Tamborrino

A jury found defendant guilty of first degree residential robbery, and to be true a firearm use allegation. He admitted two prior serious felony (robbery) convictions. He appeals from the judgment.

*579 Facts

Prosecution’s Case

About 5 p.m. on April 21, as Deborah Clarke entered the front door of an apartment she shared with Tim Dolan, who was then out of town, three men appeared, held guns on her, forced their way into the apartment and ordered her to sit on the couch in the living room and shut up. One of the men held a gun to her head while the other two went through the apartment; she was too scared to look at their faces and did not get a good look at them; she could not see into the bedroom from where she was seated. She described the build of the three men, some facial characteristics, coloring, what they wore and the guns they used. The man who held the gun to her head wore a green and brown camouflage hat which folded down in front and back similar to a hunter’s hat, and the gun was small and fit his hand; another man held a handgun and the third, a gun with a large barrel; they were there about 20 minutes.

When they left, the men took everything they could…

I respectfully dissent.

I agree with the majority in its conclusion the trial court breached the attorney-client privilege by asking a defendant whether he had previously told his lawyer the same version of the facts he was testifying to on the stand. However, I see this error as fundamental and egregious. I find this error constituted a denial of the right to counsel and thus is reversible per se, or if not reversible per se is reversible under the Chapman standard.

The majority opinion repeats most, but not all of the colloquy between the trial judge, the defendant, and the defense attorney. To capture the full flavor of the exchange, I will repeat the entire dialogue.

As will be recalled, it occurred during the presentation of the defendant’s case shortly after appellant for the first time revealed that Deborah Clarke falsely accused him of robbery because he had previously sold her two ounces of bad cocaine. While Mr. Tamborrino was on the stand, the following exchange took place in front of the jury: “The Court: Did you tell your lawyer about the story you just related on the stand?

“[Defense Counsel]: Your Honor, excuse me. I must object to the court’s question. That…

A jury found defendant guilty of first degree residential robbery, and to be true a firearm use allegation. He admitted two prior serious felony (robbery) convictions. He appeals from the judgment.

About 5 p.m. on April 21, as Deborah Clarke entered the front door of an apartment she shared with Tim Dolan, who was then out of town, three men appeared, held guns on her, forced their way into the apartment and ordered her to sit on the couch in the living room and shut up. One of the men held a gun to her head while the other two went through the apartment; she was too scared to look at their faces and did not get a good look at them; she could not see into the bedroom from where she was seated. She described the build of the three men, some facial characteristics, coloring, what they wore and the guns they used. The man who held the gun to her head wore a green and brown camouflage hat which folded down in front and back similar to a hunter's hat, and the gun was small and fit his hand; another man held a handgun and the third, a gun with a large barrel; they were there about 20 minutes.

When they left, the men took everything they could carry including ski…