inclu- sive, Part IV of the Draft Finding relating to the claims and motions made by the defendant which claims of law and rul- ings on moticns were admitted or undisputed. 9. In finding that the probation report made be made a part of the Finding and may be used in argument before the Supreme Court as stated in Part IV, Paragraph 72 of the Find- ing because such probation report is irrelevant and immaterial to the question of whether the constitutional guarantees of the appellant under the Fifth, Sixth and Fourteenth Amend- ments to the Constitution of the United States had been vio- lated prior to the imposition of sentence and because such improper use of the probation report is prejudicial to the rights of the appellant. 10. In rendering a judgment of guilty as on file. 11. In refusing to grant the motions of counsel of rec- ord for permission to withdraw. 108 12. In refusing to accept the request of counsel of rec- ord to withdyaw as counsel for the accused in the light of the disclosuve made by counsel of record to the Court that there existed a conflict between himself and the accused which difference may go to the heart of his representation of the accused. 13. In ordering the defendant to trial without proper representation for the accused. 14. In ordering the accused to stand trial under circum- stances in which the accused was to conduct the trial of his own case. 15. In accepting the plea of guilty and in rendering a judgment of guilty after the accused had informed the Court that he was not guilty and after he had advised the Court of the circumstances under which he pleaded guilty. 16. In depriving the accused of his Constitutional Rights under the Fifth, Sixth and Fourteenth Amendments. The Defendant CHARLES O. DUKES By: ALPHONSE C. FASANO His Attorney Filed March 7, 1968. No Corrections. 3/14/68 DEVLIN, J. Amendment to Assignment of Errors The defendant Charles O. Dukes amends Paragraph 4 of the Assignment of Errors to insert the word “draft” before the word “finding” which word was inadvertently omitted at the 109 time the Assignment of Errors was filed, so that Paragraph 4 will read: 4. In refusing to find the material facts set forth in Paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 21, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33 and 34 of the Draft Finding which were admitted or undisputed. The Defendant CHARLES O. DUKES By: ALPHONSE C. FASANO His Attorney Filed April 8, 1968. SUPREME COURT LERK’S OF HARTFORD COUNTY one eee The above and foregoing is a true copy of the record in said case to be used in the trial in the Supreme Ccurt. Attest: ~ -. | DOMINIC A. DiCORLETO Clerk , ; , ee . —— 110 TRANSCRIPT OF TESTIMONY, HABEAS C JS STATE OF CONNECTICUT No. 161335 CHARLES DUKES SUPERIOR COURT V. HARTFORD COUNTY WARDEN NOVEMBER 5, 1969 BEFORE: HONORABLE IRVING LEVINE, JUDGE APPEARANCES: JAMES A. WADE, ESQ. Attorney For The Plaintiff JOHN D. LABELLE, ESQ. State’s Attorney, For The Defendant PETER J. ZACCAGNINO, JR., called as a witness, having been duly sworn, was examined and testified as follows: CLERK OF THE COURT: Would you please state your full name and address? THE WITNESS: Peter J. Zaccagnino, Jr., 374 Camp- field Avenue, Hartford, Connecticut. DIRFCT EXAMINATION BY MR. WADE: Q. Your occupation, Mr. Zaccagnino? A. I’m ‘an at- torney, practicing in Hartford. Q. And how long have you been an attorney, sir? A. I think it’s nineteen years — eighteen years, I be- lieve. Wait a minute, it’s 1952, seventeen years. \ 111 Q. Would you tell us who the members of your law firm are? A. Yes. I have two partners, Robert Delaney, George Linardos, and I have Robert Blechman (phonetic) as an associate in our office. We have four lawyer. Q. Would you describe generally the type of practice that your law firm engages in? A. Well, Mr. Delaney and myself devote ourselves to the criminal business. The others are on the civil side. We devote ourselves almost entirely to the criminal business. @. Do you know the petitioner, Charles Dukes? A. I know Charles Dukes very well. Q. And was Charles Dukes a client of yours in May of 1967? A. Yes, he was. Q. Would you tell us how he came to you as a client, initially? A. Well, the first time he cav:> to me, I think I was trying a case in the Hartford Cireuic Court, which I won, and he saw me trying the case, and he said he wented me to represent him on a matter. I think that’s the first time I bumped into Charlie, where he asked me about this particular case. Q. And did you have discussions with Mr. Dukes about this particular case? A. Yes, I did. Q. In your office? A. In my office, in the Courtroom when he saw me, and I suppose in the Superior Court, too, beforehand. I remember talking to him on occasion. I don’t remember just where. Q. Now, at that point in time, was Mr. Dukes out on bond? A. Yes, he was oui on bond. Q. Now, did he indicate to you, prior to May 9, 1967, did he indicate to you which way he wanted to plead on Gg 7 eS iis ‘y : 5 E Sr £ § : ory 4 112 the charges then pending against him? A. Well, he wanted to plead not guilty, and it.was my feeling, from my judgment of the case, that I was trying to persuade him to plead guilty to wipe up some matters that were pending, and I told him that I thought he ought to enter a guilty plea, and his conversation with me was that he wanted to plead ot guilty, and I told him in his best interests, he should enter a guilty plea, because I remembered. Mr. LaBelle reminded me, I looked at the file of something, I remem- bered reading the file, but there were other warrants out- standing and other matters pressing, which bring it ‘in focus tnat for his best interests, I was trying t> convince him to take a guilty plea. idan ASN BRS OMRT NAM re pons oes 3 eet Sala ~Q. And these suggestions that he take a guilty plea, were they over a period of some time? A. Well, I had — in my opinion, in his best interests, I applied a little pres- sure on him to take a guilty plea, because I thought it wus in his best interest, because he had a number of warrants pending against him. Q. Now, leading up to the date of May 9th, do you recali appearing in Superior Court before Judge Johnson with Mr. Dukes? A. Yes, at that time, because of the fact that I felt that he should take a guilty plea, and he felt he should take a not guilty plea, I thought there was, you know, a conflict between our positions, and I told Charlie, I said Charlie, I think you better get another lawyer, because I don’t think I can represent you, you feeling one way and I feeling another way, because my experience in this field tells me that you should enter a plea, and that’s when we came to pass, in the first time. Q. All right. Now, this May 9th appearance in Superior Court, was this the first appearance in Superior Court in connection with this case, on behalf of Dukes? A. I don’t know, but I know it was — it might have Batestrrcasstscasccercsics: Ayn: Xs & ~~ a a 113 been the first time for ‘me, because I discussed the case with the State’s Attorney a number of times prior to that, but as a matter of fact we had a number of conversations, but it may be my first Court appearance. I suspect it was. I don’t have any definite recollection. Q. The record indicates that he was put to plea on the 9th of May. A. Well, I assume that that’s correct, and I'd say that that’s the first time it was brought into Court. I’m certain it probably was. Q. Now, after the dialogue that took place in Court on the 9th of May, when was the next time you saw Mr. Dukes? A. Well, it was a couple of weeks later, because in between that time, I had seen Charlie perhaps back and forth around the Courtroom. I don’t know if I did. I don’t have a definite recollection at this time that I saw him. But I know I was at the sentencing when it came up for sentencing. : Q. All right. Did you talk to Mr. Dukes yourself between the 9th of May and the 16th of May, and to refresh your recollection, the 16th of May, the record indicates as the date that he plead guilty. A. Did I talk to “eo that time? Q. Yes. A. I don’t know. I’m sure I might have, be- cause it was during that period that I was trying to persuade him to take a guilty plea, and I don’t know if I did or not. I know that Mr. Delaney did talk with him. Q. All right. Now, I’m going to come to that next. The record indicates that on May 16th, Mr. Delaney appeared in Superior Court with Mr. Dukes, and at that time he entered a plea of guilty. Now, the question that I have for you is did you and Mr. Delaney discuss the disposition, or what action should be taken on behalf of your client, Mr. Na te 5 ee eee Re ae RP TR: pac wT: ean | 114 Dukes? A. Oh, I’m sure we had a number of discussions, and in refreshing my recollection this morning, we were coming up, we happened to be talking about — we didn’t know what was going to be discussed, but I know that I had a number of discussions with Mr. Delaney, and both of us said, try to convince him that it was in his best interest to take a guilty plea, and I think that Mr. Delaney and I had some conversation about it, and I might have been on trial — it’s my best recollection I was on trial, and that’s why Bob Delaney handled the case the actual time that he changed his plea, rather than myself. Q. As far as you are concerned, was Mr. Dukes still a client of your law firm? A. Well, he had paid me, let me put it that way, and I assumed that he was still a client of ours. I would say yes, he was a client of ours, because I had no understanding that he wasn’t. I had made the formal offer to withdraw, and I would state in the case, as I recall, Mr. Fazzano, or somebody that he had mentioned in New Haven, that he was going to bring up as his counsel, - was going to come in. Q. Now, I take it you had entered an appearance slip? A. Oh, we had an appearance in the file, yes. Q. And in whose name was that appearance? A IT’ would be the firm appearance, normally. I can’t recall, .1‘t I know that I always enter firm appearances, because both Mr. Delaney and myself get involved in all the cases that we are involved in over there. Q. Now, you say that during this period from the 9th of May to the 16th of May, you had conversations with Dukes in which you attempted to induce him to change his plea from not guilty to guilty, is that right? A. That’s cor- rect. That was still my best opinion at that time. Basceus- ne ONY #8 115 Q. And did there come a time when he finally agreed te do so? A. I was not present when he finally agreed to do so. I only can tell you that Mr. Delaney told me. He’s here. I suppose you should ask him. Q. And then there came a subsequent time when you appeared on behalf of Mr. Dukes for purposes of sentencing, in that right? A. Right. , _ Q. And the record indicates that you advised the Court that Mr. Dukes had told you that he now had another at- torney from New Haven, is that right? A. He told me that — no, he told me in the morning — the sequence wag a little different. I think it went something like he told me- that he did not — he wanted to change his plea, because he felt that when he entered a plea, he was under some medi- cation or some problem that he had, and he didn’t realize what he was doing, and that he was going to get another lawyer. Well, I said I cannot make a representation to the Court at this late date to change your plea, and I said I’ll in- form the Court of it, but if you do have another lawyer, you better bring him up here, because at the last moment, to find this out, I said, you know, you'll have to advise the Court of this fact, which I tried to do on the record, as I recall. Q. Now, ancillary to this, were ion also representing two girls, by the name of Baker and Sejerman? A. I don’t have a definite recollection as to the date, but I understand by looking at the record, I was representing them at the time, but if you’re asking, i don’t have a recollection — I know I represented both of them, and whatever the record appears on these girls, I did represent them both, and was present at their sentencing. The answer to that would be yes. Q. And was the representation of the two girls, did they come into your office at about the same time Dukes Battie. ei he Ss 116 did? A. They came to my office after Dukes came in. It was really not.about the same — they were in there some time around the same time, because they were sentenced about the same time. Q. Now, were the girls involved in offenses which in- volved Dukes also? A. Yes, they were | Q: And would you tell his Honor what the plea of the two girls was? A. They plead guilty. Q. Now, did the question of your representation of the girls arise between you and Dukes? . A. No. He knew that I was representing them. There was no problem about that. MR. WADE: At this time, your Honor, I’d like to offer as Petitioner’s Exhibits One, Two and Three, the tran- scripts: of the proceedings before Judge Devlin, on April 18th, involving State v. Andrea Sejerman, docket number 28080, and State v. Sandra Baker, docket number 28081. MR. LABELLE: I have no objection. THE COURT: What would be the purpose of offering the transcripts of what happened at their sentencing? MR. WADE: I think, your Honor, this: Mr. Zaccagnino has testified that he advised the Court of a conflict between his client and himself; that he, on behalf of his client, in good faith, attempted to withdraw from the case, and that the trial Judge at that point in time said I’ll not iet Mr. Zaccagnino out of the case, but I’ll give this man twenty- four hours to come up with another attorney. THE COURT: Well, this is what Attorney Zaccagnino testified. He hasn’t testified that he had a conflict of interest. between the Sejerman and the other. He testified that there 117 wasn’t any.— he testified that he explained it to him and there wasn’t any objection. MR. WADE: Yes, but I’m raising it, your Honor, and I have raised it in my amended petition, that there was a basic conflict, and that from a legal point of view, this affects the voluntariness of Mr. Dukes/plea, and so what I propose to offer is the proceedings before the Superior Court when the girls plead guilty, and then the proceedings before the Superior Court when they were sentenced. THE COURT: There is a third exhibit you wish to have made an exhibit? MR. WADE: Yes, your Honor. THE COURT: Which would be the sentencing by Judge Devlin of this defendant, am I correct? MR. WADE: No, that’s in the record already, your Honor, on the return of the State’s Attorney. MR. LABELLE: Apparently what he wants to offer is thé sentercing of the two girls. I have no objection. THE COURT: Well, I do. MR. LABELLE: I understand that, your Honor, and I fail to see the connection here at the moment, but if he wants to lay his foundation, it’s all right. with me. THE COURT: All right. They may be entered as Petitioner’s Exhibits one and two. MR. WADE: One, two and three, your Hcnor. The girls are two separate — THE COURT: You still haven’t explained to me what the third one is. STOP HE ed PROPANE SS UP ; 2 a 4 e ‘ t é 3 ; i & B 4 14 % 7 i RS PE th ceutical “iets Se F 4 2 4 : Cc of attempte, ws a dangeronu. 18, 1957,in he word? MR. WADE: Objection, irrelevant. THE WITNESS: I can't go that far vack, Mr. LaBelle. BY MR. LABELLE: Q. You donk know? A. No, I con't know. Q. Are you the same Charles Dukes who was convicted of breaking and entering with criminal intent in the Hartford Superior Court on February 10, i961? MR. WADE: Well, I offer the same objection, your Honor, and I’d ask this, through tre Court. Is Mr. LaBelle planning to put the man’s cfiminal! record in? If so, I say put it in, and — THE COURT: I can’t tell Mr. LaBelle, nor can you, how to try his case. MR. WADE: Well, then I’ll object to him going down seriatim on these criraina| cases. THE COURT: You object to this as you did to the prior one. It’s overruled. You may have an exception. MR. WADE: May I understand that as the line con- tinues — THE COURT: You may object to each one. MR. LABELLE: I claim it on the same basis, of credi- bility, your Honor. THE WITNESS: ‘“e . I re. MR, LASELLE: Are vou th uv Charles Dukes? THE WITNESS: Ye: sir. mR. LABELLE- i'l vest, yoar Honor. MR. WADE: That’s all I hase, your Honor. THE COURT: Mr. Dukes, let me ask you a question. At the hearing on June 16th, is it your \anderstanding as it is mine, that Mr. Zaccagnino represented to the Court that he had been —- and the words he used »’as ‘ forceful” with you, is that right? THE WITNESS: Yes, sir. THE COURT: Now, did Mr. Zaccagnino have anything to do with the plea of guilty which entered on the earlier date of May 16th? THE WITNESS: Yes, sir. THE COURT: Weren’t you in fact on that day repre- sented by Mr. Delaney? THE WITNESS: Yes, but all he told me was what Mr. Zaccagnino said, and he tell me, he said, he didn’t know from nothing, he says, and he only got ten minutes, and that’s not adequate time for him to prepare no defense to try this case. He says he can’t try the case. THE COURT: What I’m getting at is that on that par- 166 ticular date, when you entered your plea, Mr. Zaccagnino had nothing to do with you. You didn’t even see him. THE WITNESS: No, sir. THE COURT: So that if there was any pressure, the word you used, or force, which he used, that would have been on the part of Mr. Delaney, would it not? THE WITNESS: The misunderstanding, yes, sir. THE COURT: I have no further questions. You can step down. MR. WADE: Petitioner rests, your Honor. — i f t Supreme Court of the Gnited States No. 712172 e--scgeperFened9=__ Charles 0. Dukes, Petitioner, Ve Warden, Connecticut State Prison On petition for writ of Certiorari to the Supreme seseseeee= = Court of the State of Connecticut. @n consideration of the motion for leave to proceed herein in forma pauperis and of the petition for writ of certiorari, it is ordered by this Court that the motion to proceed in forma pauperis be, and the same is hereby, granted; and that the petition for writ of certiorari be, and the same is hereby, dere «=. gFanted, \_ Roveuber 9, 1971 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0008%3A1. Public record. Not legal advice.