State v. Peeler ( 2016 )

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STATE OF CONNECTICUT v. RUSSELL PEELER
(SC 19282)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued December 14, 2015—officially released March 8, 2016
Lisa J. Steele, assigned counsel, for the appellant
(defendant).
Emily D. Trudeau, deputy assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Joseph Corradino, senior assistant state’s
attorney, for the appellee (state).
Opinion
ROBINSON, J. This appeal requires us to consider
the extent to which a criminal defendant is entitled to
representation by a particular attorney at a new trial
ordered in accordance with United States v. Gonzalez-
Lopez, 548 U.S. 140, 126 S. Ct. 2557, 165 L. Ed. 2d 409
(2006), as the remedy for the violation of his right to
counsel of choice under the sixth amendment to the
United States constitution, when that defendant has
become indigent and cannot afford to retain that attor-
ney’s services for the new trial. The defendant, Russell
Peeler, appeals1 from the judgment of the trial court
in two consolidated cases, rendered after a jury trial
conducted on remand from this court’s decision in State
v. Peeler, 265 Conn. 460, 828 A.2d 1216 (2003), cert.
denied, 541 U.S. 1029, 124 S. Ct. 2094, 158 L. Ed. 2d 710
(2004) (Peeler I), convicting him of attempted murder
in violation of General Statutes § 53a-49 (a) and General
Statutes (Rev. to 1997) § 53a-54a (a), two counts of risk
of injury to a child in violation of General Statutes (Rev.
to 1997) § 53-21 (1), and murder in violation of General
Statutes (Rev. to 1997) § 53a-54a (a). On appeal, the
defendant claims that the trial court improperly failed
to effectuate the remedy ordered by this court in Peeler I
for the improper disqualification of his chosen attorney,
Gary Mastronardi, when it denied his motion to require
the state to pay Mastronardi’s private fee rates, because
he had become indigent and Mastronardi would not
represent him at the new trial at the rate paid to assigned
counsel by the Division of Public Defender Services
(division).2 We disagree and, accordingly, we affirm the
judgment of the trial court.
The record reveals the following relevant facts and
procedural history regarding the two consolidated
cases underlying the present appeal. ‘‘In the first case,
the state alleged that, on September 2, 1997, in the
vicinity of 500 Lindley Street in Bridgeport, the defen-
dant had attempted to murder Rudolph Snead, Jr., his
partner in a crack cocaine operation, by shooting at
[him] while in his car, and that the defendant thereby
had committed risk of injury to the two minor children,
Leroy Brown, Jr., and Tyree Snead, both seven years
of age, who were in the backseat of [Rudolph] Snead’s
car during the shooting. All three of the victims were
identified by name in the police arrest warrant affidavit
dated September 11, 1997, and in the second substitute
information filed January 20, 1998. In the second case,
the state alleged that on May 29, 1998, while he was free
on bond following his arrest for the drive-by shooting in
the first case, the defendant, who had covered his face
to conceal his identity, murdered [Rudolph] Snead at
the Boston Avenue Barbershop in Bridgeport. The
defendant was represented initially by Frank Riccio in
connection with the first case and, thereafter, by . . .
Mastronardi, who filed his appearance on July 23, 1998,
in connection with both cases.
‘‘Following the consolidation of the two cases, on
August 11, 1998, the state filed a motion for a protective
order to preclude disclosure to the defense of the iden-
tity of certain witnesses, including the two minor vic-
tims, Brown and Tyree Snead. At the hearing on that
motion, held on October 6, 1998, the trial court, Ronan,
J., provided Mastronardi with two alternatives: (1) the
court would order disclosure of the names and
addresses of the state’s witnesses to Mastronardi, but
would prohibit him from disclosing that information to
the defendant; or (2) the court would grant the defen-
dant’s discovery motion with the names and addresses
redacted. The court assured Mastronardi that, prior to
trial, he would be able to share the information with
the defendant to prepare his defense. Mastronardi
advised the court that he knew that there were two
minors involved in the drive-by shooting and that he
and the defendant already knew their names. On
December 9, 1998, the court nevertheless issued an
order precluding Mastronardi from disclosing to the
defendant the names and addresses of any witnesses
who had given statements to the police. Pursuant to that
court order, on or about December 23, 1998, [S]enior
[A]ssistant [S]tate’s [A]ttorney C. Robert Satti, Jr., pro-
vided Mastronardi with the statement by Brown regard-
ing the drive-by shooting and filed with the clerk of the
court notice of service of disclosure with an attached
supplemental disclosure listing, inter alia, the statement
given by Brown.
‘‘Tragically, on January 7, 1999, Brown and his
mother, Karen Clarke, were brutally murdered in their
apartment on Earl Avenue in Bridgeport, where they
recently had moved. The state thereafter charged the
defendant and his brother, Adrian Peeler, in a third
case with those murders, and John Walkley filed an
appearance as a special public defender for the defen-
dant in connection with the Brown and Clarke murders.3
‘‘On June 9, 1999, the state moved to disqualify Mas-
tronardi from representing the defendant in the two
cases involving [Rudolph] Snead on the ground that the
state intended to call Mastronardi as a witness in the
defendant’s capital felony case for the murder of Brown
and Clarke.’’ (Footnote altered.) Id., 463–65. After a
hearing, the trial court, Thim, J., granted the state’s
motion to disqualify Mastronardi, concluding that ‘‘ ‘one
of the core issues in the case is . . . [what] knowledge
[the defendant] had about Brown’s potential testimony
and when and how he obtained that knowledge.’ ’’ Id.,
467. Mastronardi then returned the unearned balance
of his retainer to the defendant, and the trial court then
appointed Attorney Robert Sullivan as assigned counsel
to represent the defendant. Id.
‘‘Following a jury trial, the defendant was convicted
of all four charges in connection with [two] cases
[involving Rudolph Snead] and sentenced to a total
effective sentence of 105 years incarceration after the
sentence enhancement pursuant to General Statutes
§ 53-202k was imposed.’’4 Id., 468. The defendant
appealed from the judgment of conviction directly to
this court, claiming that, ‘‘in the absence of a compelling
need for Mastronardi’s testimony at the trial involving
the Brown and Clarke homicides, the trial court improp-
erly granted the state’s motion to disqualify Mastronardi
in the [two] cases [involving Rudolph Snead]. The defen-
dant contend[ed] that he was denied his constitutional
right to counsel of choice under the state and federal
constitutions because the state did not demonstrate a
compelling need for Mastronardi’s testimony.’’ Id., 469;
see also Wheat v. United States, 486 U.S. 153, 164, 108
S. Ct. 1692, 100 L. Ed. 2d 140 (1988); Ullmann v. State,
230 Conn. 698, 716–17, 647 A.2d 324 (1994). This court
agreed with the defendant and reversed the judgment
of conviction, concluding that the improper disqualifi-
cation of Mastronardi was structural error requiring a
new trial. Peeler I, supra, 265 Conn. 475, 478.
On remand, the trial court, Devlin, J., convened a
status conference to determine which attorney would
represent the defendant at his new trial, observing that
this case was now the oldest matter pending on the
judicial district’s docket. Sullivan again entered an
appearance on behalf of the defendant as assigned
counsel, and appeared with him at that conference, at
which Mastronardi also was present. The trial court
stated that the defendant now appeared indigent, inso-
far as the division was representing him, either directly
or through assigned counsel, in other pending appeals
and habeas corpus matters. In response to the court’s
inquiry, Mastronardi stated that he did not ‘‘believe that
[he] would be able’’ to represent the defendant,
explaining that the defendant had made ‘‘substantial
payments toward the trial,’’ and that ‘‘after my disqualifi-
cation, I returned all of that money to designated mem-
bers of his family. So, therefore . . . I’m not holding
any trial fee at all anymore, so I would not be in a
position at this time to represent [the defendant].’’5 Sulli-
van advised the court that the defendant no longer could
afford to pay Mastronardi’s private rates because of his
indigency, and that Sullivan did not expect the division
to be willing to pay for Mastronardi to represent the
defendant at those rates. Mastronardi, in turn, stated
that he would not represent the defendant at the divi-
sion’s assigned counsel fee rates. Sullivan then stated
that the defendant intended to file a motion asking the
court to order the state to fund Mastronardi’s private
fee, or, alternatively, to dismiss the charges against
the defendant.
The defendant subsequently filed that motion, asking
the court either to require the state to provide funding
for his counsel of choice, or, alternatively, to dismiss
the charges against him.6 At a hearing on that motion,
the parties established that the defendant was now indi-
gent and that the division would not pay Mastronardi’s
private fee rates for the defendant’s representation.7
The trial court clarified its understanding that Mastro-
nardi would not accept assigned counsel rates to repre-
sent the defendant, and stated that it would not compel
him to do so. The trial court then disagreed with the
defendant’s claim that he was entitled to have the state
pay for Mastronardi to represent him at his retrial,
rejecting his argument that not doing so would render
the constitutional remedy in this court’s decision in
Peeler I ‘‘meaningless’’ because it would mean that this
court ‘‘is basically sending [the case] back to have
another trial with another counsel not of his choice.’’8
The trial court denied the defendant’s motion, relying
on Caplin & Drysdale, Chartered v. United States, 491
U.S. 617, 109 S. Ct. 2646, 105 L. Ed. 2d 528 (1989), to
conclude that his argument ‘‘focus[ed] in on one phrase
in [Peeler I, supra, 265 Conn. 476] to the exclusion of
really a much broader context supported by a lot of
law, around the country, that the right to . . . private
counsel means the right to privately compensated coun-
sel. That’s our history in America. . . . [U]ntil we had
public defenders, that’s how people got [attorneys], they
paid for them. And so I do not see the fact that [the
defendant’s] economic circumstances have now
changed to the point where he’s unable to afford coun-
sel to be a justification for either dismissing—basically
not putting him to trial on . . . this case.’’ The trial
court further denied the defendant’s request for ‘‘public
funding of . . . Mastronardi’s fee,’’ concluding that
Peeler I did not require it. Accordingly, the trial court
scheduled the matter for a trial at which Sullivan would
represent the defendant.9
Subsequently, the case was tried to a jury, which
returned a verdict finding the defendant guilty on all
counts. The trial court, Kavanewsky, J., then rendered
a judgment of conviction in accordance with the jury’s
verdict, and sentenced the defendant to a total effective
sentence of 105 years imprisonment to be served con-
secutive to any sentence that the defendant was cur-
rently serving. This direct appeal followed.
On appeal, the defendant argues that the trial court
improperly denied his motion to require the state to
pay Mastronardi’s fees to represent him at his new trial,
or in the alternative, to dismiss the charges against him.
He contends that to ‘‘deprive him again of Mastronardi’s
services at retrial violates the spirit and the letter’’ of
Peeler I, asking rhetorically: ‘‘What would be the point
of remanding the case for a new trial because of an
erroneous deprivation of his choice of counsel if [the
defendant] would be represented in that trial by the
same attorney who replaced his choice of counsel in
the first trial?’’ Although the defendant acknowledges
that, ‘‘if [he] had never been able to afford private coun-
sel, he could not reject the public defender’s services
and insist that public funds be used to retain a specific
private attorney’’; see, e.g., Caplin & Drysdale, Char-
tered v. United States, supra, 491 U.S. 624–25; Wheat
v. United States, supra, 486 U.S. 159; he nevertheless
argues that the order of this court in Peeler I remanding
the case for a new trial because of the improper disquali-
fication of Mastronardi, consistent with United States
v. Gonzalez-Lopez, supra, 548 U.S. 150, renders this
case distinguishable from that of a ‘‘typical . . . indi-
gent defendant dissatisfied with his assigned attorney.’’
In response, the state contends that the defendant’s
requested remedy in this appeal, namely, a third trial
at which Mastronardi would be paid to represent him,
‘‘goes well beyond the relief ordered’’ in Peeler I, and
that the sole remedy for the violation of a criminal
defendant’s right to counsel of choice is a new trial,
with the defendant’s financial resources at that point
dictating the breadth of his choice of counsel. To this
end, the state emphasizes that the court’s order of a
new trial in Peeler I already afforded the defendant a
‘‘significant benefit’’ in the form of a ‘‘mulligan.’’
Describing the right to counsel of choice as a ‘‘legal
concept, not an individual attorney who could be dead,
disbarred, retired, or simply unwilling to take on the
defendant’s case,’’ the state posits that it would be
‘‘impossible to go further and guarantee the defendant
[that] he would be represented by . . . Mastronardi at
the retrial.’’ Noting the lack of directly on point author-
ity, the state relies on United States v. Childress, 58
F.3d 693 (D.C. Cir. 1995) (per curiam), cert. denied, 516
U.S. 1098, 116 S. Ct. 825, 133 L. Ed. 2d 768 (1996), for
the proposition that the trial court has no duty to do
anything on remand beyond inquire about whether ‘‘the
previously disqualified counsel is willing to resume rep-
resentation at a rate the defendant can afford, and, if
the disqualified counsel is unwilling to do so, there is
no error when the trial court assigns a different attorney
and proceeds to trial.’’ We agree with the state, and
conclude that the defendant was not entitled to anything
more than a new trial on remand, with his options
for legal representation determined by the conditions
existing at the time of his new trial, including whether
Mastronardi was willing and able to represent him at
a mutually agreeable fee.
We begin with the applicable standard of review.
Whether an indigent defendant is entitled to the services
of a particular attorney at a new trial ordered by an
appellate court, as a remedy for the violation of his
right to counsel of choice, is a question of constitutional
law over which our review is plenary. See, e.g., H. P.
T. v. Commissioner of Correction, 310 Conn. 606, 612–
13, 79 A.3d 54 (2013).
Our analysis is guided by the following general princi-
ples concerning the right to counsel of choice under
the sixth amendment to the United States constitution,
which provides that, ‘‘[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the [a]ssis-
tance of [c]ounsel for his [defense]. We have previously
held that an element of this right is the right of a defen-
dant who does not require appointed counsel to choose
who will represent him. . . . [T]he [s]ixth [a]mend-
ment guarantees a defendant the right to be represented
by an otherwise qualified attorney whom that defendant
can afford to hire, or who is willing to represent the
defendant even though he is without funds.’’10 (Citations
omitted; internal quotation marks omitted.) United
States v. Gonzalez-Lopez, supra, 548 U.S. 144, quoting
Caplin & Drysdale, Chartered v. United States, supra,
491 U.S. 624–25; Wheat v. United States, supra, 486 U.S.
159; see also, e.g., Peeler I, supra, 265 Conn. 471–72.
‘‘To be sure, the right to counsel of choice is circum-
scribed in several important respects.’’ (Internal quota-
tion marks omitted.) United States v. Gonzalez-Lopez,
supra, 548 U.S. 144. Significantly, ‘‘a defendant may not
insist on representation by an attorney he cannot afford
or who for other reasons declines to represent the
defendant.’’ Wheat v. United States, supra, 486 U.S. 159.
‘‘[T]he right to counsel of choice does not extend to
defendants who require counsel to be appointed for
them. . . . Nor may a defendant insist on representa-
tion by a person who is not a member of the bar, or
demand that a court honor his waiver of conflict-free
representation. . . . We have recognized a trial court’s
wide latitude in balancing the right to counsel of choice
against the needs of fairness . . . and against the
demands of its calendar . . . . The court has, more-
over, an independent interest in ensuring that criminal
trials are conducted within the ethical standards of the
profession and that legal proceedings appear fair to all
who observe them.’’ (Citations omitted; internal quota-
tion marks omitted.) United States v. Gonzalez-Lopez,
supra, 151–52, citing Caplin & Drysdale, Chartered v.
United States, supra, 491 U.S. 624–26; Wheat v. United
States, supra, 159–60; Morris v. Slappy, 461 U.S. 1,
11–12, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983).
In Gonzalez-Lopez, the United States Supreme Court
held that ‘‘erroneous deprivation of the right to counsel
of choice, with consequences that are necessarily
unquantifiable and indeterminate, unquestionably quali-
fies as structural error.’’11 (Internal quotation marks
omitted.) United States v. Gonzalez-Lopez, supra, 548
U.S. 150. The Supreme Court was, however, silent about
whether the defendant is constitutionally entitled to
representation by his previously disqualified attorney
at that new trial, regardless of any change in circum-
stances at that time, such as the defendant becoming
indigent. See id., 152. Our rescript in Peeler I is similarly
silent, directing remand for a ‘‘new trial’’ with no further
qualification after concluding that ‘‘[u]nder the particu-
lar circumstances of this case, because the state did
not demonstrate the compelling need for Mastronardi’s
testimony . . . the appropriate remedy for this court
is to order a new trial.’’12 (Citation omitted.) Peeler I,
supra, 265 Conn. 478. Indeed, as both parties recognize,
this case appears to present a question of first impres-
sion nationally, as neither the parties’ briefs, nor our
independent research, reveals any case law directly
on point.13
The most persuasive authority we have found in this
context is the decision of the United States Court of
Appeals for the District of Columbia Circuit in United
States v. Childress, supra, 58 F.3d 693, on which the
state relies heavily to support its argument that a defen-
dant is not guaranteed representation by a particular
attorney at a new trial ordered to remedy an earlier
counsel of choice violation. Childress was a complex
appeal that arose from three trials at which twenty-
nine defendants were charged with narcotics, murder,
and conspiracy charges. Id., 733–34. One of the defen-
dants in that case, Columbus Daniels, was convicted
of, inter alia, conspiracy to distribute cocaine and mur-
der in the second and third trials, respectively, and
sought reversal of his convictions on the ground that
the trial court violated his right to counsel of choice
by sua sponte disqualifying his retained attorney, R.
Kenneth Mundy. Id. The court concluded that Mundy
had been properly disqualified at the second trial, but
agreed with Daniels’ argument that the trial court had
improperly failed to consider whether Mundy could
represent him at the third trial because the possibility
of the conflict was no longer present by the time of
that trial. Id., 734–35. A gap in the record with respect
to whether Mundy ‘‘would have been willing and able
to represent Daniels [at the third] trial,’’ however, left
the court unable to determine whether the trial court
had actually violated Daniels’ right to choice of counsel
at the third trial. Id., 735. Accordingly, the District of
Columbia Circuit remanded the case to the trial court
‘‘for an inquiry into whether Mundy would have been
willing and able to reenter the case,’’ with direction to
order a new trial ‘‘[i]f, after a hearing, the [trial] court
concludes that Mundy would have reentered the case
on financial terms that Daniels could have met . . . .’’14
(Emphasis added.) Id., 736.
The remedies ordered by the District of Columbia
Circuit in Childress provide strong support for the
state’s argument that a defendant is not guaranteed
representation by his previously disqualified attorney
at his new trial. First, the court contemplated a new
trial as a remedy for any counsel of choice violation,
despite the fact that Mundy, the improperly disqualified
attorney, had died during the pendency of Daniels’
appeal and, therefore, would not be able to represent
him at that new trial.15 See id. (‘‘Mundy’s death . . .
does not moot this issue because the deprivation of his
counsel of choice would entitle Daniels to a reversal
of his conviction as a matter of constitutional right.
. . . Mundy’s death does not deprive the [trial] court
of its power to grant Daniels the relief to which he
would be entitled.’’ [Citation omitted.]). Second, the
court emphasized that Daniels’ right to counsel of
choice at a new trial would depend on his resources
available at that time, stating: ‘‘Should the government
elect to retry Daniels on these charges, Daniels must
be afforded a reasonable opportunity to retain new
counsel of choice with his own resources and be pro-
vided with court-appointed counsel if he proves unable
to do so.’’ (Emphasis added.) Id. Thus, Childress pro-
vides strong support for the proposition that the sole
remedy for the violation of the defendant’s right to
counsel of choice is a new trial, with the defendant’s
entitlement to counsel of choice at that proceeding
determined by conditions, financial and otherwise,
existing at the time of remand.16
Beyond Childress, courts have acknowledged in
other contexts that a defendant’s choice of counsel at
a new trial is determined by circumstances existing at
that time, even when the new trial is ordered to remedy
an earlier choice of counsel violation. For example, in
holding that a pretrial ruling order denying a criminal
defendant the right to retained counsel of choice is
subject to interlocutory appeal under the Ohio statute
providing for appellate review in criminal cases, the
Ohio Supreme Court observed that ‘‘postconviction
reversal of the trial court’s judgment would not be auto-
matically effective. A criminal defendant might
exhaust his or her resources during the first trial,
thereby denying that defendant the counsel of his or
her choice.’’ (Emphasis added.) State v. Chambliss, 128
Ohio St. 3d 507, 511, 947 N.E.2d 651 (2011); see also
State ex rel. Keenan v. Calabrese, 69 Ohio St. 3d 176, 180,
631 N.E.2d 119 (1994) (Wright, J., concurring) (joining
decision holding that order disqualifying criminal
defense counsel is not appealable final judgment, but
expressing concern that ‘‘the solution in this case that
a [postconviction] appeal is an adequate remedy at law
may well be illusory’’), superseded by statute as stated
in State v. Chambliss, supra, 510–11. Similarly, in dis-
senting from a decision concluding that orders disquali-
fying criminal defense counsel are not immediately
appealable, Justice Zappala of the Pennsylvania
Supreme Court described numerous ‘‘consequences of
forcing a defendant to wait until after judgment to
appeal a disqualification order,’’ including that ‘‘the
defendant’s chosen counsel may not be available for a
second trial due to illness, relocation, or other work that
prevents him or her from representing the defendant in
a new trial. If this is the case, then the defendant’s
right will have been irreparably lost. There is also the
possibility that a defendant may not have the financial
resources to obtain the originally chosen attorney a
second time. Additionally, the defendant might be hesi-
tant to confide in the new attorney after having been
stripped of his or her first attorney.’’17 (Emphasis
added.) Commonwealth v. Johnson, 550 Pa. 298, 310,
705 A.2d 830 (1998); see also id., 309 (deeming it ‘‘funda-
mentally unfair to require a defendant to proceed to
trial without counsel of choice and incur the attendant
counsel fees in order to vindicate on appeal the right
to be represented by the attorney initially retained’’).
In our view, these cases concerning the efficacy of
waiting until a postjudgment appeal to address potential
choice of counsel violations support the state’s position
that the defendant’s right to representation by his coun-
sel of choice may change over time, namely, between
his first trial and a new trial ordered after a success-
ful appeal.18
Moreover, we agree with the state that the fact of a
new trial by itself generally inures to the benefit of the
defendant, regardless of who represents him at that
trial. See Morris v. Slappy, supra, 461 U.S. 15 (‘‘[t]he
spectacle of repeated trials to establish the truth about
a single criminal episode inevitably places burdens on
the system in terms of witnesses, records, and fading
memories, to say nothing of misusing judicial
resources’’); accord State v. Payne, 260 Conn. 446, 464–
66, 797 A.2d 1088 (2002) (discussing ‘‘institutional
costs’’ of ordering new trial as sanction for deliberate
prosecutorial improprieties, including witnesses’ poten-
tial unavailability and memory loss). Thus, the new
trial itself serves as a sanction for the violation of the
defendant’s right to counsel of choice, in addition to
affording the defendant another opportunity to exercise
that right.
Accordingly, we conclude that, on remand for a new
trial to remedy the violation of a criminal defendant’s
right to counsel of choice; see United States v. Gonza-
lez-Lopez, supra, 548 U.S. 150; the trial court is required
to consider whether it is feasible to allow the defendant
the attorney of his choice at that new trial. If the defen-
dant wishes to engage the services of the attorney who
previously had been unable to represent him because
of the choice of counsel violation, and that attorney is
willing and able to represent that defendant at his new
trial under a mutually acceptable fee arrangement,
including by assignment if the defendant has become
indigent, the trial court should have that attorney repre-
sent the defendant at the new trial.19 If, however, that
attorney is unwilling or unable to represent the defen-
dant at the new trial at a mutually agreeable fee, the
defendant’s sole relief lies in the new trial itself and
the hiring or appointment of new counsel.20 See United
States v. Childress, supra, 58 F.3d 736; see also Caplin &
Drysdale, Chartered v. United States, supra, 491 U.S.
624–25; Wheat v. United States, supra, 486 U.S. 159.
Turning to the record in the present case, the trial
court properly protected the defendant’s right to coun-
sel of choice by considering the extent to which Mastro-
nardi was willing and able to represent the defendant
at his new trial on remand from Peeler I. Given the
court’s determination that Mastronardi was not avail-
able to represent the defendant because the defendant
was indigent and Mastronardi would not accept
assigned counsel rates to represent him,21 we conclude
that the trial court did not violate the defendant’s right
to counsel of choice at his new trial by denying his
funding motion.22
The judgment is affirmed.
In this opinion the other justices concurred.
1
The defendant appeals directly to this court pursuant to General Statutes
§ 51-199 (b) (3).
2
As the parties observe, the division now refers to attorneys in private
practice appointed to represent indigent criminal defendants as ‘‘assigned
counsel’’; it previously had referred to them as ‘‘special public defenders.’’
In this opinion, we refer to such attorneys as assigned counsel unless quoting
from judicial opinions or transcripts using the former parlance.
3
With respect to the Brown and Clarke murders, ‘‘the defendant was
convicted of one count of murder in violation of General Statutes [Rev. to
1999] § 53a-54a (a), two counts of capital felony in violation of General
Statutes (Rev. to 1999) § 53a-54b (8) and (9), respectively, and one count
of conspiracy to commit murder in violation of [General Statutes (Rev. to
1999) § 53a-54a (a) and General Statutes § 53a-48 (a)].’’ (Footnotes omitted.)
State v. Peeler, 271 Conn. 338, 343–44, 857 A.2d 808 (2004), cert. denied,
546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005) (Peeler II). In convicting
the defendant of these charges, the jury found that the defendant had
arranged for Adrian to kill Brown and Clarke, with the aid of two other
people. Id., 352–55. The state sought the death penalty, and following a
penalty phase hearing, the jury deadlocked on whether to sentence the
defendant to death. Id., 355–56. The trial court then denied the state’s motion
for a mistrial, ‘‘subsequently dismissed the penalty phase proceedings, ren-
dered a judgment of guilty in accordance with the verdict and, merging the
two capital felony counts and the murder count, sentenced the defendant
to a total effective sentence of life imprisonment without the possibility of
release.’’ Id., 356–57. Following appeals by the state and the defendant from
this judgment, this court affirmed the defendant’s convictions in Peeler II,
but reversed the sentence of life imprisonment without the possibility of
release, and remanded the case for a new penalty phase hearing. Id., 456;
see also id., 422–23 (agreeing with state’s claim that trial court improperly
denied its motion for mistrial and improperly instructed jury that deadlock
would result in sentence of life imprisonment without parole). After a new
penalty phase hearing was held on remand from Peeler II, a jury unanimously
concluded that a death sentence was appropriate, and the trial court ren-
dered judgment in accordance with the jury’s verdict, from which the defen-
dant again appealed to this court. That appeal remains pending before this
court under Docket No. SC 18125.
4
‘‘Additionally, the court, [Thim, J.] pursuant to a motion by the state,
consolidated all of the cases against the defendant with the case against his
brother, Adrian Peeler, in connection with the Brown and Clarke homicides.
Later, the trial court, Ford, J., granted the defendant’s motion to sever the
cases against him involving [Rudolph] Snead from the capital felony cases
against the defendant and his brother involving Brown and Clarke.’’ Peeler
I, supra, 265 Conn. 468.
5
Mastronardi advised the court that he and the defendant had entered
into a fee arrangement requiring the payment of separate pretrial and trial
fees. He stated that he had refunded the trial portion of the fee to the
defendant.
6
The defendant also sought, and the trial court denied, dismissal on double
jeopardy grounds. The defendant does not challenge that aspect of the trial
court’s ruling in the present appeal.
7
There was some discussion about the amount of trial fees that Mastro-
nardi had returned to the defendant, with the defendant arguing through
Sullivan that the fee Mastronardi had negotiated at the defendant’s first trial
was based on dramatically different circumstances, insofar as the new trial
presented far more significant discovery and trial preparation obligations.
8
The defendant argued that the state was obligated to pay Mastronardi
to represent him because the state had created the problem by filing the
original motion to disqualify Mastronardi, emphasizing that the defendant
had the ability to pay Mastronardi at the time of the original motion. The
defendant also argued that not paying Mastronardi to represent him would
require dismissal of the charges against him because it would mean that
the violation of his right to counsel of choice could not be remedied.
9
Acknowledging the defendant’s expressed intention to file an interlocu-
tory appeal from this decision, the trial court stated that the trial date would
be subject to any appellate stays. The defendant did not, however, file an
interlocutory appeal; he observes in his brief in this appeal that: ‘‘In general,
an order disqualifying counsel is not immediately appealable.’’ But see foot-
note 18 of this opinion.
10
In his brief, the defendant also relies on the state constitutional right
to counsel. See Conn. Const., art. I, § 8. Because he does not provide any
independent analysis asserting greater protections under the state constitu-
tion; see, e.g., State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d 1225 (1992);
‘‘we deem abandoned any state constitutional . . . claim. . . . Accord-
ingly, we analyze the defendant’s . . . claim under the federal constitution
only.’’ (Citation omitted.) State v. Skok, 318 Conn. 699, 701–702 n.3, 122 A.3d
608 (2015).
11
In so concluding, the Supreme Court observed that: ‘‘Different attorneys
will pursue different strategies with regard to investigation and discovery,
development of the theory of defense, selection of the jury, presentation of
the witnesses, and style of witness examination and jury argument. And the
choice of attorney will affect whether and on what terms the defendant
cooperates with the prosecution, plea bargains, or decides instead to go to
trial. In light of these myriad aspects of representation, the erroneous denial
of counsel bears directly on the framework within which the trial proceeds
. . . or indeed on whether it proceeds at all. It is impossible to know what
different choices the rejected counsel would have made, and then to quantify
the impact of those different choices on the outcome of the proceedings.
Many counseled decisions, including those involving plea bargains and coop-
eration with the government, do not even concern the conduct of the trial
at all. [Harmless error] analysis in such a context would be a speculative
inquiry into what might have occurred in an alternate universe.’’ (Citation
omitted; internal quotation marks omitted.) United States v. Gonzalez-
Lopez, supra, 548 U.S. 150.
12
As the defendant recognized in arguing this case to the trial court, this
court stated in the body of its opinion in Peeler I that, ‘‘if the trial court in the
present case improperly disqualified Mastronardi, the appropriate remedy is
to reverse the judgment of conviction and grant the defendant a new trial
with his counsel of choice.’’ Peeler I, supra, 265 Conn. 476. This court did
not, however, provide in Peeler I: (1) any citation to support the proposition
that the defendant is guaranteed the right to representation by his counsel
of choice at his new trial, regardless of any change in circumstance; or (2)
guidance with respect to what would happen if the defendant’s chosen
counsel were not available, willing, or able to represent him on remand.
13
Our independent research reveals several decisions from other state
courts with language similar to Peeler I, supra, 265 Conn. 476, in the body
or rescript portions of opinions, stating that remand for a new trial with
counsel of choice is the appropriate remedy for choice of counsel violations.
See State v. Roberts, 569 So. 2d 671, 677 (La. App. 1990) (stating that remedy
for improper denial of continuance to engage new attorney ‘‘is to reverse
[the defendant’s] conviction and sentence and remand the case for a new
trial with counsel of his choice’’); People v. Johnson, 215 Mich. App. 658,
670, 673, 547 N.W.2d 65 (1996) (reversing conviction and remanding case
‘‘for a new trial before a different judge in accordance with this opinion,’’
at which ‘‘defendant may be represented by [improperly disqualified public
defender] if he requests such representation’’), appeal dismissed, 560 N.W.2d
638 (Mich. 1997); Commonwealth v. Rucker, 563 Pa. 347, 352, 761 A.2d 541
(2000) (stating that ‘‘[a]ppellant is entitled to a new trial with representation
to be provided by his privately-retained counsel,’’ with rescript stating that
‘‘[j]udgment of sentence [is] reversed, and a new trial [is] granted’’); Com-
monwealth v. Prysock, 972 A.2d 539, 545 (Pa. Super. 2009) (reversing denial
of motion for continuance to allow defendant to substitute retained counsel
for public defender, with rescript remanding case ‘‘for a new trial with
retained counsel’’). Like Peeler I, however, none of these cases provide any
guidance, either directly or through their subsequent history, with respect
to further remedies should the defendant no longer be able to retain his
choice of counsel on retrial.
14
Alternatively, the District of Columbia Circuit stated: ‘‘If, on remand,
the district court concludes that Mundy would not have reentered the case
on terms that Daniels could have met, we hold that Daniels was not denied
counsel of choice and that his murder . . . [conviction] must stand.’’ United
States v. Childress, supra, 58 F.3d 736.
15
We note that one member of the panel in Childress disagreed with the
majority’s conclusion that Mundy’s death did not moot Daniels’ appeal.
United States v. Childress, supra, 58 F.3d 736–37 (Williams, J., dissenting
in part). The dissenting judge stated that this aspect of Daniels’ appeal was
moot insofar as a retrial was not an appropriate remedy because, ‘‘[o]n any
retrial, there are only two possibilities for [Daniels’] representation. First,
Daniels may be as unable as he was before to find someone who will
represent him for what he could pay, so that he might again receive appointed
counsel. In that case, the retrial would be an exact duplicate of the first
one in all matters relevant to this issue. On the other hand, Daniels may
now be able to arrange for paid counsel. But Daniels never claimed he was
forbidden from using paid counsel other than Mundy, and a retrial under
these circumstances would be responsive only to an error never claimed
and give Daniels something completely different from what (by hypothesis)
the trial court erroneously denied. Against the very slight value of this
relief—relief that is at best only marginally responsive to the error made—
stand the costs of requiring a new trial.’’ (Emphasis omitted.) Id., 737. Thus,
the dissenting judge concluded that ‘‘it would be better to let the error go
uncorrected than to force the system to incur the burdens of another trial,
welcome as the prospect of such a windfall may be to Daniels.’’ Id.
16
In a footnote in his reply brief, the defendant appears to acknowledge
that his right to representation by Mastronardi at his new trial is not absolute,
positing that the substitution of assigned counsel would be appropriate if
Mastronardi had become ‘‘incapacitated, disbarred, or no longer willing to
represent’’ him on remand—just as that measure would be appropriate had
those events happened at the time of the first trial. See Practice Book § 3-
10 (c). This concession, however, belies the weakness in the defendant’s
constitutional argument, which seeks the sixth amendment equivalent of
time travel with respect to the restoration of his right of counsel of choice.
17
The majority in Commonwealth v. Johnson, 550 Pa. 298, 305–306, 705
A.2d 830 (1998), did not respond to these points, stating only that: ‘‘Like
the denial of a suppression motion, an order disqualifying counsel is review-
able after [a] judgment of sentence. If a judgment is obtained and it is
determined on appeal that the trial court improperly removed counsel, the
right to counsel of choice is not lost. There will be a new trial and the
defendant will have his counsel of choice.’’
18
We note that whether the granting of a motion to disqualify counsel in
a criminal case is an appealable final judgment under State v. Curcio, 191
Conn. 27, 31, 463 A.2d 566 (1983), appears to be an open question under
this court’s case law. See State v. Vumback, 247 Conn. 929, 932–33, 719 A.2d
1172 (1998) (Berdon, J., dissenting from denial of certification) (concluding
that Burger & Burger, Inc. v. Murren, 202 Conn. 660, 669–70, 522 A.2d
812 [1987], which held that disqualification of attorney in civil case is not
appealable final judgment, did not overrule, in criminal cases, that aspect
of State v. Rapuano, 192 Conn. 228, 229 n.1, 471 A.2d 240 [1984], which
held to contrary, and that majority’s decision not to grant certification
‘‘threatens the fundamental right of an accused to counsel of his choice’’);
but see Peeler I, supra, 265 Conn. 469 n.7 (discussing Flanagan v. United
States, 465 U.S. 259, 269, 104 S. Ct. 1051, 79 L. Ed. 2d 288 [1984], which
held that disqualification order is not appealable final judgment in federal
appellate courts); State v. Lantz, 120 Conn. App. 817, 820–21, 993 A.2d 1013
(2010) (disqualification of counsel in violation of probation proceeding,
which is civil matter, is not appealable final judgment). We note that the
federal courts and our sister state courts are split on this question. Compare,
e.g., Flanagan v. United States, supra, 269 (disqualification of criminal
defense counsel is not appealable final judgment), and Commonwealth v.
Johnson, supra, 550 Pa. 305–306 (same), with, e.g., Stearnes v. Clinton, 780
S.W.2d 216, 225 (Tex. Crim. App. 1989) (An interlocutory appeal is appro-
priate to challenge a removal of appointed counsel because ‘‘a criminal
defendant should not be subjected to a trial and appeal process without
the appointed counsel he had grown to accept and gain confidence in. The
utilization of the appellate process in this situation to correct this particular
ill would be too burdensome and would only aggravate the harm and most
likely would result in a new trial compelling relator to again endure a trip
through the system, creating in turn needless additional cost to the taxpayers
of this state.’’ [Footnote omitted.]), and State v. Chambliss, supra, 128 Ohio
St. 3d 511 (‘‘a pretrial ruling removing a criminal defendant’s retained counsel
of choice is a final order, subject to immediate appeal’’).
19
We note that the defendant expressly disclaims any argument that the
trial court should have compelled Mastronardi to represent him at the
assigned counsel rate. We do, however, agree with the defendant that, had
Mastronardi been willing to accept assigned counsel rates, the trial court
could have exercised its discretion to appoint Mastronardi to represent the
defendant at his new trial—regardless of whether Mastronardi is on the
assigned counsel list maintained by the Chief Public Defender pursuant to
General Statutes § 51-291 (11). See General Statutes § 51-293 (a) (2) (judges
to appoint assigned counsel in ‘‘an appropriate case’’ ‘‘[w]henever possible’’
from Chief Public Defender’s list).
20
We note that the defendant considers it ‘‘iron[ic]’’ that he was repre-
sented by Sullivan at his new trial, despite the fact that Sullivan was
appointed to represent him at his first trial after the trial court had improperly
disqualified Mastronardi. To this end, the defendant posits in a footnote in
his reply brief that, in ‘‘light of the remand, it might be appropriate to permit
[him] to request a different assigned counsel if he could find one willing to
represent him who might make different strategic and tactical choices than
the attorney who represented him’’ at the first trial. Because the defendant
fails to point to anything in the record indicating his dissatisfaction with
representation by Sullivan at the second trial—beyond the fact that Sullivan
is not Mastronardi—we decline to consider the extent to which the defendant
was entitled to different assigned counsel on remand in connection with
the remedy for his counsel of choice violation.
21
Because we conclude that the defendant was not entitled to state paid
representation by Mastronardi on remand given his changed financial cir-
cumstances, we need not consider his arguments that the mechanics of
such payments would be governed by State v. Wang, 312 Conn. 222, 92 A.3d
220 (2014).
22
We briefly address the defendant’s claim that he is entitled to dismissal
as a remedy for the violation of his right to counsel of choice. Acknowledging
that dismissal is ‘‘a harsh sanction,’’ he posits that ‘‘it may be the only
available sanction if this court rejects having his chosen counsel paid at
public expense.’’ The defendant contends that not utilizing dismissal in
cases like this one ‘‘leaves the defendant without remedy and provides little
disincentive for the state to attempt to disqualify counsel—if the motion is
successful, by the time the case is appealed and remanded, many defendants
will have exhausted their resources and be unable to exercise their right
to chosen counsel on remand. The prospect of dismissal in such rare circum-
stances provides an alternative sanction to a violation otherwise without
practical remedy.’’ The defendant further emphasizes that dismissal is appro-
priate in this ‘‘unique’’ case because ‘‘it would not have any practical effect
on the length of [his] incarceration,’’ as he already is serving a life sentence
on federal charges, and faces either the death penalty or life without parole
as a result of the convictions pertaining to the murder of Brown and Clarke.
See footnote 3 of this opinion. We disagree with the defendant’s arguments
in support of dismissal.
First, the defendant’s entreaty aside, we do not have the luxury of ignoring
the precedential effect of our decisions, even in apparently ‘‘unique’’ cases
like this one. See, e.g., Stuart v. Stuart, 297 Conn. 26, 45–46, 996 A.2d 259
(2010). Second, we acknowledge that dismissal may well be an appropriate
sanction for counsel of choice violations that result from severe prosecu-
torial impropriety. See United States v. Stein, 495 F. Supp. 2d 390, 427–28
(S.D.N.Y. 2007) (dismissing indictments against defendants, who were
employees of accounting firm, because of federal prosecutors ‘‘deliberately’’
and ‘‘callously’’ took actions, pursuant to cooperation policy outlined in
Department of Justice ‘‘Thompson Memorandum,’’ to coerce, via threat of
indictment, accounting firm to change its policy of paying attorney’s fees
for personnel, which had effect of depriving defendants of their counsel of
choice in complex tax fraud case); accord State v. Lenarz, 301 Conn. 417,
451, 22 A.3d 536 (2011) (ordering dismissal to avert ‘‘miscarriage of justice’’
when ‘‘prosecutor clearly invaded privileged communications that contained
a detailed, explicit road map of the defendant’s trial strategy’’ and failed to
disclose invasion before trying ‘‘case to conclusion more than one year after
the invasion occurred’’), cert. denied, U.S. , 132 S. Ct. 1095, 181 L. Ed.
2d 977 (2012). Although a majority of this court determined in Peeler I that the
trial court had abused its discretion in ruling on the state’s disqualification
motion, the record in this case does not disclose even a colorable claim of
egregious and severe prosecutorial interference with the defendant’s right
to choice of counsel that would warrant dismissal, insofar as the state’s
disqualification motion was consistent with the prosecutor’s duty to act in
good faith to ‘‘protect the case against conflicts of interest’’—the discharge
of which requires the prosecutor to notify the court of the existence of
‘‘potential conflicts of interest’’ that affect defense counsel’s representation
of the defendant. United States v. McKeighan, 685 F.3d 956, 969 (10th Cir.),
cert. denied, U.S. , 133 S. Ct. 632, 184 L. Ed. 2d 411 (2012).