State v. Krozel , 24 Conn. Supp. 266 ( 1963 )

Jacobs, J.

We are asked to reverse under the sixth amendment to the Constitution of the United States, which corresponds closely to article first, § 9, of the constitution of this state, a conviction upon a charge of operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227 of the General Statutes.

The finding, with such corrections as the defendant is entitled to (Cir. Ct. Rule 7.26.1), sets forth these facts: On July 20, 1962, at about 10:50 p.m., state police trooper Robert Hubbard, assigned to cruiser duty, was patrolling route 6 in the town of Andover. Near the intersection of route 6 and Hebron Road, his attention was drawn to a tie-up in traffic caused by the operation of a green Chevrolet car which was proceeding very slowly in an easterly direction on route 6 and which, upon a blast from the police siren, came to a stop on Old State Road. The accused was the operator of the green automobile. He was taken in the cruiser to the state police barracks in Colchester, where trooper Hubbard and another police officer administered the sobriety tests which are routinely made in such cases. They concluded that he was under the influence of intoxicating liquor and so charged him. He was then placed in the lockup. He asked permission to use the telephone to call his lawyer. This request was denied. He later asked permission to call his wife. This request, too, was denied.¹ The trial court found that the “defendant was capable of using the telephone.” He was released from custody, upon the posting of a bond, at 8 a.m. on the following day. In its corrected finding, the trial court made this specific finding: “The State Police policy is to lock up an accused for four hours before releasing him on bond and to deny him access to a telephone during the time when he is, in the opinion of the police, intoxicated.” We can assume from the evidence that this policy of the state police was followed in this case.

The question raised on this appeal is: At what stage of the criminal process does the accused have the right to secure the assistance of his lawyer, where he is able to pay for and asks for legal assistance?

In the United States, defendants were, from earliest times, allowed to be represented by retained counsel, and the provisions in the bill of rights and in state constitutions confirmed that practice. Beaney, “Right to Counsel before Arraignment,” 45 Minn. L.R. 771, 772. “The original Constitution of Connecticut (Art. I, § 9) contained a provision that ‘In all criminal prosecutions, the accused shall have the right to be heard by himself and by counsel’; but this constitution was not adopted until 1818. However, it appears that the English common law rule had been rejected . . . long prior to 1796.” Sutherland, J., in Powell v. Alabama, 287 U.S. 45, 62, referring to 2 Swift, System, p. 398. In Powell v. Alabama, supra, the following extended quotation appears in the footnote (p. 63): “This [Swift’s System] ancient work, consisting of six books, has long been out of print. A copy of it is preserved in the locked files of the Library of Congress. The following extract from the pages cited is both interesting and instructive: ‘The attorney for the state then proceeds to lay before the jury, all the evidence against the prisoner, without any remarks or arguments. The prisoner by himself or counsel, is then allowed to produce witnesses to counteract and obviate the testimony against him; and to exculpate himself with the same freedom as in civil cases. We have never admitted that cruel and illiberal principle of the common law of England that when a man is on trial for his life, he shall be refused counsel, and denied those means of defence, which are allowed, when the most trifling pittance of property is in question. The flimsy pretence, that the court are to be counsel for the prisoner will only heighten our indignation at the practice: for it is apparent to the least consideration, that a court can never furnish a person accused of a crime with the advice, and assistance necessary to make his defence. This doctrine might with propriety have been advanced, at the time when by the common law of England, no witnesses would be adduced on the part of the prisoner, to manifest his innocence, for he could then make no preparation for his defence. One cannot read without horror and astonishment, the abominable maxims of law, which deprived persons accused, and on trial for crimes, of the assistance of counsel, except as to points of law, and the advantage of witnesses to exculpate themselves from the charge. It seems by the ancient practice, that whenever a person was accused of a crime, every expedient was adopted to convict him, and every privilege denied him, to prove his innocence. . . . Our ancestors, when they first enacted their laws respecting crimes, influenced by the illiberal principles which they had imbibed in their native country, denied counsel to prisoners to plead for them to any thing but points of law. It is manifest that there is as much necessity for counsel to investigate matters of fact, as points of law, if truth is to be discovered. The legislature has become so thoroughly convinced of the impropriety and injustice of shackling and restricting a prisoner with respect to his defence, that they have abolished all those odious laws, and every person when he is accused of a crime, is entitled to every possible privilege in making his defence, and manifesting his innocence, by the instrumentality of counsel, and the testimony of witnesses.’ ” Mr. Justice Sutherland thought (p. 64 n.) that the “early statutes of Connecticut, upon examination, do not seem to be as clear as this last paragraph would indicate; but Mr. Swift, writing in 1796, was in a better position to know how the statutes had been interpreted and applied in actual practice than the reader of today; and we see no reason to reject his statement.” In Connecticut, an accused enjoyed the full right to retain counsel of his own choice. Beaney, The Bight to Counsel in American Courts, p. 21 (1955). Such has ever since been the policy of this state.²

We now turn to a review of some of the recent right-to-counsel cases. Thirty years ago, in Powell v. Alabama, supra, the Supreme Court of the United States advanced the American view of the right to counsel in criminal cases (p. 68): “The right to he heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. . . . Ee requires the guiding hand of counsel at every step in the proceedings against him.” (Italics supplied.) In Chandler v. Fretag, 348 U.S. 3, 9, the petitioner was indicted in a Tennessee court for housebreaking and larceny, punishable by a term of three to ten years. At the trial, he appeared without counsel and pleaded guilty. He was then advised for the first time that, because of three prior felony convictions, he would be tried also as a habitual criminal. A conviction on that charge would have subjected him to life imprisonment. He asked for a continuance so that he could obtain counsel. This request was denied and he was convicted. After serving his sentence on the original charge, he unsuccessfully sought habeas corpus in the state courts, claiming denial of the opportunity to obtain counsel. The Supreme Court of the United States granted certi-orari and reversed. The Tennessee attorney general insisted that the petitioner had no federal right to counsel, relying upon Betts v. Brady, 316 U.S. 455, which permits a trial of a noncapital offense without counsel where the defendant is confronted by a relatively simple charge and is reasonably intelligent and experienced, and no injustice is done. The court rejected this argument, holding (p. 9) that the doctrine enunciated in Betts v. Brady, supra, “has no application here.” The court quoted at length from Powell v. Alabama, supra, and concluded (p. 9): “Regardless of whether petitioner would have been entitled to the appointment of counsel, Ms right tobe heard through his own counsel was unqualified.” (Italics supplied.)

But does the “unqualified” right recognized in Chandler v. Fretag, supra, extend to the pretrial state? This problem was more clearly presented in two cases which were decided at the 1958 term of the Supreme Court. In both cases, the claim to the right to counsel during the period of police interrogation was denied. In Crooker v. California, 357 U.S. 433, 440, a college graduate, thirty-one years old, with one year of law school training, confessed to the murder of his paramour. During the interrogation, he asked at least twice if he could call an attorney, but was told he could do so only at the conclusion of the investigation. Mr. Justice Clark’s opinion for the court, after finding the confession voluntary, rejected petitioner’s contention that (p. 440) “every state denial of a request to contact counsel . . . [is] an infringement of the constitutional right without regard to the circumstances of the case.” Rather, the court concluded (p. 439): “[S]tate refusal of a request to engage counsel violates due process not only if the accused is deprived of counsel at trial on the merits . . . but also if he is deprived of counsel for any part of the pretrial proceedings, provided ... he is so prejudiced thereby as to infect his subsequent trial with an absence of That fundamental fairness essential to the very concept of justice.’ . . . The latter determination necessarily depends upon all the circumstances of the case.” In that case (p. 440), “the sum total of the circumstances . . . during the time petitioner was without counsel is a voluntary confession by a college-educated man with law school training who knew of his right to keep silent.” Mr. Justice Douglas’ dissenting opinion, joined by Chief Justice Warren and Justices Black and Brennan, after pointing out the various functions of counsel at the pretrial stage, ends on this clear note (p. 448): “The demands of our civilization expressed in the Due Process Clause require that the accused who wants a counsel should have one at any time after the moment of arrest.” In a companion case, Cicenia v. Lagay, 357 U.S. 504, 511, petitioner was denied an opportunity during a period of police questioning to confer with a lawyer whom he had already retained, rather than, as in the Crooker case, supra, a lawyer not yet retained. A period of seven and one-half hours had elapsed between the time of the lawyer’s request to see his client and the granting of access. Mr. Justice Harlan, writing for the court, found no lack of fundamental fairness, and reiterated that lack of counsel is only one pertinent element in determining whether a trial is unfair. In evaluating the precedential value of the court’s decisions in these cases, it should be noted that Mr. Justice Stewart has since replaced Mr. Justice Burton, who voted with the majority. Mr. Justice Stewart, in Spano v. New York, 360 U.S. 315, 326, wrote a separate concurring opinion placing reversal of conviction squarely on the failure of the police to allow petitioner to send for counsel and distinguished the Crooker and Cicenia cases on the ground that in the Spano case the petitioner was already under indictment so that it was (p. 327) “not a case where the police were questioning a suspect in the course of investigating an unsolved crime.” Moreover, he used language which casts some doubt on the longevity of Crooker and Cicenia even as so qualified (p. 327): “Our Constitution guarantees the assistance of counsel to a man on trial for his life in an orderly courtroom, presided over by a judge, open to the public, and protected by all the procedural safeguards of the law. Surely a Constitution which promises that much can vouchsafe no less to the same man under midnight inquisition in the squad room of a police station.”

Perhaps in no area of judicial administration are the judges so directly aware of the conflicting interests involved as in the right-to-eounsel cases. “On the one hand, it is indisputable that the right to counsel in criminal cases has a high place in our scheme of procedural safeguards. On the other hand, it can hardly be denied that . . . [to] constrict state police activities . . . might impair their ability to solve difficult cases. A satisfactory formula for reconciling these competing concerns is not to be found in any broad pronouncement that one must yield to the other in all instances. Instead, . . . this Court, in judging whether state prosecutions meet the requirements of due process, has sought to achieve a proper accommodation by considering a defendant’s lack of counsel one pertinent element ill determining from all the circumstances whether a conviction was attended by fundamental unfairness.” Harlan, J., in Cicenia v. Lagay, 357 U.S. 504, 509. There are those who strongly contend that “[a] person accused of crime needs a lawyer right after his arrest probably more than at any other time.” Chafee, Documents on Fundamental Human Eights, pamphs. 1-3, p. 541 (1951-1952), cited by Douglas, J., dissenting in Crooker v. California, supra, 446; Moreland, Modern Criminal Practice, p. 175 (1959); Orfield, Criminal Procedure from Arrest to Appeal, p. 43 (1947). “What takes place in the secret confines of the police station may be more critical than what takes place at the trial.” Note, 107 U. Pa. L. Rev. 286.

In the case at bar, unlike Crooker and Cicenia, the interrogation of the defendant had been concluded. All the reasonable demands of the police had been satisfied. The charge against him was made out. (See Spano v. United States, supra.) The fact that this was a noncapital offense is of no moment. “Indeed the right to the assistance of counsel whom the accused has himself retained is absolute, whatever the offense for which he is on trial.” Stewart, J., concurring in Spano v. United States, supra, 327. Unquestionably, the defendant was entitled to have effective counsel at the trial. Powell v. Alabama, supra. “Although competent counsel is of great value at that time, the time when the accused person really needs the help of a lawyer is when he is first arrested and from then on until trial. The intervening period is so full of hazards for the accused person that he may have lost any legitimate defense long before he is arraigned and put on trial.” Miller, “Lawyers and the Administration of Criminal Justice,” 20 A.B.A.J. 77, 78. “The question here is how they could ever have had effective counsel at the trial .... They were denied effective counsel at the trial itself because of what went on before trial while the defendants were without counsel, and absolutely under the control of the prosecution.” Ex parte Sullivan, 107 F. Sup. 514, 517. “Bitter experience has sharpened our realization that a major test of true democracy is the fair administration of justice. ... In the development of our liberty insistence upon procedural regularity has been a large factor .... It is not for nothing that most of the provisions of our Bill of Rights are concerned with matters of procedure. . . . Time out of mind this Court has reversed convictions for the most heinous offenses, even though no doubt about the guilt of the defendants was entertained. It reversed because the mode by which guilt was established disregarded those standards of procedure which are so precious and so important for our society.” Frankfurter, J., dissenting in Socher v. United States, 343 U.S. 1, 23, 25, 28 (quoted in Ex parte Sullivan, supra, 518); see State v. Doucette, 147 Conn. 95,108.

In denying the defendant the right to assistance of his counsel upon the facts as disclosed by the record in this case, we hold harmful error was committed ; and accordingly, the conviction cannot stand.

There is error, the judgment is set aside and the case is remanded with direction to render judgment that the defendant is not guilty and ordering that he be discharged.

In this opinion Pkuyn, J., concurred.

1 In cross-examination of the arresting officer, he testified as follows: “Q. — Then after you were all through [with the examination] he asked you to use the phone, didn’t he? A.’ — He might have. I don’t honestly remember. Q. — And you refused permission, didn’t you? A. — Most likely; I locked him up after we were finished. Q. — Did he want to use the phone? Did he ask you, and did you refuse permission? A. — I don’t exactly remember, but I mean I know I didn’t let him use the phone at that time. Q. — Why didn’t you let him use the phone? A. — Normally when someone is in an intoxicated condition we lock him up for four hours and then bond him out. Q. — The man was capable of using the phone. Didn’t he tell you that he wanted to call his lawyer and wanted to call his wife? A. — Well, he probably did. I can’t honestly say.” The defendant, on direct examination, testified: “Q. — Then what was the conversation before you were locked up? A. — I asked him [arresting officer] if he wouldn’t let me call my attorney. He said ‘No.’ I said, ‘Then let me call my wife.’ He said, ‘No. You are not using the phone at all.’ ”

2 Connecticut’s generous treatment of those accused of crime is evidenced by the fact that “[o]nly 78 Public Defender offices are currently in operation in the entire country and of this number 63 are located in three states — California, Connecticut and Illinois.” Pollock, Equal Justice in Practice, 45 Minn. L.R. 737, 738.