Opinion
LLICR150148236
11-25-2016
State of Connecticut v. Timothy Ventry
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISQUALIFY DEFENDANT'S COUNSEL
Kari A. Dooley, J.
Preliminary Statement
By motion dated October 20, 2016, the State seeks an order from the court disqualifying Attorney Baird from representing the defendant, Timothy Ventry, on the grounds that Attorney Baird also represents Bryon Ventry, the defendant's son and a significant witness in the case. The defendant objects to the State's motion. The court held an evidentiary hearing on November 8, 2016 and thereafter received additional briefing from the defendant on November 18, 2016.
For the reasons set forth below, the State's motion is GRANTED.
Discussion
A. The allegations and the evidence
The recitation of the events surrounding the defendant's arrest and the investigation into his conduct derive from the police incident reports and the supplements thereto. It is, of course, impossible to know precisely what the evidence will include at trial but for purposes of this motion, the court assumes the evidence will be largely consistent with the investigative reports, at least insofar as they describe the conduct and role of Bryon Ventry in their investigation. Indeed, Attorney Baird acknowledged that there was not much dispute as to what Bryon Ventry did or said on the days in question.
On July 24, 2015, Bryon Ventry awoke early in the morning after a difficult night's sleep. He heard a couple of loud noises which he assumed to be the defendant throwing something against the wall. He awoke again after 11:00 a.m., at which time he saw what appeared to be a bullet hole in his bedroom wall. He then concluded that his father, the defendant, had discharged a firearm inside the home. He tried to communicate with his father but was unable to because of his father's level of intoxication and mental instability. Fearing for his own safety, he fled the home and called 911, summoning the police.
When the police arrived, Bryon Ventry told the police about the shots fired inside the home. He also gave a detailed statement to the responding officers regarding his father, to include his recent discharge (against medical advice) from Charlotte Hungerford Hospital; his abuse of his prescription pain medication; his excessive drinking and his emotional and mental instability. Bryon Ventry detailed the events of the proceeding few days with respect to each of these issues. Bryon Ventry further advised the police regarding Timothy Ventry's emotional state--specifically that his father was suicidal and further that his father dislikes and does not trust law enforcement. He opined that Timothy Ventry would do anything to avoid being taken into custody.
Bryon Ventry further assisted the police in terms of the defendant's likely location within the house, the extent to which the home contained firearms and ammunition and the ability of the defendant to access those firearms and ammunition. Thus began a 14-hour stand-off with law enforcement from multiple jurisdictions. The defendant's actions during the stand-off and the negotiations with him to end the stand-off are not germane to the issue of Attorney Baird's representation of the defendant and so are not included herein.
Ultimately, the police seized approximately 70 firearms and thousands of rounds of ammunition.
After the defendant was taken into custody, the police sought and obtained search warrants for the premises. During the first search, Bryon Ventry provided information as to a bullet hole in the defendant's bedroom (it was from a previous accidental discharge) and was otherwise cooperative. Specifically, Bryon Ventry was asked whether his father or he possessed a .25 caliber firearm. The evidence indicated that such a firearm had been discharged but no firearm of that caliber had been seized. Bryon Ventry indicated that he was not aware of any .25 caliber firearm in the house.
Thereafter, the police obtained a second search warrant and again interacted with Bryon Ventry in connection with its execution. He pointed out additional firearms or ammunition that he had located after the first search warrant was executed while looking for a .25 caliber firearm. Again, no .25 caliber firearm was located.
On August 18, 2015, Bryon Ventry contacted the police to indicate he had located an item of interest in the home. The police made contact with Bryon who again met them at the residence. He detailed the circumstances under which he located a .25 caliber hand gun in the freezer section of his refrigerator. The hand gun was seized and taken as evidence. It was later determined to have belonged to a deceased relative.
There is some indication that following the second search warrant on August 3, 2015, Bryon Ventry became more critical of the police and less forthcoming in his interactions. The nature of those criticisms and/or their genesis is not clear.
The defendant was previously represented by Attorney Sconyers. While the case was winding its way through the judicial process, Attorney Baird filed an appearance in the file on behalf of Bryon Ventry on December 14, 2015. She also filed a motion for return of seized property, specifically the firearms, to Bryon Ventry, the rightful owner. On December 18, 2015, Attorney Baird appeared before Judge Ginocchio with respect to this motion. At that time, the defendant had been declared incompetent and had not yet been restored. The State objected on both procedural and substantive grounds but noted at the outset that proceeding on any motion, even if procedurally permissible, would be premature in light of the defendant's incompetence, as he would not have a meaningful opportunity to appear and be heard on the issues. State's Attorney Shepack advised the court: " But to the extent that . . . Attorney Baird wanted the record to reflect that she filed a motion, that she has a claim in the file, they've accomplished that today. The following colloquy then occurred:
It is not clear that Bryon Ventry has the right to intervene or standing to seek a return of his property within the context of the criminal case. See, State v. Gault, 304 Conn. 330, 343, 39 A.3d 1105 (2012) (" It is axiomatic, . . . that " [t]he parties to a criminal action are the [state], in whose sovereign name it is prosecuted, and the person accused . . . and not the crime victim(s)." That issue is not decided here.
Atty. Baird: And my--and there are preliminary steps that need to be made before I would ask for the motion to be heard, specifically to look at the property to identify exactly what property my client is making a claim to. Atty. Shepack: I don't have any objection. We talked about that, her looking at the property. I again, resist the motion, but we'll deal with that when we get to that bridge, if we get to that bridge.
...
The Court: So what I'm going to do is I'm just going to put down that Attorney Baird is filing motions--is filing a motion. And it's in regard to the weapon?
Atty. Baird: All of the property at this time.
The Court: A motion regarding seized property.
Atty. Shepack: Well, I'm sure you're not seeking the two weapons that were actually used.
Atty. Baird: Well, as I said preliminarily, I would need to look at the property to identify the specific pieces, and then I anticipate perhaps the motion would be more specific regarding the item numbers.
Atty. Shepack: Okay. So we'll refine this issue as we go forward. Is that fair to say?
Atty. Baird: That's fair to say. Mr. Shepack.
The Court: What date are we going to continue this to?
Atty. Shepack: Well, the criminal case went to 1/20 because, again, we have to deal with the issue of Mr. Timothy Ventry's competency.
Atty. Baird: I will--I will be following the case, and I will be back on 1/20 and report back whether I've had an opportunity to look at the items by that time.
It does not appear that the issues raised in Bryon Ventry's motion have been procedurally or substantively addressed after this initial proceeding. On August 16, 2016, Attorney Baird filed her appearance on behalf of the defendant in lieu of Attorney Sconyers. Her appearances on behalf of both Bryon Ventry and the defendant remain in the file. On October 6, 2016, the State filed the instant motion.
B. Applicable Law
The court is called upon to reconcile two competing constitutional rights--the right to counsel of one's choosing versus the right to counsel free from conflicts of interest. Neither right is unfettered and each, under some circumstances, can be waived. Fortunately, the court does not right on a blank slate. Our appellate courts have set forth guidance for trial courts confronted with these issues.
In State v. Peeler, 265 Conn. 460, 828 A.2d 1216 (2003), the Supreme Court held that the trial court had abused its discretion by disqualifying the defendant's privately retained counsel. There, the potential conflict arose when the state identified the defendant's counsel as a witness against the defendant in a different, though factually related, murder trial. The Court held that such circumstances required the state to establish a " compelling need" for the attorney's testimony, which, it held, the state had failed to do. The court further concluded that the information sought from the attorney was available from other sources and although his testimony was relevant, it was therefore not " necessary." Id., 476-77. Although the situation presented in Peeler is very different than that presented here, the court's lengthy discussion of the historical, individual and systemic goals of the 6th Amendment right to counsel of one's choice is instructive.
The murder allegations for which counsel represented the defendant were purported to be the motive for two subsequent murders, one of which involved a minor witness to the first murder.
The court does not include the entirety of that discussion.
It is well settled that the guarantee of assistance of counsel under the sixth amendment to the United States constitution encompasses the right to select one's own attorney. It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice . . . Statements on this subject stem largely from an appreciation that a primary purpose of the sixth amendment is to grant a criminal defendant effective control over the conduct of his defense . . . As the United States Supreme Court has stated, the sixth amendment grants to the accused personally the right to make his defense . . . [because] it is he who suffers the consequences if the defense fails.
The choice of counsel is the primary means for the defendant to establish the kind of defense he will put forward . . . Only a healthy, independent defense bar can be expected to meet the demands of the varied circumstances faced by criminal defendants, and assure that the interests of the individual defendant are not unduly subordinat[ed] . . . to the needs of the system . . .
In sum, our chosen system of criminal justice is built upon a truly equal and adversarial presentation of the case, and upon the trust that can exist only when counsel is independent of the Government. Without the right, reasonably exercised, to counsel of choice, the effectiveness of that system is imperiled.
A defendant, then, must have confidence in the attorney who will represent him or her. For the basic trust between counsel and client . . . is a cornerstone of the adversary system . . . If all attorneys were the same, the choice of an attorney would be of no moment. However, [a]ttorneys are not fungible . . . Attorneys are different, and their differences can influence the defense presented by a defendant. Therefore, a defendant is afforded an opportunity to select an attorney.(Internal citations omitted. Internal quotations omitted.) Id. at 470-72.
Notwithstanding these important considerations, the right to counsel of choice is not absolute. Id. at 473. This is because an adjunct to this right, is the defendant's right to be represented by an attorney free from conflicts of interest. State v. Webb, 238 Conn. 389, 417, 680 A.2d 147 (1996).
" When a defendant's selection of counsel seriously endangers the prospect of a fair trial, a trial court justifiably may refuse to agree to the choice. Thus, a trial court may, in certain situations, reject a defendant's choice of counsel on the ground of a potential conflict of interest, because a serious conflict may indeed destroy the integrity of the trial process." State v. Peeler, supra, at 473. However, the constitutional right to counsel of one's choice is entitled to a presumption in favor of a defendant's chosen counsel. Id. Therefore, " a trial court may not reject a defendant's chosen counsel on the ground of a potential conflict of interest without a showing that both the likelihood and the dimensions of the feared conflict are substantial." Id. The trial court cannot vitiate the defendant's right to counsel of his choosing " without first scrutinizing closely the basis for the claim. Only in this way can a criminal defendant's right to counsel of his choice be appropriately protected." Id. at 475. In the final analysis, " the trial court has broad discretionary power to determine whether an attorney should be disqualified for an alleged . . . conflict of interest." (Internal citations omitted.). State v. Webb, supra., at 417.
In State v. Crocker, 83 Conn.App. 615, 852 A.2d 762 (2004), our Appellate Court addressed the issue of disqualification when the defendant's attorney also represented a state's witness. The Appellate Court affirmed the trial court's disqualification of the defendant's attorney on the basis of a conflict of interest. In so doing, the court first reviewed the tenets set forth in both Webb and Peeler and then surveyed other jurisdictions that have addressed this specific issue within the context of those tenets.
" [T]he purpose of providing assistance of counsel is simply to ensure that criminal defendants receive a fair trial . . . and that in evaluating Sixth Amendment claims, the appropriate inquiry focuses on the adversarial process, not on the accused's relationship with his lawyer as such . . . Thus, while the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." Id. at 625-26, quoting, Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). A trial court may disqualify counsel not only when an actual conflict arises, but also " in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses." (Internal quotation marks omitted.) Id. at 626. Indeed, " '[t]here are many situations in which a . . . court can determine that disqualification of counsel is necessary. The most typical is where the . . . court finds a potential or actual conflict in the chosen attorney's representation of the accused, either in a multiple representation situation . . . or because of the counsel's prior representation of a witness or co-defendant . . .' (Citations omitted; emphasis added.)" Id. at 627, quoting, United States v. Locascio, 6 F.3d 924, 931 (2d Cir. 1993).
The Appellate Court also relied upon United States v. Stewart, 185 F.3d 112, 119-22 (3d Cir. 1999)) wherein the Third Circuit upheld the disqualification of the defendant's attorneys because they had also represented " several individuals who would be testifying against the defendant at his criminal trial." Id. As explained by the court, " [ c ] onflicts of interest arise whenever an attorney's loyalties are divided, and an attorney who cross examines former clients inherently encounters divided loyalties ." Id., quoting, United States v. Stewart, supra, at 121. See also, Perillo v. Johnson, 205 F.3d 775, 780 (5th Cir. 2000) (An attorney having to cross examine his own client as an adverse witness is placed in an equivocal position. His zeal in defense of his client the accused is counterpoised against solicitude for his client the witness").
The Crocker court was also very mindful of, and concerned about, whether the dual representation " created the opportunity, whether or not actually exploited of influencing [the former client] in a manner favorable to the defendant." Id. at 629. " The potential for that clearly could have had a deleterious effect on the defendant and also on the public itself, which has the greatest stake in the propriety of the legal relationships that are created to administer criminal justice properly." Id. The court concluded: " [u]nder no circumstances and by no stretch of the imagination could an attorney with any propriety ever represent an eyewitness or a material witness to a crime and also represent, or become professionally associated with, the individual charged with the commission of such a crime." Id., quoting, In Re: Garber, 95 N.J. 597, 608, 472 A.2d 566 (1984).
In re Garber, 95 N.J. 597, 472 A.2d 566 (1984), was an appeal from a disciplinary proceeding. There is no suggestion here that Attorney Baird has engaged in any ethical lapses. Nor are the circumstances presented here particularly similar to the situation presented in either the Crocker case or the Garber case. However, in the court's view, the distinction underscores only the extent of the conflict, not the appropriate result once it has been identified.
The situation presented here is as follows: Bryon Ventry is a central and pivotal witness to his father's alleged crimes and had an integral role in the post stand-off investigation. The State will, without question, call him as a witness. Much of the information he has cannot be gleaned from other sources. He is also a percipient witness to his father's mental and emotional health in the days leading up to and including the stand-off, making him an important witness with respect to the defendant's affirmative defense of mental disease or defect.
Whether and to what extent Bryon's testimony will be helpful to either the State or the defendant cannot be known with any certainty in advance of trial. It is likely that portions of his testimony will be helpful to the state, while other portions of his testimony may be of assistance to the defense. Whether and to what extent his testimony is either consistent with or contrary to the expert's opinion as to the defendant's mental state, cannot be known in advance of trial. The decision of whether and how to cross examine Bryon Ventry is a trial time decision. The defendant's counsel must be able to conduct vigorous and unqualified cross examination if to do so is in the defendant's best interest. However, Bryon Ventry's status as a concurrent (or former) client of Attorney Baird renders her unable to make those determinations, let alone conduct the cross examination, without encountering divided loyalties.
The situation also raises the concern noted by the court in Crocker, that the dual representation may create " the opportunity, whether or not actually exploited, " of influencing Bryon Ventry's testimony in a manner favorable to the defendant. Such a possibility goes to the heart of the validity of the trial process and the integrity of the jury's verdict.
The court therefore concludes that the potential conflict of interest in this case is well more than likely and that the seriousness of the conflict is substantial. See State v. Peeler, supra, 265 Conn. at 475.
The court agrees with Attorney Baird that her representation of Bryon Ventry in seeking a return of his firearms does not, on its face, make Bryon's interests adverse to Timothy's interests as a defendant in this matter. Such a conflict would arise if Timothy and Bryon disagreed as to ownership of the firearms however.
The next question is whether the court can accept a waiver of any conflict by both clients. For purposes of this determination, the court notes that Attorney Baird represented to the court that both clients were willing to provide such a waiver.
It does not appear to the court however that the defendant had the opportunity to consult conflict-free counsel when making that determination.
" In Wheat v. United States, . . . the United States Supreme Court noted that the [trial] court must be allowed substantial latitude in refusing waivers of conflicts of interest . . . The court also noted that the [trial] court must pass on the issue whether or not to allow a waiver of a conflict of interest by a criminal defendant not with the wisdom of hindsight after the trial has taken place, but in the murkier pretrial context when relationships between parties are seen through a glass, darkly." (Internal citations omitted. Internal quotation marks omitted.) State v. Peeler, supra, 265 Conn. at 474-75. As noted in State v. Crocker, " [t]he Wheat court rejected the notion that a defendant's waiver cures the problem related to a conflict of interest recognizing that federal courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that the legal proceedings appear fair to all those who observe them." Id. supra, 83 Conn.App. at 626. Clearly, the state courts have the same interest and responsibility. " When a lawyer's conflict, actual or potential, may result in the inadequate representation of a defendant or jeopardize the court's institutional interest in the rendition of a just verdict, a trial judge has the discretion to disqualify an attorney or to decline a proffer of waiver." Id. at 631. The court should consider the very significant, separate and distinct interest of the public in both a fair trial and the outcome of the case. See id.
For the reasons discussed above, the court concludes that Attorney Baird's conflict of interest is of the kind that would significantly undermine the public and institutional interest in a fair trial and a just verdict. See State v. Peeler, supra, 265 Conn. at 475. The proffered waiver is not accepted.
For all of the foregoing reasons, the motion to disqualify Attorney Baird is GRANTED. The defendant is ordered to secure alternative counsel to file an appearance in lieu of Attorney Baird within 30 days hereof.
SO ORDERED.