State v. Navarro , 172 Conn. App. 496 ( 2017 )

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STATE OF CONNECTICUT v. JOSE F. NAVARRO
(AC 37725)
DiPentima, C. J., and Alvord and Schaller, Js.
Argued February 1—officially released April 25, 2017
(Appeal from Superior Court, judicial district of
Fairfield, Kavanewsky, J.)
Richard E. Condon, Jr., senior assistant public
defender, for the appellant (defendant).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, was John C. Smriga, state’s
attorney, and Tiffany M. Lockshier, senior assistant
state’s attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Jose Navarro, appeals
from the judgment of conviction, rendered after a jury
trial, of attempt to commit burglary in the first degree
in violation of General Statutes §§ 53a-49 and 53a-101
(a) (3), threatening in the second degree in violation
of General Statutes § 53a-62, interfering with a police
officer in violation of General Statutes § 53a-167a, and
assault on a police officer in violation of General Stat-
utes § 167c (a) (5). The defendant’s identical twin
brother, Francisco Navarro (Francisco), was charged
with, and convicted of, the same offenses as the defen-
dant, with the exception of the assault on a police offi-
cer offense, after the joint trial at which they were
jointly represented by defense counsel. On appeal, the
defendant claims that (1) the court violated his sixth
amendment right to conflict free representation by
denying counsel’s request to appoint a special public
defender to represent him and (2) counsel rendered
ineffective assistance by representing him at trial and
sentencing while burdened by an actual conflict of inter-
est. We affirm the judgment of the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
On May 29, 2013, at 12:42 a.m., the victims, Joseph
Kenney and Sharon Root, were awakened by the sound
of two men, later identified as the defendant and Fran-
cisco, whistling and yelling outside their first floor
apartment window. Annoyed by the disturbance, Ken-
ney went to the window and asked the men, ‘‘What the
fuck do you want?’’ and ‘‘who are you looking for?’’
One of the men replied, ‘‘Shut the fuck up, white boy.
I’ll fuck you up.’’ After a further exchange, the defendant
and Francisco came up to the victims’ apartment win-
dows. Francisco attempted to pull the security bars off
one of the windows while the defendant attempted to
pull the frame off the unbarred window next to it.
As the situation escalated, Kenney told Root to stay
as far as she could away from the window, grabbed a
framing hammer, and made a series of calls to 911. The
defendant and Francisco continued to attempt to gain
access to the apartment. As they did so, the defendant
and Francisco continued to yell at the victims, threaten-
ing at one point to get a gun, shoot Kenney, and rape
Root. Kenney testified that Francisco was ‘‘more aggres-
sive’’ than the defendant was during the attempted bur-
glary. For example, Francisco at one point retrieved a
plank of wood, which was discarded nearby, and used
it to hit the security bars. He also attempted to kick in
the rear entrance door to the house while saying ‘‘I’m
going to get in.’’
After a few minutes, the sound of police sirens could
be heard and the defendant and Francisco left the scene
on foot. As one of the responding police officers, Officer
Tom Harper, approached the defendant and Francisco,
he asked them to remove their hands from their pockets
for safety reasons. The defendant and Francisco refused
to comply with this request and began yelling that they
knew their rights and that they did not do anything
wrong. Harper then approached Francisco, who was
closest to him, in an attempt to detain him and frisk him
for weapons. Francisco continued to ignore Harper’s
request that he show his hands, and he became combat-
ive, yelling and pulling away as Harper attempted to
place him in handcuffs. Around this time, three addi-
tional officers arrived on the scene. One assisted Harper
in detaining Francisco while the other two attempted
to detain the defendant, who, like Francisco, was refus-
ing to remove his hands from his pockets, was yelling
at officers, and was attempting to get away. Eventually,
the four officers subdued the defendant and Francisco
and placed them in separate police cruisers.
Once in their respective police cruisers, the defen-
dant and Francisco continued to struggle, yelling and
kicking against the cruiser. Officers testified that the
defendant was more aggressive than Francisco was dur-
ing the arrest process. First, the defendant attempted
to kick out the windows of the police cruiser. He then
managed to bring his handcuffs under his body and
around to the front, and he began banging the handcuffs
against the police cruiser windows. Officers asked the
defendant to step outside of the vehicle so that they
could fix his handcuffs, but he refused to comply and
became combative. Eventually, officers were able to
remove the defendant from the police cruiser and move
his handcuffs into the correct position. After officers
placed him back inside the police cruiser, the defendant
continued to kick and scream.
When officers detained the defendant and Francisco,
Kenney was brought to the arrest location so that he
could verify whether the defendant and Francisco were
the men that attempted to break into his and Root’s
apartment. Kenney positively identified both the defen-
dant and Francisco. During the course of the identifica-
tion process, Francisco was brought outside of the
police cruiser, but the defendant, because of his com-
bative behavior, could not be let out of the police cruiser
safely, and the defendant had to remain inside the police
cruiser while Kenney identified him.
After Kenney positively identified the defendant and
Francisco, they were transported to a police station for
booking. Once at the police station, the defendant and
Francisco remained combative, screaming profanities
and refusing to comply with orders from the officers.
As a result, they were placed in holding cells to complete
the booking process. While inside his cell, the defendant
spat on one of the officers assisting in the booking
process.
The defendant and Francisco subsequently were
charged with attempt to commit burglary in the first
degree, threatening in the second degree, and interfer-
ing with a police officer. The defendant further was
charged with assault on a police officer for spitting on
an officer during the booking process. The same public
defender was appointed to represent the defendant and
Francisco. After a joint trial, the defendant was con-
victed of all four charges. Thereafter, the court imposed
on the defendant a total effective sentence of twelve
years imprisonment, execution suspended after six
years, followed by five years of probation. This appeal
followed. Additional facts will be set forth as necessary.
I
The defendant first claims that the court, Devlin,
J., violated his sixth amendment right to conflict free
representation by denying counsel’s request that a spe-
cial public defender be appointed to represent him.1
The state responds that the court did not violate the
defendant’s constitutional rights because it conducted
an adequate inquiry into the potential conflict of interest
raised by counsel and it reasonably concluded that the
conflict was too speculative to require the appointment
of separate counsel. We agree with the state.
The following additional facts are relevant to this
claim. On March 29, 2013, a public defender was
assigned to represent jointly the defendant and Fran-
cisco. At four pretrial hearings for the defendant and
Francisco between August 6, 2013, and April 21, 2014,
counsel represented to the court that there was pres-
ently no conflict of interest in the joint representation
because the defendant and Francisco’s defenses were
in concert. Additionally, at pretrial hearings on Septem-
ber 5 and November 4, 2013, the defendant and Fran-
cisco rejected plea offers from the state.
At a pretrial proceeding on May 29, 2014, the final
pretrial hearing before jury selection on June 2, 2014,
the following colloquy took place between the court,
Devlin, J., and counsel when Francisco’s case was
called:
‘‘[Defense Counsel]: I’d be asking for an appointment
with a special public defender in [Jose’s] case, Your
Honor.
‘‘The Court: No way. I mean the case goes back to—
it’s over a year old. These guys are identical twins.
You’re asking for that now?
‘‘[Defense Counsel]: Your Honor, as the case
approaches trial my concern was that one of them could
get—could be interested in pleading and—
‘‘The Court: Your job is to evaluate this in the first
thirty days of your representation.
‘‘[Defense Counsel]: Yes, Your Honor. I was anticipat-
ing the possibility of some resolution at some point
during the pretrial process but it doesn’t appear that
that’s going to be the case.
‘‘The Court: Well, look, Francisco Navarro, you report
tomorrow to Judge Kavanewsky to start jury selection
on this case tomorrow, right, because I assume your
client is turning down the proposed disposition on
this case?
‘‘[Defense Counsel]: He does not want the ten sus-
pended after five with three probation.
‘‘The Court: Okay. So, we’re going to start trial tomor-
row, Mr. Navarro.’’ (Emphasis added.)
Immediately thereafter, the court called the defen-
dant’s case and engaged in the following colloquy
with counsel:
‘‘[Defense Counsel]: This is the case where I had
intended to ask for a special public defender, Your
Honor.
‘‘The Court: And what’s the basis for that?
‘‘[Defense Counsel]: I think there is some possibility
of a conflict should Francisco Navarro change his mind
about entering a plea in this matter, Your Honor, and
that would put me in a difficult situation, ethically.
‘‘The Court: I’m not following. You need to give me
more specific reasons than that.
‘‘[Defense Counsel]: Well, the defense does appear
to be in concert, Your Honor. Should Mr. Navarro
change his mind about pleading—
‘‘The Court: Which one, Mr. Francisco—
‘‘[Defense Counsel]: Oh, Francisco. My apologies,
Your Honor. The codefendant was just before Your
Honor. Should he change his mind and during the allo-
cution process, he might have to admit to facts which
could potentially inculpate Jose Navarro.
‘‘The Court: Right. But Francisco is not admitting
to anything. He’s going to trial.
‘‘[Defense Counsel]: That’s correct, Your Honor.
‘‘The Court: And so, Jose is going to trial as well,
right? On their present record, both of these gentlemen,
which is their perfect right, do not want to resolve the
case and wish to go to trial. Is that true or not true?
‘‘[Defense Counsel]: That’s correct, Your Honor.
‘‘The Court: Okay. So, my concern is that it looks
like these people were arrested on or about, you know,
May 29, 2013. We’re now May 29th—exactly one year
ago, they were arrested. It’s unreasonable to having
this case been on the firm jury docket thirteen times,
however many times on the pretrial docket, literally the
day—twenty-four hours before their trial is supposed to
start a lawyer represents these two defendants simulta-
neously for a full year, now, wants a new lawyer and
just on some speculation.2 Okay, Jose Navarro’s case
is also put down for trial tomorrow morning, in front
of Judge Kavanewsky.’’ (Emphasis added; footnote
added.)
We begin by setting forth the legal principles that
govern our analysis. ‘‘It is well established that the sixth
amendment to the United States constitution guaran-
tees the right to effective assistance of counsel. . . .
Where a constitutional right to counsel exists, our Sixth
Amendment cases hold that there is a correlative right
to representation that is free from conflicts of interest.
. . . This right requires that the assistance of counsel
be untrammeled and unimpaired by a court order requir-
ing that one lawyer shall simultaneously represent con-
flicting interests.’’ (Citations omitted; internal quotation
marks omitted.) State v. Vega, 259 Conn. 374, 386, 788
A.2d 1221, cert. denied, 537 U.S. 836, 123 S. Ct. 152, 154
L. Ed. 2d 56 (2002). To safeguard a criminal defendant’s
right to effective assistance of counsel, the United
States Supreme Court in Holloway v. Arkansas, 435
U.S. 475, 485–86, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978)
imposed ‘‘an affirmative obligation [on trial courts] to
explore the possibility of conflict when such conflict
is brought to the attention of the trial judge in a timely
manner. . . . The course thereafter followed by the
court in its inquiry depends upon the circumstances of
the particular case.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Vega, supra, 389.
If ‘‘a trial court improperly requires joint representa-
tion over timely objection,’’ then ‘‘reversal is auto-
matic.’’ Holloway v. Arkansas, supra, 435 U.S. 488. If,
however, the court determines that the possibility of a
conflict of interest is ‘‘too remote to warrant separate
counsel,’’ the court may deny counsel’s request for sepa-
rate counsel. Id., 484. This is because ‘‘[i]t is not repre-
sentation of more than one client which deprives a
defendant of his constitutional right to effective assis-
tance of counsel, it is representation of clients with
adverse interests.’’ (Emphasis in original; internal quo-
tation marks omitted.) State v. Cator, 256 Conn. 785,
794, 781 A.2d 285 (2001); see also Cuyler v. Sullivan,
446 U.S. 335, 348, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980)
(‘‘Holloway reaffirmed that multiple representation
does not violate the Sixth Amendment unless it gives
rise to a conflict of interest’’); Holloway v. Arkansas,
supra, 482 (‘‘[r]equiring or permitting a single attorney
to represent codefendants . . . is not per se violative
of constitutional guarantees of effective assistance of
counsel’’ [emphasis in original]).
Based on the particular circumstances in this case,
we cannot conclude that the court violated the defen-
dant’s right to conflict free representation by not
appointing a special public defender. When the defen-
dant’s case was called on May 29, 2014, the court asked
counsel to articulate the basis for his request for a
special public defender for the defendant. Counsel indi-
cated that ‘‘there is some possibility of a conflict should
Francisco Navarro change his mind about entering a
plea in this matter, Your Honor, and that would put me
in a difficult situation, ethically.’’ (Emphasis added.)
Given the vague nature of counsel’s representation, the
court reasonably asked for a more specific reason for
his request. Counsel, however, did not articulate why
an actual conflict of interest existed or was likely to
emerge. Instead, he repeated his supposition that
‘‘should [Francisco] change his mind and during the
allocution process, he might have to admit to facts
which could potentially inculpate [the defendant].’’
(Emphasis added.) When the court asked counsel
whether Francisco wanted to resolve the case or go
to trial, counsel, as he had during Francisco’s pretrial
hearing, represented that Francisco wanted to go to
trial. On the basis of counsel’s representation, the court
reasonably concluded that the conflict of interest identi-
fied by counsel was speculative and too remote to
require the appointment of separate counsel for the
defendant. See Mickens v. Taylor, 535 U.S. 162, 171,
122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002) (‘‘we think ‘an
actual conflict of interest’ [means] precisely a conflict
that affected counsel’s performance—as opposed to a
mere theoretical division of loyalties’’ [emphasis in
original]).
The defendant nevertheless argues that ‘‘it is entirely
plausible, and by no means remote, nonetheless ‘too
remote,’ that Francisco, facing [twenty-five] years of
incarceration, changed his mind and asked [counsel]
to attempt to resolve the matter by plea bargain, even
if it required inculpating [the defendant] and/or cooper-
ating with the State. The moment Francisco conveyed
such a desire to [counsel], [counsel] had a conflict of
interest.’’ (Emphasis omitted.) The fundamental flaw in
the defendant’s argument is that nothing in the record
before this court indicates that Francisco told counsel
that he wanted to plead guilty let alone that he was
willing to cooperate with the state against his brother
to secure a favorable plea deal. To the contrary, counsel
represented to the court at both Francisco’s and the
defendant’s hearing that Francisco wanted to go to trial.
We decline to speculate as to what, if any, conversations
counsel and Francisco had concerning his purported
desire to reinitiate plea negotiations.
Finally, the defendant argues that the court improp-
erly ‘‘steamroll[ed] defense counsel’s request,’’ ‘‘unduly
focused on moving the docket,’’ and concluded ‘‘that the
request was untimely.’’ We disagree. Although during
Francisco’s hearing the court expressed its consterna-
tion at the untimely nature of counsel’s request for the
appointment of a special public defender, the court
clearly afforded counsel an opportunity to explain why
substitute counsel was necessary. Counsel stated that
there was a potential for a conflict of interest should
Francisco plead guilty, but he was unable to explain
why this event was not too remote to require the
appointment of separate counsel.
Therefore, we conclude that the court complied with
its obligations under Holloway at the May 29, 2014 pre-
trial hearing.
II
The defendant next claims that counsel rendered inef-
fective assistance at trial and sentencing because coun-
sel was burdened by an actual conflict of interest that
prevented him from emphasizing that he was less
aggressive than Francisco was during the attempted
burglary. The state responds that the defendant waived
his right to conflict free representation and, alterna-
tively, that the record is insufficient to review his claim
on the merits. We agree with the state.
The following additional facts are relevant to this
claim. On May 30, 2014, the parties met with the court,
Kavanewsky, J., in chambers to discuss the issue raised
by counsel the day before. On June 2, 2014, the parties
next appeared in court. The court engaged in the follow-
ing colloquy with counsel:
‘‘The Court: Okay. Now we have discussed this case
before today and I know that before the case came here
Judge Devlin was over at the [courthouse in geographi-
cal area number two] and had some discussion with
counsel concerning this case. It’s my understanding that
counsel had continuously represented both defendants
in this case.
‘‘[Defense Counsel]: That is correct, Your Honor.
‘‘The Court: Okay. And while there may have been
some suggestion to Judge Devlin that a motion might
be filed, because I want the record to be clear here,
regarding the special public defender for one defendant.
I don’t know what was said on the record and what
was not but when the case came to me and we had
the same discussion, counsel indicated that he had no
intention whatsoever of filing such a motion and did
not think it was warranted. Do I have that—
‘‘[Defense Counsel]: That’s correct, Your Honor.
‘‘The Court: Okay. And have your clients been kept
abreast of all of this as we’ve gone along and as you’ve
gone along?
‘‘[Defense Counsel]: They have, Your Honor. And
Your Honor in chambers on Friday [May 30, 2014] had
indicated your intention to canvass them regarding the
potential conflict. I did discuss that with them and pre-
pared them for that canvass.
‘‘The Court: Okay. And I am going to question them
but before I do, is it your understanding that . . . both
defendants waive any potential conflict and wish you
to represent them in this matter?
‘‘[Defense Counsel]: That is my under—
‘‘The Court: Is that your understanding?
‘‘[Defense Counsel]: That is my understanding,
Your Honor.
‘‘The Court: Okay. For the record, I previewed the
evidence with the state and with defense counsel and,
based on that preview, there was nothing that leapt out
to me that in my mind would require the appointment of
a special public defender for one of the two defendants.
There did not seem to be any actual or potential conflict.
However, I do want to canvass each defendant individu-
ally briefly concerning this matter and make sure we’re
on the same page so to speak.’’
The court then engaged in the following colloquy
with the defendant:
‘‘The Court: Okay. You’ve been here and listening to
what I’ve been saying to your attorney.
‘‘[The Defendant]: Yes, Your Honor.
‘‘The Court: And have you understood what’s been
said so far?
‘‘[The Defendant]: Yes, Your Honor.
‘‘The Court: All right. Okay. This is the situation I
want to satisfy myself that your attorney—you under-
stand that there’s always the possibility, although I am
not seeing it here, but there’s always a possibility that
your attorney might have to prefer the interest of one
defendant over the other. And let me give you some
examples. Examples might be whether to accept or
reject a plea bargain offered to one defendant condi-
tion[ed] on the defendants testifying against the other.
That might be an example. Whether or not to present
a defense that helps one defendant more than the other,
whether or not to cross-examine a witness whose testi-
mony may help one defendant or hurt the other,
whether to have one defendant testify while the other
remains silent.
‘‘Of course, the right to testify is a right personal to
each defendant, that’s not a decision counsel gets to
make but it’s one that you would confer with him.
Another [potential] conflict is whether or not to empha-
size in summation that certain evidence is admitted
only against, or is less compelling against, one defen-
dant than the other. And should it come down to a
sentencing, whether or not to argue at sentencing that
one defendant’s role in the criminal activity was lesser
or subordinate to that of the other defendant. Do you
understand those are all situations where your attor-
ney—your attorney may be confronted with during the
course of a trial?
‘‘[The Defendant]: I understand, Your Honor.
‘‘The Court: You understand that? Okay. And I want
to make sure that you understand that you have the
right to effective representation, that you understand
the details of your attorney’s possible conflict of inter-
est, any potential perils of a conflict and that you’ve
discussed the matter with your attorney or that you
have—or that you have a wish to discuss it with outside
counsel. Do you understand all of that?
‘‘[The Defendant]: I understand, Your Honor.
‘‘The Court: Okay. And do you—you’ve discussed
these matters, as I’ve gone over with you in a little
lengthier form, but you’ve discussed them with your
attorney?
‘‘[The Defendant]: Yes, I have, Your Honor.
‘‘The Court: Okay. What I’m going to do is this then,
I’m going to question Francisco Navarro and then while
the jury is being called down we’ll bring the jury back,
I’ll take the bench and before we bring out the jury I’m
going to ask you Mr. Navarro whether having heard
what I’ve said and whether given the additional time
to talk to your attorney about these matters, it’s your
wish to have counsel represent you. All right?
‘‘[The Defendant]: Okay, Your Honor.
‘‘The Court: Do you have any questions for me
right now?
‘‘[The Defendant]: I have no questions for you now.’’
(Emphasis added.)
The court thereafter canvassed Francisco in the same
manner and obtained the same assurance from Fran-
cisco that he was aware of the potential dangers of
joint representation. The court then informed both
defendants that they were going to take a brief recess,
during which they could consult with counsel about
the discussion they just had, and afterwards it would
ask them individually whether they wanted to proceed
with counsel as their attorney. After the recess, the
court engaged in the following colloquy with the
defendant:
‘‘The Court: . . . You heard my questions before.
Did you have an opportunity to further talk about this
with your attorney during the recess?
‘‘[The Defendant]: Yes, I have, Your Honor.
‘‘The Court: Okay. Do you have any questions for
your attorney?
‘‘[The Defendant]: I have no questions.
‘‘The Court: Do you have any questions for the court?
‘‘[The Defendant]: No questions for the court.
‘‘The Court: I need you to speak up for me, okay.
‘‘[The Defendant]: No questions, Your Honor.
‘‘The Court: All right. And do you waive any potential
for conflict free representation should that occur, yes
or no?
‘‘[The Defendant]: I didn’t understand that question
like that. I’m sorry.
‘‘The Court: Okay. I went over certain situations
before—
‘‘[The Defendant]: Okay.
‘‘The Court: —where I was addressing you and then
I was addressing your brother. And I said there could
be certain situations where your attorney may have to
make an election that could arguably favor one defen-
dant more than the other.
‘‘[The Defendant]: Okay.
‘‘The Court: Okay. Or hurt more one defendant more
than the other. Do you remember that?
‘‘[The Defendant]: Yes, sir. Yes, Your Honor.
‘‘The Court: Okay. That is what I’m talking about
examples of representation that would not be conflict
free. Now, having heard all of that and having talked
to your attorney, do you waive the potential for conflict
for representation that may not be conflict free?
‘‘[The Defendant]: Yes, I do.
‘‘The Court: And do you wish [counsel] to repre-
sent you?
‘‘[The Defendant]: Yes, I do. Your Honor.
‘‘The Court: Okay. No questions at all about that?
‘‘[The Defendant]: None at all.’’ (Emphasis added.)
The court then engaged in a similar discussion with
Francisco, who likewise assured the court that he had
no questions about the court’s canvass and that he
would like to proceed with counsel representing him.
After completing Francisco’s canvass, the court
directed the record to reflect ‘‘that both defendants
were canvassed individually in open court concerning
[counsel’s] representing each defendant and each
defendant has separately and knowingly and voluntarily
and understandingly waived any potential for represen-
tation that may not be conflict free.’’
We conclude that the defendant knowingly and volun-
tarily waived his right to conflict free representation at
trial and sentencing at the June 2, 2014 hearing.3 ‘‘Just
as the right to assistance of counsel may be waived in
favor of self-representation . . . so may a defendant
waive the right to conflict-free representation’’ so long
as the trial court determines ‘‘on the record that such a
waiver is knowing and intelligent.’’ (Citations omitted.)
State v. Williams, 203 Conn. 159, 167, 523 A.2d 1284
(1987). ‘‘If the defendant reveals that he is aware of
and understands the various risks and pitfalls, and that
he has the rational capacity to make a decision on the
basis of this information, and if he states clearly and
unequivocally . . . that he nevertheless chooses to
hazard [the] dangers of waiving conflict-free representa-
tion, then his waiver may appropriately be accepted.
. . . The waiver is not vitiated simply because the
defendant, with the benefit of hindsight, might have
chosen differently. A defendant need not be prescient
in order to waive knowingly and intelligently the right
to conflict-free representation.’’ (Citations omitted;
internal quotation marks omitted.) Id., 167–68.
At the June 2, 2014 hearing, counsel represented that
he had prepared his clients to be canvassed concerning
their waiver of their right to conflict free representation.
During its canvass, the court provided the defendant
with examples of the types of conflicts that might arise
during joint representation, including whether ‘‘to pre-
sent a defense that helps one defendant more than
the other,’’ whether ‘‘to cross-examine a witness whose
testimony may help one defendant or hurt the other,’’
and, ‘‘should it come down to a sentencing, whether or
not to argue at sentencing that one defendant’s role in
the criminal activity was lesser or subordinate to that
of the other defendant.’’ The defendant, after being
given an opportunity to consult further with counsel
and to ask the court questions concerning his rights
and waiver, confirmed that he wanted to waive any
potential conflict of interest that might arise from the
joint representation and that he wanted counsel to con-
tinue to represent him.
The defendant now argues that this waiver was inef-
fective because the court (1) did not specifically advise
him of his ‘‘right to separate counsel to avoid a conflict
of interest resulting from such joint representation’’;
(2) improperly remarked that it did not believe, after
previewing the state’s evidence, that a conflict of inter-
est existed; and (3) never told him that if he wanted to
consult with ‘‘outside counsel,’’ a term that ‘‘was too
ambiguous and technical,’’ ‘‘such ‘outside counsel’
would be provided at no cost.’’ (Emphasis in original.)
We disagree.
First, because the impetus for the canvass was coun-
sel’s request for a special public defender, it is reason-
able to infer that the defendant understood that if a
conflict of interest existed, new counsel would be
appointed to represent him. Additionally, we are not
persuaded that the court’s frank assessment of the con-
flict situation prevented the defendant from under-
standing the risks associated with joint representation.
The court acknowledged when speaking to the defen-
dant that a conflict of interest could exist ‘‘although
I’m not seeing it here.’’ The court also conducted a
thorough and informative canvass that explored a vari-
ety of conflicts that might arise before, during, and after
a trial. The defendant never indicated that he did not
understand the court’s advisement or the import of his
waiver. For these same reasons, we cannot conclude
that the court’s failure to explain further the term ‘‘out-
side counsel’’ prevented the defendant from under-
standing the risks associated with joint representation.
Accordingly, because the defendant waived his right
to conflict free representation, he cannot claim that
counsel rendered ineffective assistance by laboring
under a conflict at trial or sentencing.
Nevertheless, even if we were to assume, arguendo,
that the defendant did not waive his right to conflict
free representation, his claim of ineffective assistance
of counsel is unreviewable. ‘‘Almost without exception,
we have required that a claim of ineffective assistance
of counsel must be raised by way of habeas corpus,
rather than by direct appeal, because of the need for
a full evidentiary record for such [a] claim. . . . More-
over, we have stated as our preference that all of the
claims of ineffective assistance, those arguably sup-
ported by the record as well as others requiring an
evidentiary hearing, be evaluated by the same trier in
the same proceeding. . . . 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. . . . We have
addressed such claims, moreover, only where the
record of the trial court’s allegedly improper action
was adequate for review or the issue presented was
a question of law, not one of fact requiring further
evidentiary development. . . .
‘‘In a case of a claimed [actual] conflict of interest
. . . in order to establish a violation of the sixth amend-
ment the defendant has a two-pronged task. He must
establish (1) that counsel actively represented conflict-
ing interests and (2) that an actual conflict of interest
adversely affected his lawyer’s performance. . . . We
have described an attorney’s conflict of interest as that
which impedes his paramount duty of loyalty to his
client. . . . Thus, an attorney may be considered to be
laboring under an impaired duty of loyalty, and thereby
be subject to conflicting interests, because of interests
or factors personal to him that are inconsistent, diverse
or otherwise discordant with [the interests] of his client
. . . .’’ (Citations omitted; emphasis in original; foot-
notes omitted; internal quotation marks omitted.) State
v. Crespo, 246 Conn. 665, 687–90, 718 A.2d 925 (1998),
cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed.
2d 909 (1999); see also Cuyler v. Sullivan, supra, 446
U.S. 350 (‘‘the possibility of conflict is insufficient to
impugn a criminal conviction’’).
Contrary to the defendant’s assertion, we cannot con-
clude from the record before us that counsel’s decision
not to emphasize at trial and sentencing that Francisco
was more aggressive than the defendant during the
attempted burglary was the product of an impaired duty
of loyalty. See State v. Crespo, supra, 246 Conn. 690. The
decision not to highlight Francisco’s greater aggression
during the burglary may have been a reasonable trial
or sentencing strategy, properly discussed with and
agreed to by the defendant. ‘‘Accordingly, we shall not
review at this time . . . the defendant’s ineffective
assistance claim[s] that he contends [are] adequately
supported by the record. . . . [W]e believe that his
ineffective assistance claim[s] should be resolved . . .
after an evidentiary hearing in the trial court where the
attorney whose conduct is in question may have an
opportunity to testify.’’ (Internal quotation marks omit-
ted.) State v. Taft, 306 Conn. 749, 769, 51 A.3d 988
(2012); see also State v. Daly, 111 Conn. App. 397, 400,
960 A.2d 1040 (2008) (‘‘it is well established that as an
appellate tribunal, we do not find facts’’), cert. denied,
292 Conn. 909, 973 A.2d 108 (2009).
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant alternatively claims that the court violated his due process
rights by failing to conduct a sufficient inquiry into the existence of a conflict
of interest. The defendant, however, undertook no analysis or application
of the law to the facts of the case. ‘‘We repeatedly have stated that [w]e
are not required to review issues that have been improperly presented to
this court through an inadequate brief. . . . Analysis, rather than mere
abstract assertion, is required in order to avoid abandoning an issue by
failure to brief the issue properly. . . . [F]or this court judiciously and
efficiently to consider claims of error raised on appeal . . . the parties must
clearly and fully set forth their arguments in their briefs. . . . The parties
may not merely cite a legal principle without analyzing the relationship
between the facts of the case and the law cited.’’ (Citation omitted; internal
quotation marks omitted.) State v. Buhl, 321 Conn. 688, 724, 138 A.3d 868
(2016). Accordingly, we decline to review the defendant’s due process claim
because it was briefed inadequately.
2
The court misspoke when it indicated that jury selection commenced
the next day, i.e., Friday, May 30, 2014. Instead, jury selection commenced
the following Monday, i.e., Monday, June 2, 2014.
3
The defendant also argues that ‘‘the attempted waiver did not apply
retrospectively to plea negotiations.’’ Because the defendant does not argue
that his constitutional rights were violated by the existence of a conflict of
interest during plea negotiations, we decline to consider this claim.