State v. Barjon , 186 Conn. App. 320 ( 2018 )

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STATE OF CONNECTICUT v. JEAN BARJON
(AC 40477)
Keller, Moll and Beach, Js.
Syllabus
Convicted of the crimes of robbery in the first degree, conspiracy to commit
robbery in the first degree, robbery in the second degree and conspiracy
to commit robbery in the second degree, the defendant appealed to this
court. The defendant’s conviction stemmed from an incident in which
he and three conspirators, including T, robbed the victim, the owner of
a grocery store. During the pretrial criminal proceedings against the
defendant, S represented both the defendant and T, who was tried in
a separate proceeding. The state and the defendant, who entered a plea
of not guilty, were not able to agree upon a disposition, and the case
was placed on the trial list. Subsequently, S appeared in court with the
defendant, who had communicated his intention to plead guilty under
the Alford doctrine to the charge of conspiracy to commit robbery in
the first degree. During the defendant’s plea canvass, the trial court
questioned the defendant as to his reasons for pleading guilty, and
subsequently declined to accept the defendant’s plea. The court then
addressed S about a potential issue regarding his continuing to represent
both the defendant and T, granted S’s motion to withdraw as counsel
for the defendant, and continued the defendant’s case to enable him to
obtain new counsel. The defendant’s case proceeded to trial, and the
jury found him guilty on all counts. On appeal, the defendant claimed
that the trial court violated his right to conflict free representation by not
inquiring into a potential conflict prior to the defendant’s plea canvass
hearing. Specifically, he claimed, inter alia, that once the pretrial discus-
sion concerning his acceptance of a plea broke down and the case was
placed on the trial list, the court should have known of the conflict of
interest and inquired about it on the record. Held that the defendant
could not prevail on his claim that the trial court violated his constitu-
tional right to conflict free representation by not timely inquiring about
possible conflicts: there was no indication in the record that an actual
conflict existed at any point during the pretrial proceedings, as there
was no indication that plea negotiations had broken down when the
case was placed on the trial list, especially given that the defendant
attempted to plead guilty, the court had no affirmative duty to inquire
into the possibility of a conflict because no indication of a conflict,
other than the mere fact of joint representation, existed, and, contrary
to the defendant’s claim, the court did not err in assuming that potential
conflict issues had been resolved, as the record did not show that the
court was specifically apprised of a potential conflict, other than joint
representation itself, until S raised the issue at the defendant’s plea
canvass; moreover, the defendant’s claim that the fact that he was
prepared to make a statement to his detriment and to the benefit of T
indicated a conflict requiring reversal was unavailing, as any possibility
of an actual conflict was averted when the trial court made proper
inquiry at the time that the defendant pleaded guilty, declined to accept
the defendant’s guilty plea, and allowed S to withdraw as counsel, and
the defendant’s claim that, when S withdrew from representation, subse-
quent counsel did not have adequate time to interview witnesses and
to conduct his own investigation of the case was not properly before
this court, as this court’s review was limited to allegations that the
defendant’s constitutional rights had been jeopardized by the actions
of the trial court, rather than those of counsel, and there was no ruling
of the trial court regarding the performance of subsequent counsel in
the record.
Argued September 11—officially released December 4, 2018
Procedural History
Substitute information charging the defendant with
the crimes of robbery in the first degree, conspiracy to
commit robbery in the first degree, robbery in the sec-
ond degree and conspiracy to commit robbery in the
second degree, brought to the Superior Court in the
judicial district of Fairfield, geographical area number
two, and tried to the jury before Thim, J.; verdict and
judgment of guilty, from which the defendant appealed
to this court. Affirmed.
Stephen A. Lebedevitch, assigned counsel, for the
appellant (defendant).
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Joseph J. Harry, senior assistant state’s
attorney, for the appellee (state).
Opinion
BEACH, J. The defendant, Jean Barjon, appeals from
the judgment of conviction, rendered after a jury trial,
of robbery in the first degree in violation of General
Statutes § 53a-134 (a) (2), conspiracy to commit robbery
in the first degree in violation of General Statutes
§§ 53a-48 and 53a-134 (a) (2), robbery in the second
degree in violation of General Statutes (Rev. to 2011)
§ 53a-135 (a) (1), and conspiracy to commit robbery in
the second degree in violation of § 53a-48 and General
Statutes (Rev. to 2011) § 53a-135 (a) (1).1 On appeal,
the defendant claims that the trial court violated his
right to conflict free counsel under the sixth amendment
to the United States constitution and article first, § 8,
of the Connecticut constitution. We affirm the judgment
of the trial court.
The defendant and his codefendant, Jacques Louis,
were tried together. In State v. Louis, 163 Conn. App.
55, 58–60,134 A.3d 648, cert. denied, 320 Conn. 929, 133
A.3d 461 (2016), this court held that a jury reasonably
could have found the following facts: ‘‘On December
28, 2011, at approximately 8:15 p.m., [Louis], [the defen-
dant], Tinesse Tilus, and Guailletemps Jean-Philippe
(conspirators) together entered the Caribbean-Ameri-
can Market (market) on Wood Avenue in Bridgeport.
They called for the owner, Rene Adolph, who was in
the kitchen cooking, to come out. Adolph recognized
Tilus and [the defendant], but not [Louis] and Jean-
Philippe, who stood on either side of him. The conspira-
tors demanded money from Adolph, and Jean-Philippe
displayed a firearm. Adolph, fearing for his life, ran
from the market to the laundry next door and called
out for help. [Louis], [the defendant], and Tilus chased
Adolph, who held the door to the laundry closed as
[Louis] attempted to open it. Margarita Avcolt, a laundry
employee, observed the activity, and telephoned the
police. She saw one man trying to open the door and
two others standing a ‘meter’ away.
‘‘Meanwhile, Jean-Philippe, who had remained in the
market, walked into the walled-in area occupied by the
cashier, Ramon Tavares. Jean-Philippe displayed his
gun and ordered Tavares to give him money. Jean-Phil-
ippe took the money Tavares gave him, as well as his
phone.
‘‘Back at the laundry, Adolph saw a police cruiser
passing by, so he ran out and flagged down Officer
Elizabeth Santoro. The three conspirators, who had
followed Adolph to the laundry, ran and got into a car.
Adolph pointed to the three conspirators in the car, who
were getting ready to ‘take off.’ Adolph told Santoro
that the men had tried to rob him. He also pointed to
Jean-Philippe, who by that time was running away from
the market on Wood Avenue. Adolph saw him ‘toss the
gun.’ Santoro was able to detain Jean-Philippe, and told
[the defendant], the driver of the car, not to move. Tilus
and [Louis] were passengers in the car. According to
Santoro, all of the conspirators were dressed in suits
as if they were going somewhere.
‘‘Officer Christopher Martin arrived on the scene as
backup for Santoro. Martin seized $635 from Jean-Phil-
ippe and found a loaded, operable firearm that Jean-
Philippe had discarded near a trash receptacle. A fire-
arms expert, Marshall Robinson, examined the gun that
Martin recovered and the casings it ejected when fired.
As part of his investigation, Robinson learned that the
gun had been used to fire cartridges in an incident in
New Jersey. Both [Louis] and Jean-Philippe were from
New Jersey.
‘‘[Louis] and [the defendant] were each charged with
robbery in the first degree, conspiracy to commit rob-
bery in the first degree, robbery in the second degree,
and conspiracy to commit robbery in the second degree,
and stood trial together. [Louis’] theory of defense was
that he was ‘merely present’ at the time of the robbery
and that Adolph’s testimony was not believable. [The
defendant] also claimed that he merely was present at
the time of the robbery, that Adolph was not credible,
and that Jean-Philippe acted alone in order to collect
an unpaid debt from Adolph, who allegedly ran an illegal
lottery from the market.’’
From the outset of the criminal proceedings against
the defendant, Attorney Eroll Skyers represented both
the defendant and Tilus, who had criminal charges aris-
ing from the same events pending against him but was
tried in a separate proceeding. On February 7, 2012,
the defendant entered a plea of not guilty to the charges.
Over the course of the following months, the state and
the defendant were not able to agree upon a disposition,
and the case was placed on the trial list. On October
2, 2012, Attorney Skyers appeared in court with the
defendant, who at that time had communicated through
counsel his intention to plead guilty under the Alford2
doctrine to the charge of conspiracy to commit robbery
in the first degree. The following colloquy occurred
between the trial court, Devlin, J., and the defendant
during the plea canvass:
‘‘The Court: Do you believe, Mr. Barjon, that even
though you disagree with [the prosecutor’s statement
of facts], even though you don’t agree that it happened
the way the prosecutor said, do you think [that] if you
went to trial and . . . they put forward their evidence
in court, there’s at least a risk that the jury might believe
their side of the case and convict you on this charge
and the other charge pending against you. Do you think
there’s a chance of that?
‘‘[The Defendant]: No, not so ever. No.
‘‘The Court: All right. So, why are you pleading guilty?
‘‘[The Defendant]: I’m risking . . . losing my job, tak-
ing time—I already have a job, I have a good job of
making sixty something thousand dollars every year.
‘‘The Court: Right.
‘‘[The Defendant]: So, taking [time] off every day to
come to court, to trial every day. And then I take the
plea to help my friend that I put in trouble for not
doing anything—
‘‘The Court: Right, but you know—
‘‘[The Defendant]: —Tinesse
‘‘The Court: But—
‘‘[The Defendant]: So, I do it in my heart.
‘‘The Court: Yes, but here’s the thing, Mr. Barjon, the
plea bargain here calls for a potential sentence of up
to four years in jail. You know that, right?
‘‘[The Defendant]: Well . . . my lawyer said . . .
they’re . . . right to argue.
‘‘The Court: Right. But there’s no guarantee you’re
going to get less than that, there’s none whatsoever.
So, you should not be pleading guilty thinking you’re
going to go back to work on the day of your sentencing.
You should not do that. If you’re . . . taking this plea
to keep your job or taking this plea to—and really,
honestly, Mr. Barjon, while I commend your . . . con-
cern about your friend, this is your decision to make,
and you need to make it based on your own interests.
Okay. . . .
‘‘The Court: . . . So, I can’t take your plea, Mr. Bar-
jon, if you’re not going to acknowledge there’s at least
a risk that you could be convicted.’’
After the court declined to accept the defendant’s
plea, it addressed Attorney Skyers about a potential
problem regarding his continuing to represent both the
defendant and Tilus:
‘‘The Court: . . . Okay. So, what’s the situation? So,
I’ve called in Mr. Barjon and Mr. Tilus for trial. From
the very first moment they came to our court, they were
jointly represented by—by yourself, Attorney Skyers.
And now it looks like, as we had before, [we’re] unable
to resolve the case on any kind of a plea negotiation.
We have a judge available. And these cases are going
to start trial. But . . . my understanding is that you
believe there’s some problem . . . at this point . . .
[with] your representation of both defendants?
‘‘Attorney Skyers: I— I—
‘‘The Court: Well, I don’t know, maybe these further
discussions [have] clarified that. I’m not sure. But if
there is, this is the time to put [it] on the record, so we
can address it directly.
‘‘Attorney Skyers: At the time—that’s correct. At the
time that Mr. Barjon and Mr. Tilus came to my office,
I indicated to both of them that potentially there could
be a conflict for my representation of both. Do you
agree with that, Mr. Barjon?
‘‘[The Defendant]: Yes, I did.
‘‘Attorney Skyers: And they persisted in their desire
to have me represent them. And so, what I represented
was that in the event that there could not be a disposi-
tion without trial, that at that point the conflict would
have come to a real crux, and that I was suggesting to
Mr. Barjon that he would have to have his own counsel
representing him and he understood that. Is that not so?
‘‘[The Defendant]: Yes.
‘‘Attorney Skyers: And so, that coming here this morn-
ing prior to court opening up the session, I indicated
that likely that’s where we were today, and that Mr.
Barjon would probably have to get his own counsel
unless we were able to dispose of this by plea.
‘‘The Court: See, that’s very unfair to the court
because the court goes through a process where we
talk about these cases, we work out the discovery, we
make a proposal to settle the cases. Sometimes that
works, sometimes it doesn’t. But then the case moves
to being [on] a trial list. And I assume that all [of] these
issues about potential conflicts are . . . resolved. I
mean . . . to me this is highly inappropriate.’’
The court subsequently granted Attorney Skyers’
motion to withdraw as counsel for the defendant and
continued the defendant’s case to enable the defendant
to obtain new counsel. The defendant’s case proceeded
to trial in January, 2013, and the jury found the defen-
dant guilty on all counts. The court subsequently sen-
tenced the defendant to a total effective sentence of
ten years of incarceration, execution suspended after
five years, followed by five years of probation. This
appeal followed.
On appeal, the defendant argues that the trial court
violated his right to conflict free representation by not
inquiring into a potential conflict prior to the colloquy
on October 2, 2012. We disagree.
We begin our analysis of the defendant’s claim by
setting forth the applicable law and standard of review.
The defendant’s claim that the court violated his right
to conflict free representation by not timely inquiring
about possible conflicts presents a question of law and,
therefore, our review is plenary. See State v. Parrott,
262 Conn. 276, 285–86, 811 A.2d 705 (2003).
‘‘The sixth amendment to the United States constitu-
tion as applied to the states through the fourteenth
amendment, and article first, § 8, of the Connecticut
constitution, guarantee to a criminal defendant the right
to effective assistance of counsel. . . . Where a consti-
tutional right to counsel exists, our Sixth Amendment
cases hold that there is a correlative right to representa-
tion that is free from conflicts of interest.’’ (Citations
omitted; footnote omitted; internal quotation marks
omitted.) State v. Crespo, 246 Conn. 665, 685, 718 A.2d
925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911,
142 L. Ed. 2d 909 (1999). ‘‘This right applies not only
to the trial itself, but to any critical stage of a criminal
proceeding.’’ State v. Gaines, 257 Conn. 695, 706–707,
778 A.2d 919 (2001).
‘‘Cases involving conflicts of interest usually arise in
the context of representation of multiple codefendants
by one attorney where the attorney adduces evidence
or advances arguments on behalf of one defendant that
are damaging to the interests of the other defendant.’’
(Internal quotation marks omitted.) State v. Tilus, 157
Conn. App. 453, 466, 117 A.3d 920 (2015), appeal dis-
missed, 323 Conn. 784, 151 A.3d 382 (2016). Neverthe-
less, ‘‘permitting a single attorney to represent
codefendants, often referred to as joint representation,
is not per se violative of constitutional guarantees of
effective assistance of counsel. This principle recog-
nizes that in some cases multiple defendants can appro-
priately be represented by one attorney; indeed, in some
cases, certain advantages might accrue from joint repre-
sentation.’’ Holloway v. Arkansas, 435 U.S. 475, 482, 98
S. Ct. 1173, 55 L. Ed. 2d 426 (1978); see also State v.
Navarro, 172 Conn. App. 472, 481, 160 A.3d 1116, cert.
denied, 326 Conn. 910, 164 A.3d 681 (2017). ‘‘An attorney
has an actual, as opposed to a potential, conflict of
interest when, during the course of the representation,
the attorney’s and defendant’s interests diverge with
respect to a material factual or legal issue or to a course
of action. . . . An attorney has a potential conflict of
interest if the interests of the defendant may place the
attorney under inconsistent duties at some time in the
future.’’ (Citations omitted; emphasis added; internal
quotation marks omitted.) United States v. Perez, 325
F.3d 115, 125 (2d Cir. 2003); see also State v. Tilus,
supra, 466.
‘‘The trial court has a duty to explore the possibility
of a conflict when it is alerted to the fact that the
defendant’s constitutional right to conflict free counsel
is in jeopardy.’’ State v. Tilus, supra, 157 Conn. App. 466.
‘‘The purpose of the court’s inquiry . . . is to determine
whether there is an actual or potential conflict, and,
if there is an actual conflict, to inquire whether the
defendant chooses to waive the conflict or whether the
attorney must withdraw.’’ (Emphasis added.) State v.
Figueroa, 143 Conn. App. 216, 226, 67 A.3d 308 (2013).
‘‘This obligation arises not only when there has been a
timely conflict objection at trial, but also when the
trial court knows or reasonably should know that a
particular conflict exists.’’ (Emphasis added; internal
quotation marks omitted.) Id., 224. The trial court is
not required ‘‘to inquire into the existence of a vague,
unspecified possibility of conflict, such as that which
inheres in almost every instance of [joint] representa-
tion.’’ (Internal quotation marks omitted.) State v.
Navarro, supra, 172 Conn. App. 484.
In the present case, the record does not show that
any actual conflict existed prior to the colloquy on
October 2, 2012. The defendant claims that ‘‘[o]nce the
pretrial discussion of a plea being accepted by the
defendant broke down, the case being placed on the
trial list, and the continued representation of both the
defendant and . . . Tilus by Attorney Skyers, the court
should have known of the conflict of interest and
inquired on the record of both parties.’’
There is no indication in the record that an actual
conflict existed at any point during the pretrial proceed-
ings. There is no record that plea negotiations ‘‘broke
down’’ when the case was placed on the trial list, as
the defendant claims; indeed, the defendant attempted
to plead guilty on October 2, 2012. The understanding
between Attorney Skyers and the defendant, according
to representations on the record on October 2, 2012,
was that if the case could not be resolved by a plea
bargain, Attorney Skyers would withdraw. The fact that
Attorney Skyers did not withdraw prior to that time
suggests that plea discussions were continuing and had
not, in fact, broken down. The defendant’s assertion to
the contrary is not supported by the record.3
‘‘In the absence of an affirmative duty by the trial
court to inquire . . . a defendant who raised no objec-
tion at trial must demonstrate that an actual conflict
of interest adversely affected his lawyer’s performance
in order to obtain reversal of his conviction.’’ (Internal
quotation marks omitted.) State v. Crespo, supra, 246
Conn. 686, citing Cuyler v. Sullivan, 446 U.S. 335, 348,
100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980); see also Festo
v. Luckart, 191 Conn. 622, 626–31, 469 A.2d 1181 (1983).
As previously noted, on the record of this case, the court
had no affirmative duty to inquire into the possibility
of a conflict because no indication of a conflict, other
than the mere fact of joint representation, existed. See
State v. Navarro, supra, 172 Conn. App. 483–84. The
defendant did not press the issue of a conflict at trial,
and he also has failed to show that an actual conflict
of interest existed. Pursuant to Crespo, therefore, there
was no violation of his right to conflict-free represen-
tation.
Additionally, the defendant claims that the court
erred in assuming that potential conflict issues had been
resolved. This argument is without merit. ‘‘It is firmly
established that a trial court is entitled to rely on the
silence of the defendant and his attorney, even in the
absence of inquiry, when evaluating whether a potential
conflict of interest exists. . . . [D]efense counsel have
an ethical obligation to avoid conflicting representa-
tions and to advise the court promptly when a conflict of
interest arises during the course of trial. Absent special
circumstances, therefore, trial courts may assume
either that [the potentially conflicted] representation
entails no conflict or that the lawyer and his clients
knowingly accept such risk of conflict as may exist.’’
(Citation omitted; emphasis omitted; internal quotation
marks omitted.) State v. Gaines, supra, 257 Conn. 708.
There is no indication that an actual conflict existed,
and the record does not show that the court was specifi-
cally apprised of a potential conflict, other than joint
representation itself, until Attorney Skyers raised the
issue at the defendant’s plea canvass. At that point,
Attorney Skyers was permitted to withdraw, and the
defendant was given an opportunity to obtain alter-
nate counsel.
The defendant also claims that the fact that he was
prepared to make a statement to his detriment and to
the benefit of Tilus indicates a conflict requiring rever-
sal. This claim, however, is also without merit. The
defendant apparently was under the impression that if
he pleaded guilty, he would be able to return to work,
but the court informed him that his expectations may
not be realized; the court did not accept the defendant’s
plea.4 After declining to accept the defendant’s plea,
the court was apprised of the potential conflict and,
as previously discussed, allowed Attorney Skyers to
withdraw and continued the case. The court made
proper inquiry, and any possibility of an actual conflict
was averted. See generally State v. Tilus, supra, 157
Conn. App. 466.
Finally, the defendant contends that when Attorney
Skyers withdrew from representation on October 2,
2012, the defendant’s subsequent attorney did not have
adequate time to interview witnesses and to conduct
his own investigation of the case. Any claim regarding
the performance of subsequent counsel is not properly
before us. ‘‘On the rare occasions that we have
addressed an ineffective assistance of counsel claim on
direct appeal, we have limited our review to allegations
that the defendant’s sixth amendment rights had been
jeopardized by the actions of the trial court, rather than
by those of his counsel.’’ (Emphasis in original; internal
quotation marks omitted.) State v. Parrott, supra, 262
Conn. 285. On the record in this case, there is no ruling
of the trial court regarding the performance of subse-
quent counsel.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The jury found the defendant guilty of robbery in the first degree (count
one), conspiracy to commit robbery in the first degree (count two), robbery
in the second degree (count three), and conspiracy to commit robbery in
the second degree (count four). At sentencing, count three was merged with
count one, and count four was merged with count two. The issue of whether
the merged counts should have been vacated is not before us.
2
Under North Carolina v. Alford, 40 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed.
2d 162 (1970), a criminal defendant may plead guilty but not admit guilt,
so long as he acknowledges that the state has sufficient evidence to convict,
and the plea is otherwise voluntarily and intelligently made. State v. Fair-
child, 155 Conn. App. 196, 199 n.2, 108 A.3d 1162, cert. denied, 316 Conn.
902, 111 A.3d 470 (2015).
3
The record discloses that no actual conflict existed at any time; when
the question of a potential conflict was raised, Attorney Skyers withdrew
from representing the defendant.
4
There is no indication that any of the defendant’s statements during the
plea canvass were used at trial.