Tyrone Robinson v. Warden, State Prison (2012)

HABEAS

THE COURT:  We are here on the matter of Tyrone Robinson v. Warden.   That is Docket Number CV08–4002623.

All parties please identify themselves for the record.

ATTY. RIMMER:  Good morning, Your Honor.   Attorney Robert Rimmer for the petitioner, who's to my right, and may I ask if his cuffs could be released for the proceeding?

THE COURT:  All right.   Marshals, any issues today?

THE MARSHAL:  No problem, Your Honor.

THE COURT:  All right.   The handcuffs may be removed for today's purposes.

ATTY. GREENALCH:  And for the record, Your Honor, Attorney Richard Keenan Greenalch, Jr., for the respondent warden.

THE COURT:  Anything preliminarily before we get started?

ATTY. RIMMER:  I'm ready to call my first witness.

ATTY. GREENALCH:  Exhibits.

ATTY. RIMMER:  I'm sorry.   Exhibits are in by agreement, Your Honor.

THE COURT:  All right.   All exhibits?

ATTY. GREENALCH:  Yes, Your Honor.

THE CLERK:  For the record, that is Petitioner's Exhibits One through Twenty–One and Respondent's Exhibit A.

THE COURT:  All right.   So those exhibits may be full exhibits by agreement.

(Whereupon, PETITIONER'S EXHIBITS ONE through TWENTY–ONE and RESPONDENT'S EXHIBIT A were admitted into evidence as full exhibits.)

THE COURT:  All right.   Anything else?

ATTY. RIMMER:  Nothing else.   I think we have a video conference at 10:30, so, if at all possible, I'd like to at least begin and with any luck finish a witness by that point.

THE COURT:  Okay.

ATTY. RIMMER:  I'd call George Flores as the petitioner's first witness.

And Your Honor, for the record, Attorney Flores has representation here this morning.

ATTY. DOW:  Good morning, Your Honor.   May I address the court?

THE COURT:  You may.

ATTY. DOW:  My name is William Dow. I represent Mr. Flores.

THE COURT:  Okay. Good morning, sir.

ATTY. DOW:  Good morning, Your Honor.

* * * *

GEORGE FLORES, called as a witness by the petitioner, having been first duly sworn by the clerk, testified under oath as follows:

THE CLERK:  Please state your name and spell your last name.

THE WITNESS:  George Flores, F-l-o-r-e-s.

THE CLERK:  And please state your business address for the court.

THE WITNESS:  101 Lafayette Street, Hartford, Connecticut 06106.

ATTY. RIMMER:  May I proceed, Your Honor?

THE COURT:  Yes.

DIRECT EXAMINATION BY ATTY. RIMMER:

Q Good morning, Mr. Flores.

A Good morning.

Q Do you recall representing Mr. Tyrone Robinson in any pre-trial and trial proceedings in criminal court in Hartford?

A Yes.

Q And do you remember the general allegations against Mr. Robinson?

ATTY. DOW:  Excuse me, Your Honor.   I'm going to direct my client to invoke his Fifth Amendment privilege with respect to that.

THE COURT:  With respect to what?

ATTY. DOW:  To that question and the response to that question.

THE COURT:  Did he remember representing him?

ATTY. DOW:  Yes.

THE COURT:  Okay. And how would that tend—

ATTY. DOW:  The record should reflect that Mr. Flores has ․ There are outstanding charges against Mr. Flores at the present time and any answer might tend to incriminate him.

THE COURT:  As to the current charges he has outstanding against him?

ATTY. DOW:  Yes. My concern, if I could perhaps make it clearer, is that any response to any question would tend to open ․ could constitute a waiver that would allow further questions with respect to that representation and that would lead to incriminatory matters.

THE COURT:  Let me pose this to you.   There has been some discussion with regards to an indication that there might be questions about the current charges pending against Attorney Flores, which I, frankly, indicated to counsel, on a matter that occurred in 2008, I would likely find irrelevant.

ATTY. DOW:  If Your Honor is indicating that his response to this question would not constitute a waiver, then I would allow him to answer this question.   I'm concerned about a finding that there would be a waiver and then we get into the Fifth Amendment problem obviously.

THE COURT:  That's another issue.   All right.   You know what we're going to need to do?   Because that's ․ that's actually, frankly, not the issue I was aware of, that there may be ․ that is, frankly, not the issue I thought, so let me do this.

In all honesty, what I need to do is I need to take a few minutes just to look into this issue because I was not aware that it was the current issue and the fear of opening the door, so ․

ATTY. DOW:  It's an open—If I could ․ I don't mean to interrupt, Your Honor.   It's an opening of the door problem that I see.

THE COURT:  Right.

ATTY. DOW:  And that's, I think, the safest course and as his counsel I will direct him to invoke his Fifth Amendment privilege, unless Your Honor were to rule otherwise.

THE COURT:  All right.   What we'll do is, I know we've got this other video conference at 10:30, but this is, frankly, obviously a significantly important issue, so what we're going to do is we're going to take a recess right now.   I, frankly, want to look into this now that I know what exactly the issue is to make a fair ruling on this.

Attorney Rimmer, you look like you have something to say.

ATTY. RIMMER:  I do.   I just want ․ I wonder if I could approach the bench as you leave the bench to alert you to an issue, potential issue with the 10:30 video link, so you can be aware of that, and to the extent you need to devote some thought to that, you can do that as well.

THE COURT:  I was informed by the clerk coming up, they said an IT issue.

ATTY. RIMMER:  No, it's not an IT issue.   It's a legal issue that I would like to bring to your attention that you're probably not aware of right now.

THE COURT:  Sure. What's that?

ATTY. RIMMER:  Well, okay.

(Counsel approached the bench and at this time court was in recess and later reconvened.)

THE COURT:  All right.   What the court's going to do is this.   It's not necessary for Attorney Flores to take the stand.

As we all know, the court took a recess and did look into, researched the issue and, frankly, as the circumstances stand today, would have to be inclined to grant, and that's for lack of a better word, to allow Attorney Flores, based on the circumstances, to invoke his Fifth Amendment rights, based on the fact that theoretically any question, even if the court found that his current circumstances potentially could be irrelevant to his conduct in 2008, clearly knowledge of that would allow the petitioner's counsel to inquire of conduct that was going on back in 2008, and answering any of those questions under the law could reasonably open the door to Attorney Flores potentially having to answer questions that may incriminate himself.

Based on that, and I've had conversations with all counsel, I gave the petitioner's attorney and the petitioner the option of—Since he should not be penalized and essentially deems that the testimony may be relevant, I gave the petitioner the option to request essentially a stay of these proceedings, of these matters beyond the time when Attorney Flores' criminal charges might be resolved and other issues may take him beyond what theoretically could be deemed the statute of limitations for any potential criminal conduct, and I believe the petitioner is electing to request that the court stay this matter and we would select some trial date sometime towards the end of 2013.   Am I correct, counsel?

ATTY. RIMMER:  That's correct, Your Honor.

THE COURT:  And again, I don't believe the respondent has any objection.   That would be without any prejudice whatsoever attaching and, effectively, the court will consider that this matter, although Attorney Flores did take the stand, for all intents and purposes, the court would consider that this matter ․ that no evidence was presented and that this matter never proceeded, so that there's no prejudice at this point that would attach to the petitioner.

ATTY. GREENALCH:  For the record, Your Honor, no objection.

THE COURT:  All right.   So what the court would do then, under all those circumstances, is just simply order a continuance or stay of the trial of this matter.   And Attorney Rimmer, what I would suggest you do is at some point in the future you talk with your client.

And I just want to say, Mr. Robinson, just so the record's clear, have you had a chance to—Stand up, please.   Have you had a chance to talk to your attorney about this issue?

THE PETITIONER:  Yes.

THE COURT:  All right.   And after having a chance to talk with your attorney about this issue and he's ․ I know it was a brief conversation, but he's been able to sort of give you an idea of, at least a brief discussion of the issues that are going on here and effectively that one of your main attorneys, I would have to grant him the right not to testify here today, and having discussed that with your attorney, you're in agreement with not going forward today and having your trial continued, which would likely be sometime the end of next summer based on the considerations that we're going forward with here, and I just want to make sure you understand and you're okay with that, sir.

THE PETITIONER:  Yes.

THE COURT:  All right.   Anything else for the record before we—and we'll leave the exhibits.   You know, the exhibits are marked, they're in the trial, and so if and when we ․ whenever we start the next time, counsel will have that in the file, all right, and we'll just consider them filed exhibits.

Anything additional from any counsel for the record?

ATTY. RIMMER:  No, Your Honor.

THE COURT:  All right.   Again, so we'll order the matter continued.   Attorney Rimmer, what you likely need to do is just claim the matter to some status conference list in the future, and I will order a transcript of today's proceedings and that should be placed in the file and, therefore, whoever is sitting here when the matter shows up, whoever's sitting on the status conference or the trial list will have an understanding of why we continued the matter, and then you claim it to a status conference list and then you can explain when or how you need the trial date to be scheduled, Attorney Rimmer.

ATTY. RIMMER:  Yes. Thank you.

ATTY. GREENALCH:  Your Honor ․ and I don't know if you want to do this on the record, but because we have the witness on the other side, I notice the microphone's off on the other side.   I don't know if you want to ․ Who should explain to the—

THE COURT:  I'll explain to him.

ATTY. GREENALCH:  Okay.

THE COURT:  All right.   So thank you, counsel.   So we'll continue ․ this matter is continued and I'm going to advise the witness.

ATTY. DOW:  May I be excused with my client?

THE COURT:  Yes, you can, Attorney Dow. Thank you.

ATTY. DOW:  Thank you very much.

THE COURT:  All right.   Sir, again, this is Judge Newson here from Connecticut.   What's happened, sir, because of some matters that are going on on this end, this case has been continued and in all likelihood there won't be a trial in this matter until sometime at the end of next summer, so your testimony will not be necessary for today's purposes.

I understand from the attorneys you may have had some issues and there may have been a request for counsel and/or some other potential issues with your testimony.   All I can say for you today is it's not necessary that we take any of that up and, if necessary, whenever this matter is rescheduled for trial, we can take up those issues.   Okay, sir?

THE VIDEO WITNESS:  Okay.

THE COURT:  Okay. Thank you, sir.

All right.   So, again, we'll stand adjourned here until 10 a.m. tomorrow morning.

(Whereupon, court adjourned.)

Newson, John M., J.