5 Conn. Cir. Ct. 242 | Conn. App. Ct. | 1968
All the defendants were found guilty of the crime of frequenting a gambling house
We direct our attention to the preliminary hearing. The record as certified to us (Practice Book § 960) discloses the following facts: The defendants were arrested on March 12, 1967, upon informations charging them with frequenting a gambling house in violation of § 53-274. They retained John T. Cullinan, a member of the Bridgeport bar, to defend against the criminal prosecutions. On April 19, 1967, the court (Naruk, J.) advised the defendants before plea of their rights. General Statutes § 54-1b. They pleaded not guilty and elected trial by jury. The cases were continued to May 2,1967, and thence to May 24, 1967. Meanwhile, on May 10, 1967, at a preliminary hearing held at Bridgeport, the court (Cicala, J.) was informed that the defendants had decided to engage new counsel, Henry B. Rothblatt, a member of the bar of New York, in place of Attorney Cullinan. Upon being so advised, the court inquired of new counsel if he “would mind if each one of these [defendants] took the witness stand and indicate to the court that they have retained you [Attorney Rothblatt] and that they intend that you will represent each and everyone of them throughout these proceedings whether it takes a day or a month or whether they are all tried together or individually.” Attorney Rothblatt made it clear to the court that “we are calling them [the defendants] just for the limited purpose of indicating their desire for me to represent them.”
The record shows that the court’s interrogation went beyond the limited inquiry to determine the question of legal representation; the interrogation covered a wide ranging inquiry into matters calling for answers which could be perilous because injuri
In the instant cases, none of the defendants was actually or in any meaningful sense permitted by the court to be represented by counsel at the preliminary hearing, yet there can be no doubt that the criminal prosecution had commenced and the defendants were, at all times thereafter, entitled to have the assistance of counsel for their defense. White v. Maryland, 373 U.S. 59, 60; Hamilton v. Alabama, 368 U.S. 52, 54. “More than a mere token appearance by an attorney on behalf of a defendant is required to satisfy the constitutional right to counsel. A defendant is entitled to the effective and substantial aid of counsel at all stages of the proceeding.” People v. Karlin, 231 Cal. App. 2d 227, 231; see Harvey v. United States, 215 F.2d 330, 332 (dissenting opinion). The defendants here were before the court under the compulsion of an arrest upon a criminal charge; in these circumstances, they may well have believed it was their duty to testify when called to the witness stand. “When a defendant goes to trial upon a charge of a criminal nature without the benefit of counsel, it is the duty of the court to be alert to protect the defendant’s rights. Good practice requires that any suggestion by the court that the defendant take the stand be coupled with advice as to his privilege against self-incrimination. The defendant may not be called to the stand in a criminal ease unless he waives his privilege. He cannot be charged with a waiver of the privilege unless it appears that he was aware of its existence and its surrounding safeguards and voluntarily and intelligently elected to refrain from asserting it.” People v. Chlebowy, 191 Misc. 768, 772 (N.Y.); People v. Morett, 272 App. Div. 96, 98 (N.Y.);
We do not turn this “criminal appeal into a quest for error”; Johnson v. United States, 318 U.S. 189, 202 (concurring opinion); rather, we find no justification for limiting the historic protection afforded those accused of crime. It is not our function to assess the practical possibility of prejudice which resulted from the court’s interrogation; indeed, such an assessment would be impossible for us to make. “To determine the precise degree of prejudice . . . is . . . difficult and unnecessary. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” Glasser v. United States, 315 U.S. 60, 75.
The denial of the right to assistance of counsel at the preliminary hearing was prejudicial; accordingly, the convictions cannot stand. In view of our conclusion as to this claim, consideration of the remaining claims is unnecessary.
In reversing the convictions, we are not called upon to decide, nor do we decide, whether the evidence was sufficient to sustain the judgment of guilty. On the contrary, we have restricted our review to a determination of whether the preliminary hearing was held in accordance with procedural due process. We have determined that it was not.
In this opinion Kinmonth and Macdonald, Js., concurred.
The informations in these cases use the word “gambling.” The statute (§53-274) uses the word “gaming.” “The word ‘gaming’ is synonymous with gambling.” Farina v. Kelly, 147 Conn. 444, 448; see 2 Wharton, Criminal Law (12th Ed.) § 1741; 38 C.J.S. 51 n.25, Gaming, § 1 (d) (1).
“Sec. 53-274. gaming HOUSE; frequenters. Any person who enters, except for a legitimate purpose, a place resorted to for the purpose of gaming, or which is reputed to be a gaming house or place frequented for the purpose of gaming, shall be deemed to be a frequenter thereof and shall be subject to the penalties provided in section 53-273” (§ 53-273 provides for a penalty of not more than $100 or imprisonment for not more than six months or both).
There was considerable wrangling between the court and one defendant and counsel which comprised some forty pages of the transcript. During the interrogation of this witness by both court and prosecuting attorney, he was ordered to disclose facts and circumstances over and beyond the waiver. He was asked to give the names of his acquaintances, the place and the date where they had met, and the purpose of the meeting. We are to remember that the defendants had been the object of more than casual interest by the prosecution. Obviously, it was perilous for this witness to answer, for, if he acknowledged such acquaintances, it may have directly connected him with the codefendants and possibly other crimes. “Indeed, perhaps in the end we should say no more than that the chase must not get too hot; or the scent, too fresh.” United States v. Weisman, 111 F.2d 260, 263. “[I]n determining whether the witness really apprehends danger in answering a question, the judge cannot permit himself to be skeptical; rather must he be acutely aware that in the deviousness of crime and its detection incrimination may be approached and achieved by obscure and unlikely lines of inquiry.” United States v. Coffey, 198 F.2d 438, 440.
While on the witness stand, a defendant asked the court for permission to consult with his lawyer on at least three different occasions; these requests went by unheeded and the interrogation continued. “Only one conclusion can be drawn from this renewed request for counsel. . . . [The witness] at this point either realized the seriousness of the hearing for the first time, or was misled at the outset as to what his right to counsel was.” Application of Sullivan, 126 F. Sup. 564, 575.
Although Attorney Cullinan was not given permission to withdraw as counsel for the defendants at the commencement of the preliminary hearing, the court inquired of Attorney Rothblatt, not of Attorney