STATE v. RUSSELL PEELER, SC 19282

Judicial District of Bridgeport

 

†††† †Criminal; Whether Court Violated Defendantís Sixth Amendment Right to Counsel of Choice in Refusing to Order that State Pay Private Attorneyís Fee. †The defendant was charged in two cases with attempted murder, murder and risk of injury to a minor.† The cases arose out of two separate incidents, the first a September, 1997 drive-by shooting that targeted Rudolph Snead, Jr., while Snead was traveling in his car with two children, including Leroy Brown.† The second incident was the shooting death of Snead in May, 1998.† In another case, the state charged the defendant with capital felony in connection with the murder of Leroy Brown and his mother in January, 1999 (the capital felony case).† The state moved that the defendantís private attorney, Gary Mastronardi, be disqualified from representing him in the Snead cases on the ground that it intended to call Mastronardi as a witness in the capital felony case.† The trial court granted the motion to disqualify.† The defendant was subsequently found to be indigent and special public defender Robert Sullivan was appointed to represent him in the Snead cases.† The defendant was convicted on all counts in the Snead cases and he appealed.† With State v. Peeler, 265 Conn. 460 (2003), the Supreme Court reversed and remanded for a new trial, holding that the trial courtís disqualification of Mastronardi violated the defendantís constitutional right to counsel of his choice in that the state had failed to demonstrate a compelling need for Mastronardiís testimony in the capital felony case.† While the defendant wanted Mastronardi to represent him in the retrial of the Snead cases, he no longer had the funds with which to retain private counsel, and Mastronardi was unwilling to represent him at the ďassigned counselĒ rate.† The defendant filed a motion requesting that Mastronardiís fees be paid by the state or, in the alternative, that the charges against him be dismissed.† The trial court denied the motion, finding that it did not have the authority to compel a private attorney to take a case at the rate paid to assigned counsel nor to direct the public defenderís office or any other entity to pay Mastronardi at his private rate.† The trial court further found that the sixth amendment guarantee of counsel of choice extends only in cases where the defendant is able to pay for his own counsel.† Because the defendant is indigent, the trial court again appointed special public defender Sullivan to represent him on retrial and, following the retrial, the defendant was again convicted of the charges.† The defendant appeals, claiming that the trial court failed to follow the Supreme Courtís remand order and violated his sixth amendment rights in refusing to order that taxpayers pay Attorney Mastronardiís fee.† He argues that, as the Supreme Court has determined that he was wrongly denied his right to counsel of his choice in his first trial, his right to the attorney he wants can only be restored if Mastronardi is paid to represent him at his private rate and at public expense.† The defendant takes no position as to whether the fee should be paid by the public defenderís office, the Judicial Branch or the prosecutorís office.