Judicial District of Tolland at Rockville


     Habeas; Whether Stipulation of Facts Entered into by Defense Counsel with the Prosecutor, Which was Later Admitted into Evidence at Trial, Created an Actual Conflict of Interest Requiring Automatic Reversal of the Petitioner's Murder Conviction.  On May 24, 1994, the petitioner strangled his girlfriend and hid her body in a storage bin at a private storage facility.  Subsequently, the petitioner told his attorney, Mark Kostecki, that he had killed the victim and where the body was located.  Kostecki drafted a written consent to search the storage bin, which the petitioner signed.  Kostecki turned the consent form over to the police and accompanied them in their search of the storage bin.  The police opened the bin with a key provided to them by Kostecki.  Kostecki informed the police that the individual from whom he had obtained the key was in his office.  Inside the storage bin, the police found the victim's body.  The petitioner was subsequently arrested and charged with the victim's murder.  At the probable cause hearing, attorney Kostecki and the prosecutor entered into a stipulation of facts detailing what role Kostecki played in the police's discovery of the victim's body.  Kostecki, however, continued to represent the petitioner.  At trial, the petitioner claimed that he did not intend to kill the victim and asserted the affirmative defense of extreme emotional disturbance.  The stipulation of facts was admitted into evidence without objection.  After trial, a three judge panel found the petitioner guilty of murder.  Subsequently, the petitioner filed a petition for a writ of habeas corpus, claiming that the stipulation of facts constituted, in fact, adverse testimony by Kostecki that created an actual conflict of interest requiring automatic reversal of his murder conviction.  The petitioner asserted that the stipulation relieved the prosecution of its burden of proving all the elements of the charged crime and exposed Kostecki to the possibility that the prosecution could call him to testify as to some or all of the facts contained in the stipulation.  This, according to the petitioner, demonstrated that Kostecki's interests were divergent from the petitioner's.  The habeas court found that Kostecki adopted the stipulation as a matter of trial strategy

and that he informed the petitioner of its contents.  It noted that the information contained in the stipulation was not confidential or privileged and could have been adduced through the testimony of other witnesses.  Additionally, the court found that, even if the police had not received any information from Kostecki, the police, in all likelihood, would have eventually discovered the victim's body and concluded that the petitioner was responsible for her death.  In light of these findings and conclusions, the habeas court determined that the stipulation did not create a divergence of interest between Kostecki and the petitioner and, therefore, Kostecki was not burdened by an actual conflict of interest.  Alternatively, even assuming a conflict of interest existed, the court stated that the petitioner still could not prevail because he failed to prove that the conflict adversely affected Kostecki's performance.  Accordingly, the habeas court dismissed the petitioner's habeas petition.  In this appeal, the Supreme Court will review the habeas court's decision.