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State v. Kukucka

Court of Appeals of Connecticut

April 24, 2018

STATE OF CONNECTICUT
v.
DALE HOLLISTER KUKUCKA

          Argued October 19, 2017

         Procedural History

         Substitute information charging the defendant with the crimes of strangulation in the first degree, sexual assault in the third degree, unlawful restraint in the first degree, assault in the second degree, and assault in the third degree brought to the Superior Court in the judicial district of Middlesex, where the court, Gold, J., denied the defendant's motion to suppress certain evidence; thereafter, the matter was tried to the jury; verdict of guilty; subsequently, the court rendered judg- ment in accordance with the verdict on the charges of strangulation in the first degree, sexual assault in the third degree, and assault in the third degree, from which the defendant appealed to this court. Affirmed.

          John L. Cordani, Jr., with whom was Damian K. Gunningsmith, for the appellant (defendant).

          Denise B. Smoker, senior assistant state's attorney, with whom were Russell Zentner, senior assistant state's attorney, and, on the brief, Peter A. McShane, state's attorney, for the appellee (state).

          Lavine, Sheldon and Elgo, Js.

          OPINION

          ELGO, J.

         The defendant, Dale Kukucka, appeals from the judgment of conviction, rendered after a jury trial, of strangulation in the first degree in violation of General Statutes § 53a-64aa (a) (1) (B), sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1), and assault in the third degree in violation of General Statutes § 53a-61 (a) (1).[1] On appeal, the defendant claims that the trial court improperly (1) failed to inquire into a potential conflict of interest between him and his defense counsel due to the existence of a grievance filed against defense counsel by the defendant and (2) denied his motion to suppress the in-court and out-of-court identifications of him made by a witness to the assault. We affirm the judgment of the trial court.

         The following facts, which the jury reasonably could have found, are relevant to our resolution of the defendant's appeal. On October 19, 2013, the victim[2] attended a fife and drum corps muster at the Grange Hall in East Haddam with her friend, Jamie Murray (Jamie), and Jamie's family. The event, which was hosted by the Moodus Drum and Fife Corps, featured a parade of approximately twenty fife and drum corps and a beer tent in the afternoon and a bonfire in the evening. Many members of the participating fife and drum corps set up tents and brought recreational vehicles (RVs) to stay overnight on site. At the event, the victim and Erin Murray, Jamie's sister, were serving beer and cider in the beer tent. The defendant, a member of one of the participating fife and drum corps, visited the beer tent multiple times, both alone and with his date, Melody Baker. At approximately 5 p.m., when the defendant attempted to get another beverage from the beer tent after the beverage supply had been exhausted, Patrick Murray (Murray), Jamie's father and an event organizer, told the defendant that they were finished serving drinks. Later, however, the defendant entered the beer tent again. On that occasion, while Murray was cleaning up the beer tent, Murray's daughter, Erin Murray, called for him from the counter of the beer tent and Murray looked in her direction. When Murray looked up and saw the defendant, he firmly told him, once again, that they were out of drinks. Soon thereafter, when Murray saw the defendant approaching the beer tent a third time, he yelled at the defendant: ‘‘We're done. It's gone. Go.''

         Later in the evening, the victim and Jamie walked to the bonfire at the event. While sitting at the bonfire, the victim and Jamie talked with the defendant and Baker. At approximately 11:45 p.m., the victim went to the women's bathroom in the Grange Hall by herself. The victim was washing her hands when someone came up behind her and attacked her, grabbing her neck with his right hand and covering her mouth and part of her nose with his left hand. In the course of resisting her attacker, the victim broke a window with her left elbow and banged on the wall of the bathroom. The victim was not able to remove her assailant's hands from her mouth or throat and ultimately lost consciousness. The victim was not able to identify her assailant following the incident.

         At the same time, Erin McNamara, an event host, and Murray agreed that it was a good time to do a walkthrough of the Grange Hall and close it up for the evening. While McNamara and Murray were walking through the building, they heard grunting and thumping sounds along with sounds of ‘‘glass crunching or breaking'' coming from the women's bathroom at the front of the building. McNamara proceeded to open the door to the bathroom, when she saw the victim lying motionless on the floor and the defendant straddling her. The victim's shirt had been pushed up to just under her breasts and the defendant's hands were under her shirt. McNamara locked eyes with the defendant and ordered him to leave the bathroom. The defendant then moved out of the bathroom. McNamara went directly to the victim, assessed her condition, and recognized that she was Jamie's friend. As the defendant walked out of the bathroom, Murray attempted to take him to the floor, but was unsuccessful. The defendant punched Murray in the face multiple times while they were fighting in the hallway outside the bathroom. During the altercation, the defendant attempted to enter the bathroom once again but McNamara ordered him out. Murray and the defendant resumed fighting after the defendant left the bathroom the second time. During the fight, the defendant hit the crash bar on the main door, pushed it open and ran away.

         McNamara called 911 and was asked by the dispatcher to provide a description of the assailant. McNamara stated that she distinctly saw that he was Caucasian, approximately six feet tall and weighing approximately 220 pounds, who had dark hair and was wearing dark pants and a Kelly green fleece jacket. The police and an ambulance arrived at the scene shortly thereafter. Once the victim regained consciousness, she left the scene in the ambulance for medical treatment.

         Murray gave a statement to the police about what had happened and provided a description of the assailant to Philip Soucy, a trooper with the state police. Approximately ten minutes after Soucy had taken Murray's statement, Baker approached Soucy after she had spoken with people in the area. Baker told Soucy that she knew a man named Dale who people were saying had sexually assaulted a woman. Using her cell phone, Baker showed Soucy a photograph of the defendant from the defendant's Facebook[3] page. With Baker's permission, Soucy took her cell phone and showed the Facebook photograph to Murray.[4] Soucy asked Murray if he recognized anybody in the photograph. Murray responded that he recognized the individual, saying ‘‘that's the guy I took off [the victim].''

         The defendant subsequently was arrested and charged with strangulation in the first degree, sexual assault in the third degree, unlawful restraint in the first degree, assault in the second degree and assault in the third degree. The defendant was tried to a jury, which found him guilty on all counts. The court rendered judgment on the jury's verdict; see footnote 1 of this opinion; sentencing him to a total effective sentence of fifteen years imprisonment, execution suspended after ten years. This appeal followed.

         I

         The defendant first claims that the trial court failed to inquire about a potential conflict of interest between him and his appointed legal counsel, James McKay. Specifically, the defendant argues that the court erred in failing to inquire into the nature of a grievance complaint that he had filed against McKay. We disagree.

         The following additional facts are relevant to our resolution of the defendant's claim. Approximately six months prior to trial, although he was represented by McKay, the defendant filed a self-represented motion for a speedy trial. The motion was heard in court on April 7, 2015. At that time, the defendant claimed that he was disappointed with McKay's representation and asked that a special public defender be appointed for him by the court in lieu of McKay. The court inquired briefly as to the basis of the defendant's dissatisfaction and ultimately continued the case for two days ‘‘so that [the defendant] could have an opportunity to prepare a statement in which he would specifically identify the nature of his dissatisfaction, and point specifically to shortcomings, as he sees it anyway, in . . . McKay's representation.''

         On April 9, 2015, the defendant appeared before the court and provided the court with ‘‘concrete examples of why [he was] dissatisfied.'' First, the defendant expressed his belief that McKay and the prosecution had ‘‘teamed up'' against him, as certain items of evidence had not been disclosed to counsel by the prosecution. Second, the defendant stated that McKay had ‘‘misinformed and manipulated'' him into submitting to a ‘‘psychological evaluation that [McKay] knew, well and good . . . could be used by the prosecution as discovery and outright [lied] to me about the process of this motion he filed.'' Third, the defendant claimed that the delay in trial had resulted in actual and substantial prejudice against him. Lastly, the defendant listed fifteen ‘‘improprieties'' by McKay, including his alleged failures to file motions, to seek pretrial discovery, to raise issues of insufficient evidence, to obtain evidence by discovery, to obtain critical documents, to obtain medical records, to properly advise him, to suppress photographs, to pursue his speedy trial claim, to conduct basic legal research, to visit the crime scene, and to interview the victim. The court addressed each of the defendant's claims, explaining McKay's role in the case to the defendant in great detail. McKay also addressed the court at length, explaining that he was ready to continue representing the defendant zealously.

         Describing the court's response as a ‘‘wonderful representation of conflict resolution, '' the defendant withdrew his motion for the appointment of new counsel. At the same time, the defendant stated to the court that he had filed a grievance against McKay.[5] In response to that statement, McKay stated that the grievance had not been brought to his attention before and that he would be required to respond to it. The court then asked the defendant if he presently intended to pursue the claims in the grievance. The defendant responded, ‘‘that's something I'm gonna have to go home and pray and think about, but the way it's looking right now, probably not.'' (Emphasis added.)

         Three months later, the defendant sent the court a letter dated July 8, 2015, in which he wrote that the court had ‘‘never granted or denied [his] motion for replacement of counsel.'' In the letter, the defendant explained that when he reviewed the April 9, 2015 transcript, he realized that the record did not contain a ruling from the court on his motion for new counsel. The defendant stated: ‘‘I chose to suspend the speedy trial motion so I could pray, ponder, and think about if I felt comfortable continuing to have . . . McKay represent me . . . . I continue to have an open grievance filed against . . . McKay and have responded in writing to his [rebuttal].''

         At the next hearing, on July 14, 2015, the court asked the defendant to clarify his intentions in light of the July 8, 2015 letter and given the court's understanding that his concerns already had been addressed. When the defendant asked the court to rule on his motion for new counsel, the court reminded the defendant that he had withdrawn that motion on April 9, 2015. As the court stated: ‘‘I do not believe there are any motions that I have failed to rule upon. So, I ask you, once again, given the fact that I have received this letter dated July [8, 2015], what is it that you are asking me to do?'' The defendant stated that ‘‘[w]hen [he] suspended [his] motion for a speedy trial . . . [he] was under the impression [he] still needed to go home and to consider, pray and ponder over a difficult decision as to whether or not to retain . . . McKay as counsel.'' The court then explained to the defendant that ‘‘[y]ou are free to file any motions that you want to make. But, right now you keep saying to me you want me to rule on something that you have, previously, withdrawn.'' The defendant then asked the court to consider a ‘‘new motion for replacement of counsel.'' The court responded by ask- ing, ‘‘what will be the reason for that? Are you hiring a new lawyer?'' The defendant responded, ‘‘I am in the process of contemplating and thinking about that, yes, Your Honor.'' The court explained to the defendant that ‘‘unless you're going to present to me [a] compelling reason why there should be a new lawyer then . . . McKay is going to remain [your] lawyer. I am not going to accept, at this point, that you are praying and pondering over whether or not you should retain private counsel. So, if you're hiring private counsel I would, sincerely, and seriously, urge you to tell that lawyer with whom you're engaged in negotiations that the trial is scheduled to begin on September 21.''

         The defendant reiterated that he filed a grievance with the Statewide Grievance Committee but that he had not yet heard back from the committee. The court repeatedly communicated to the defendant that he was free to file another motion for new counsel and to explain why he was not satisfied with McKay. McKay addressed his relationship with the defendant, stating that he was ‘‘perfectly willing and able to proceed.'' Finally, the court advised the defendant: ‘‘If you want to come to me with a motion and tell me why you think you're entitled to new appointed counsel, the ball's in your court and you'll have to file it.'' The defendant thereafter did not file a motion for new counsel, and McKay continued to represent the defendant.

         On appeal, the defendant argues that the court was obligated to inquire into a possible conflict of interest as a result of the grievance complaint that he filed against McKay. ‘‘The sixth amendment to the United States constitution as applied to the states through the fourteenth amendment . . . guarantee[s] . . . a criminal defendant the right to effective assistance of counsel. . . . Where a constitutional right to counsel exists, our [s]ixth [a]mendment cases hold that there is a correlative right to representation that is free from conflicts of interest. . . . This right requires that the assistance of counsel be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests. . . . Moreover, one of the principal safeguards of this right is the rule announced by this court that [a trial] court must explore the possibility of conflict . . . when it knows or reasonably should know of a conflict . . . .'' (Citations omitted; internal quotation marks omitted.) State v. Vega, 259 Conn. 374, 386, 788 A.2d 1221, cert. denied, 537 U.S. 836, 123 S.Ct. 152, 154 L.Ed.2d 56 (2002). ‘‘To safeguard a criminal defendant's right to the effective assistance of counsel, a trial court has an affirmative obligation to explore the possibility of conflict when such conflict is brought to the attention of the trial [court] in a timely manner.'' (Internal quotation marks omitted.) State v. Drakeford, 261 Conn. 420, 427, 802 A.2d 844 (2002).

         Our Supreme Court previously has articulated ‘‘two circumstances under which a trial court has a duty to inquire with respect to a conflict of interest: (1) when there has been a timely conflict objection at trial . . . or (2) when the trial court knows or reasonably should know that a particular conflict exists . . . .'' (Internal quotation marks omitted.) State v. Vega, supra, 259 Conn. 388. The defendant claims that the latter duty applies in this case, arguing that the filing of a grievance complaint triggered a duty to inquire because the court knew or reasonably should have known that a particular conflict existed. It is undisputed that the defendant never raised a conflict objection at trial.[6]

         Our analysis is limited to the actions of the trial court, specifically whether the trial court satisfied its duty to inquire into a potential conflict of interest.[7] We review the defendant's claim as a question of law, as to which our review is plenary. See State v. Parrott, 262 Conn. 276, 286, 811 A.2d 705 (2003). In analyzing the defendant's claim, we look to the definition of an attorney's conflict of interest as articulated by our Supreme Court. An attorney conflict of interest is defined as ‘‘that which impedes his paramount duty of loyalty to his client. . . . Thus, an attorney may be considered to be laboring under an impaired duty of loyalty, and thereby be subject to conflicting interests, because of interests or factors personal to him that are inconsistent, diverse or otherwise discordant with [the interests] of his client . . . .'' (Internal quotation marks omitted.) Id., 287-88.

         The defendant relies on Morgan v. Commissioner of Correction, 87 Conn.App. 126, 866 A.2d 649 (2005), for his claim that the trial court failed in its duty to inquire into the possibility of a conflict of interest. In Morgan, this court considered whether the petitioner had been denied effective assistance of counsel when the habeas court denied his motion to disqualify his attorney without inquiring into the nature of three grievances the petitioner had filed. Id., 127-28. This court concluded that the habeas court's summary denial of the motion to disqualify was improper, in that the habeas court failed to inquire whether the grievances concerned a possible conflict of interest. Id., 142-43. As a result, this court remanded the case for further proceedings to determine the nature of the three grievances. Id., 143; see also In re Ceana R., 177 Conn.App. 758, 771-72, 172 A.3d 870 (2017), cert. denied, 327 Conn. 991, A.3d (2018).

         In Morgan, the petitioner specifically asserted a conflict of interest before the habeas court and claimed that he disagreed with his habeas counsel's trial strategy.[8]Morgan v. Commissioner of Correction, supra, 87 Conn.App. 129. When advised that the petitioner had filed three grievances, the habeas court stated that dissatisfaction with trial counsel's strategy was not a conflict of interest. Id. As this court observed in Morgan, at no point did the habeas court inquire into the nature of the grievances filed against habeas counsel. Id.

         In Vega, which the defendant also cites in support of his claims, defense counsel raised before the trial court the claim that the existence of a grievance which the defendant filed against him gave rise to a per se violation of the right to the effective assistance of counsel. State v.Vega, supra, 259 Conn. 388, 389-90. Like the petitioner in Morgan, the defendant in Vega specifically argued before the trial court that the filing of the grievance gave rise to a conflict of interest. Id., 389-90. Holding that a grievance does not constitute a per se violation of the right to the effective assistance of counsel, the court in Vega also held that the trial court conducted an appropriate inquiry into ...


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