State v. Taylor ( 2017 )

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STATE OF CONNECTICUT v. SOLOMON TAYLOR
(AC 39659)
Alvord, Sheldon and Prescott, Js.
Syllabus
Convicted, after a trial to a three judge court, of the crimes of murder,
robbery in the first degree, conspiracy to commit robbery in the first
degree, hindering prosecution in the second degree and tampering with
physical evidence, the defendant appealed. The defendant’s conviction
stemmed from an incident in which he and a coconspirator, W, allegedly
shot and killed the victim during an alleged drug transaction. On appeal,
the defendant claimed that the evidence was insufficient to support his
conviction of murder, robbery in the first degree and conspiracy to
commit robbery in the first degree, and that the trial court improperly
disqualified his first court-appointed attorney, H, on the basis of an
alleged potential conflict of interest related to H’s representation of J,
a potentially material witness for the state in the present case, in a prior
criminal case. Held:
1. The defendant could not prevail on his claim that the evidence was
insufficient to support his conviction of murder, robbery in the first
degree and conspiracy to commit robbery in the first degree on the
ground that there was no evidence that a robbery had occurred, and,
therefore, there also was no proof of a conspiracy to commit robbery
or of murder under the doctrine of Pinkerton v. United States (328 U.S.
640), pursuant to which a coconspirator may be found guilty of a crime
that he did not commit if the state can establish that a coconspirator
did commit the crime and that the crime was within the scope and in
furtherance of the conspiracy, and a reasonably foreseeable conse-
quence of the conspiracy; on the basis of the evidence presented and
the inferences reasonably drawn therefrom, which established that W
agreed to buy drugs from the victim and told the defendant about it,
that the defendant was a passenger in the car when W drove to the
victim’s home while armed, and that they convinced the victim to bring
the drugs to the car and then struggled with the victim, who fought
back, ultimately shooting him in the head and arm and driving away
with the drugs in the car, the court reasonably could have found that
the defendant and W robbed the victim, that they did so in furtherance
of an agreement to commit a robbery while at least one of them was
armed with a deadly weapon, and that the murder of the victim was
committed in furtherance of that conspiracy and was a reasonably fore-
seeable consequence thereof.
2. The trial court did not abuse its discretion in granting the state’s motion
to disqualify H: the defendant, who was indigent, had no constitutional
right to select his appointed counsel, and the court did not act arbitrarily
in disqualifying H and appointing new counsel when, as in the present
case, a potential conflict of interest existed that could have compromised
the integrity of the trial if H continued to represent the defendant, the
court having determined that J was expected to provide key testimony
regarding the firearm used in the robbery in the present case by connect-
ing it to the prior shooting incident for which H had represented J, and,
therefore, H could have experienced great difficulty in cross-examining
J about the facts and circumstances surrounding the incident in which
she represented J without violating J’s rights; moreover, the fact that J
did not ultimately testify about the defendant’s use of the firearm in
question could not be considered, as the trial court could not have
known that J would not so testify when it ruled on the motion to
disqualify, and the defendant was not prejudiced as a result of H’s disqual-
ification.
Argued March 9—officially released October 10, 2017
Procedural History
Substitute information charging the defendant with
the crimes of murder, conspiracy to commit murder,
felony murder, robbery in the first degree, conspiracy
to commit robbery in the first degree, attempt to commit
robbery in the first degree, hindering prosecution in the
second degree and tampering with physical evidence,
brought to the Superior Court in the judicial district of
Waterbury, where the court, Fasano, J., granted the
state’s motion to disqualify defense counsel; thereafter,
the matter was tried to a three judge court, Crawford,
Roraback and Moll, Js.; finding of guilty of murder,
felony murder, robbery in the first degree, conspiracy
to commit robbery in the first degree, attempt to commit
robbery in the first degree, hindering prosecution in the
second degree and tampering with physical evidence;
subsequently, the court, Crawford, Roraback and Moll,
Js., vacated the finding of guilty on the charges of felony
murder and attempt to commit robbery in the first
degree, and rendered judgment of guilty of murder,
robbery in the first degree, conspiracy to commit rob-
bery in the first degree, hindering prosecution in the
second degree and tampering with physical evidence,
from which the defendant appealed. Affirmed.
Lisa J. Steele, assigned counsel, for the appellant
(defendant).
Harry Weller, senior assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, Amy Sedensky, senior assistant state’s attorney,
and Dana Tal, legal intern, for the appellee (state).
Opinion
SHELDON, J. The defendant, Solomon Taylor,
appeals from the judgment of conviction, rendered after
a trial before a three judge court, on charges that
included murder, under the Pinkerton doctrine,1 in vio-
lation of General Statutes § 53a-54a (a), robbery in the
first degree in violation of General Statutes § 53a-134
(a) (2), and conspiracy to commit robbery in the first
degree in violation of General Statutes §§ 53a-48 and
53a-134 (a) (2).2 On appeal, the defendant claims that
(1) there was insufficient evidence to support his con-
viction for murder, robbery in the first degree and con-
spiracy to commit robbery in the first degree because
the evidence does not support the court’s findings that
he and his alleged coconspirator committed or con-
spired to commit robbery, and (2) the court improperly
disqualified his first attorney approximately twenty
months before the start of his trial. We affirm the judg-
ment of the trial court.
The following facts were found by the trial court.
The defendant and his alleged coconspirator,3 Joseph
Walker,4 were long-standing and close acquaintances.
They had known each other for years, and Walker and
the defendant’s sister have a child together. On May
12, 2012, between 7 and 8 p.m., the defendant, Walker
and some other friends went to the apartment of Alexia
Bates, the defendant’s girlfriend, stayed for approxi-
mately half an hour to forty-five minutes, and then left.
That same day, the victim, David Caban, called his
cousin, Angelo Caban (Angelo), and informed him that
he had money he owed Angelo and that Angelo could
come to his home that evening to pick it up. The victim
lived at 127 Proctor Street in Waterbury with his girl-
friend, Lourdes Santana. Santana overheard the victim
on his cell phone, saying something about ‘‘G’s.’’ She
knew this was a reference to grams and that the victim’s
nickname, Yayo, meant cocaine. Santana saw that the
victim received a phone call that evening from Walker.
She recognized the name on the phone from a call that
the victim had received two or three days prior. The
earlier call had come while the victim was in the shower.
He had asked her to answer the phone and give Walker
directions to the house.5 The victim told her that he
had been in jail with Walker, and Santana knew that
he had been in jail for selling cocaine. After that earlier
phone call, Walker had come by the house, and Santana
had seen the white Mitsubishi Galant that he was driv-
ing. The victim had gone outside to the car for five to
ten minutes.
On May 12, 2012, Angelo arrived between 8 and 8:30
p.m., and saw the victim’s friend, Anthony Jackson,
outside the victim’s home. The victim told Jackson that
he was waiting for someone. Inside, Angelo saw the
victim pacing while the victim was talking on the phone.
The victim told Angelo that he was going to ‘‘bust a
trap,’’ meaning he was going to make a drug transaction.
Angelo knew that the victim sold narcotics and that his
repayment by the victim would come from a drug sale.
Shortly after Angelo arrived at the house, after the
phone call from Walker to the victim, Angelo was look-
ing out the kitchen window when he saw a four door
Mitsubishi Galant pull up with two black males in it,
one in the driver’s seat and one in the front passenger
seat. This car later was identified as the white Mitsubishi
Galant owned by Bates, which the defendant used more
than she did.
The victim went outside, saying he was going to talk
to ‘‘his boy.’’ He went to the Mitsubishi, greeted the
occupants of the car and got halfway into the car
through the rear passenger side door. Then the victim
got out of the car and went inside the house. After
entering the bedroom for fifteen to twenty seconds, he
came out with something in his hand, which he held
‘‘cupped’’ to his side. As he walked downstairs, he told
Angelo to stay where he was and watch over him. He
returned to the Mitsubishi and sat in the rear passen-
ger side.
Angelo looked out the window and saw the victim
give ‘‘dap’’ (a greeting or locking of hands). Angelo
then went outside, where he had a clear view of the
Mitsubishi. He saw the victim struggle with someone
in the front seat. He also heard muffled gunshots and
saw sparks from a gun. Angelo saw the victim grab one
of the males in the front seat of the car by the wrist
after the victim had been shot in the arm. The other
occupant then reached around and shot the victim in
the head. Angelo went to the backseat and tried to pull
the victim out of the car. He then went around the back
of the car, and Walker, who was in the driver’s seat,
got out of the car and put a dark metal gun in his face.
The person in the passenger seat got out of the car and
said to Walker, ‘‘[y]o, forget it.’’ When Walker turned
toward the passenger, Angelo smacked his hand and
ran back to his own car, which was parked behind
the Mitsubishi.
Jackson, still sitting outside the victim’s home, also
saw the Mitsubishi Galant pull up with two black males
in it. He saw the victim come outside and get in the
backseat. Jackson then saw tussling, heard gunshots
and saw sparks in the middle of the back of the car.
He got up, grabbed a scooter and ran to the passenger
side. He broke the front window with the scooter and
leaned in and tried to hit the man in the passenger seat.
When he saw a chrome shiny object in the passenger’s
hand, he ran. The Mitsubishi was gone when he
returned.
Santana was in the bedroom when her mother came
in and told her that they were shooting at the victim
outside. Santana ran to the door, looked outside and
saw the victim in the back trying to get out of the
Mitsubishi and someone trying to pull him back into
the car, then saw the car take off. She tried several
times to reach the victim on his cell phone. The first
time she called, a man answered. She asked for the
victim and the person hung up. She called again and
yelled into the phone, and the person hung up. Angelo
and Santana tried to follow the Mitsubishi in Angelo’s
car. They found the victim at the side of the curb on
Sylvan Avenue near the intersection with Proctor
Street, lying on the ground on his stomach with blood
coming from his head.
The defendant and Walker returned to Bates’ house
in the Mitsubishi at approximately 9:30 p.m. Walker
went into the bathroom and would not let anyone in
with him. The defendant called Bates into the bedroom.
He was pacing and rambling. The defendant told Bates
that ‘‘crap went wrong’’ and that Walker had been shot.
Bates saw blood on the top of the defendant’s under-
wear. The defendant had a phone in his possession that
kept ringing, and when he answered it, Bates could
hear a girl screaming on the other end. The defendant
looked confused.
The defendant ordered Bates to get his gun from the
car. She described the gun as small and dark colored.
She had seen it two or three times within one month
and knew the defendant kept it in the baseboard heater.
She retrieved the gun from the car and gave it to the
defendant, who put it in his waistband.
The defendant then told her to go clean the car. She
collected some cleaning supplies, and she and the
defendant went down to the car. When Bates and the
defendant got to the car, she saw the front passenger
window smashed out, a hole in the roof and blood on
the front passenger seat, back passenger seat and floor.
She found both of the defendant’s phones on the floor
under the seat. One was a red phone, identical to the
one he had in his possession that had been ringing. The
defendant, on Bates’ discovery of both of his phones
in the car, realized the phone that had been ringing in
the bedroom was not his. The defendant then said it
was ‘‘Son’s’’6 phone, and he smashed Son’s phone in
the driveway. Someone across the street returned it to
him, but he smashed it a second time and threw it away.
Bates also saw crack on the floor of the car. Some of
the pieces of crack had blood on them. She collected
the crack, placed it in a sandwich bag and gave it to
the defendant. He then put the crack in his pocket. She
and the defendant removed all the items from the car
and placed them in several Epic bags.7 Bates then
cleaned the car thoroughly with Windex and Clorox.
She scrubbed the seats and cleaned up the blood.
Bates asked the defendant what happened, and he
told her they had been in New Britain and that someone
had tried to rob them and shot up the car. He told
her that someone named ‘‘Son’’ had been shot in the
shoulder and the leg, which explained the blood, and
they took him home.
Later that night, Miguel Rivera showed up at Bates’
apartment. He saw the defendant in the kitchen stand-
ing by a table, on which was crack that looked like it
had blood on it. The defendant said he had spilled juice
on it. He asked Rivera if he knew anyone who wanted
to trade an eight ball, a .38 special and two hundred
dollars. Rivera described the defendant as moving
around, mad and frustrated. Bates heard the defendant
talking to Rivera about selling the crack for a cheaper
price because of the blood and also discussing trading
a gun for drugs.
At approximately 10 p.m., Walker called the defen-
dant’s friend, Julian Warren, and asked him to come to
Bates’ apartment. When Warren arrived, he saw the
defendant and Bates cleaning the car. He saw the bro-
ken front window, blood, broken glass and two bullet
holes in the roof. When he went upstairs, he saw Walker
with his hand bleeding and wrapped in a white shirt,
and crack with blood on it in the bathroom sink. Warren
and his friend, Calvin, drove Walker to New York and
dropped him off close to a hospital. Warren returned to
Connecticut, dropped Calvin off and returned to Bates’
apartment between 5 and 6 a.m. on May 13, 2012.
The defendant had a second girlfriend, Quantashay
Nealy, who was staying at the Motor Lodge on South
Main Street in Waterbury from May 12–13, 2012. In the
morning on May 13, 2012, the defendant drove Warren
in Warren’s car to the Motor Lodge. The defendant went
to Nealy’s room and told her something was wrong. He
paced back and forth and said he had been with Walker
and something happened. She asked if someone got
hurt and he said yes. Nealy saw the defendant take
crack out of his pocket, one big piece the size of a
baseball and several little pieces that looked like rocks.
Some of the pieces had blood on them. He stayed for
five or six minutes, then left, leaving the drugs and his
iPhone behind.
Still in Warren’s car, the defendant and Warren
returned to the Motor Lodge later that morning, but
Nealy was not there, and they left. The defendant asked
Warren to drive him to New York. Within three to four
minutes, they were pulled over by a police officer, and
the defendant was taken into custody.
On May 12, 2012, Brian Juengst, then a crime scene
technician, went to Bates’ apartment and saw the Mit-
subishi in the driveway. He saw two bullet holes in the
roof of the car and blood-like stains in the car. He
smelled cleaning products, and it appeared to him that
someone had tried to wipe or destroy evidence. He
retrieved several samples of the blood-like stains.
Juengst found the red backing to a cell phone in the
driveway and the main body of the phone in the vacant
lot next door. The phone was identified as the victim’s
cell phone. Juengst also found an Epic bag inside of
Bates’ apartment with cleaning supplies and the defen-
dant’s underwear in the refuse on the back porch. The
underwear had blood-like stains on it.
Juengst took many blood samples and sent them to
be processed. Most of the samples taken from the car,
in particular from the backseat, were from the victim.
The blood-like stain on the defendant’s underwear was
the victim’s blood.
Additionally, the court noted that it considered (1)
the call detail reports relating to the cell phones used
by the defendant, Walker and the victim; and (2) the
testimony of representatives from the cell phone provid-
ers, Verizon Wireless, Sprint and AT&T, relating to such
reports. The call detail reports reflected text messages
and/or telephone calls on and around May 12, 2012,
between, among others, Walker and the victim, Walker
and the defendant, Bates and the defendant, and Walker
and Warren. The court also noted that it considered the
testimony of Special Agent Kevin Horan of the Federal
Bureau of Investigation, who analyzed the call detail
reports of Walker, the defendant and the victim, and
who presented an analysis reflecting the times of certain
communications among them, the respective locations
of the cell phone towers in Waterbury and the proximity
of those towers to, among other locations, Bates’ apart-
ment, the victim’s home and place of the shooting, and
the Motor Lodge. The court concluded that this evi-
dence corroborated the locations and movements of
the defendant on May 12 and 13, 2012.
In the operative information, the defendant was
charged with murder, conspiracy to commit murder,
felony murder, robbery in the first degree, conspiracy
to commit robbery in the first degree, attempted rob-
bery in the first degree, hindering prosecution in the
second degree and tampering with physical evidence.
After a bench trial, the defendant was found guilty of
seven of the eight charges against him. See footnote 2
of this opinion. The court sentenced the defendant as
follows: (1) on the charge of murder, fifty-five years
incarceration, twenty-five of which were mandatory;
(2) on the charge of robbery in the first degree, twenty
years incarceration, five of which were mandatory; (3)
on the charge of conspiracy to commit robbery in the
first degree, twenty years incarceration, five of which
were mandatory; (4) on the charge of hindering prose-
cution in the second degree, ten years incarceration;
and (5) on the charge of tampering with physical evi-
dence, five years incarceration. The court ordered all
sentences to run concurrently, resulting in a total effec-
tive sentence of fifty-five years of incarceration, twenty-
five years of which were mandatory. This appeal fol-
lowed. Additional facts will be set forth as necessary.
I
The defendant first claims that the evidence was
insufficient to support his conviction for murder, rob-
bery in the first degree and conspiracy to commit rob-
bery in the first degree. Specifically, he claims: ‘‘[t]here
was no evidence that Walker or [the defendant] had
robbed [the victim].’’ He argues: ‘‘[W]hile there was
evidence that Walker was involved in a drug deal with
[the victim], even if [the defendant] was there, there
was no evidence offered to the trial court that a robbery
occurred. [The defendant] had a quantity of crack after-
ward, but there was no evidence that it was stolen from
[the victim].’’ By the same logic, the defendant argues
that because there was no proof of a robbery, there
was no proof of a conspiracy to commit robbery or of
murder under the Pinkerton doctrine.8 We disagree.
‘‘In considering the defendant’s challenge, we under-
take the same limited review of the panel’s verdict, as
the trier of fact, as we would with a jury verdict.’’ State
v. Bennett, 307 Conn. 758, 763, 59 A.3d 221 (2013).
‘‘In reviewing the sufficiency of the evidence to sup-
port a criminal conviction we apply a two-part test.
First, we construe the evidence in the light most favor-
able to sustaining the [court’s finding of guilt]. Second,
we determine whether upon the facts so construed and
the inferences reasonably drawn therefrom the [finder
of fact] reasonably could have concluded that the cumu-
lative force of the evidence established guilt beyond a
reasonable doubt. . . .
‘‘We note that the [finder of fact] must find every
element proven beyond a reasonable doubt in order to
find the defendant guilty of the charged offense, [but]
each of the basic and inferred facts underlying those
conclusions need not be proved beyond a reasonable
doubt. . . . If it is reasonable and logical for the [finder
of fact] to conclude that a basic fact or an inferred fact
is true, the [finder of fact] is permitted to consider the
fact proven and may consider it in combination with
other proven facts in determining whether the cumula-
tive effect of all the evidence proves the defendant
guilty of all the elements of the crime charged beyond
a reasonable doubt. . . .
‘‘Moreover, it does not diminish the probative force
of the evidence that it consists, in whole or in part, of
evidence that is circumstantial rather than direct. . . .
It is not one fact, but the cumulative impact of a multi-
tude of facts which establishes guilt in a case involving
substantial circumstantial evidence. . . . In evaluating
evidence, the [finder] of fact is not required to accept
as dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [finder of fact]
may draw whatever inferences from the evidence or
facts established by the evidence it deems to be reason-
able and logical.’’ (Internal quotation marks omitted.)
State v. Bush, 325 Conn. 272, 285–86, 157 A.3d 586
(2017).
The defendant argues that the state failed to intro-
duce any evidence that he intended to take drugs from
the victim without paying for them. He contends:
‘‘Walker and [the victim] agreed to a drug deal, and
[the victim] was shot after that transaction. Obviously,
something went wrong after the transaction, but the
state did not present any evidence that [the defendant]
agreed or intended to take drugs from [the victim] with-
out paying for them.’’ We disagree.
‘‘A person commits robbery when, in the course of
committing a larceny, he uses or threatens the immedi-
ate use of physical force upon another person for the
purpose of: (1) Preventing or overcoming resistance to
the taking of the property or to the retention thereof
immediately after the taking; or (2) compelling the
owner of such property or another person to deliver
up the property or to engage in other conduct which
aids in the commission of the larceny.’’ General Statutes
§ 53a-133. ‘‘A person is guilty of robbery in the first
degree when, in the course of the commission of the
crime of robbery . . . he or another participant in the
crime . . . is armed with a deadly weapon . . . .’’
General Statutes § 53a-134 (a) (2). ‘‘A person commits
larceny when, with intent to deprive another of property
or to appropriate the same to himself or a third person,
he wrongfully takes, obtains or withholds such property
from an owner . . . .’’ General Statutes § 53a-119.
‘‘To establish the crime of conspiracy under § 53a-48
. . . it must be shown that an agreement was made
between two or more persons to engage in conduct
constituting a crime and that the agreement was fol-
lowed by an overt act in furtherance of the conspiracy
by any one of the conspirators. The state must also
show intent on the part of the accused that conduct
constituting a crime be performed. . . . Conspiracy is
a specific intent crime, with the intent divided into two
elements: (a) the intent to agree or conspire and (b)
the intent to commit the offense which is the object of
the conspiracy. . . . Thus, [p]roof of a conspiracy to
commit a specific offense requires proof that the con-
spirators intended to bring about the elements of the
conspired offense.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Danforth, 315 Conn. 518,
531–32, 108 A.3d 1060 (2015).
‘‘[T]he existence of a formal agreement between the
conspirators need not be proved [however] because
[i]t is only in rare instances that conspiracy may be
established by proof of an express agreement to unite to
accomplish an unlawful purpose. . . . [T]he requisite
agreement or confederation may be inferred from proof
of the separate acts of the individuals accused as cocon-
spirators and from the circumstances surrounding the
commission of these acts. . . . Further, [c]onspiracy
can seldom be proved by direct evidence. It may be
inferred from the activities of the accused persons. . . .
Finally, [b]ecause direct evidence of the accused’s state
of mind is rarely available . . . intent is often inferred
from conduct . . . and from the cumulative effect of
the circumstantial evidence and the rational inferences
drawn therefrom.’’ (Citation omitted; internal quotation
marks omitted.) Id., 532–33.
Construing the evidence in the light most favorable
to sustaining the court’s finding of guilt, we conclude
that there was sufficient evidence to support the defen-
dant’s conviction of the crimes of robbery in the first
degree and conspiracy to commit robbery in the first
degree. The defendant challenges the larceny and
agreement elements of these charges, arguing that there
was no evidence he took or intended to take drugs or
money from the victim, or that he agreed to do so.
In the present case, the court, acting as the trier
of fact, found that there were multiple calls and text
messages on the evening of May 12, 2012, between
Walker and the victim and Walker and the defendant.
Walker and another black male drove to the victim’s
home in the car of the defendant’s girlfriend. The victim
went to the car, briefly spoke with the occupants,
returned to his home and came back out to the car with
something cupped in his hand. After the victim got back
into the car, he struggled with the occupants in the
front seat, which resulted in a shooting inside the car.
The car then drove away. Walker and the defendant
returned to Bates’ home, where the defendant had Bates
collect his gun and some bloody crack from the car.
The defendant then attempted to sell or trade the crack
at a discount. He was visibly upset and pacing, telling
both of his girlfriends that something had gone wrong
that night. At Bates’ home, the defendant learned that
he had two identical red phones in his possession, and
he destroyed the one that he told her belonged to ‘‘Son.’’
From those findings and from the court’s statements
that it noted and credited regarding the call detail
reports and the testimony of Horan, it reasonably could
be inferred that Walker made an agreement to buy drugs
from the victim and told the defendant about it. The
defendant was the passenger in the car when Walker
drove to the victim’s home. The victim was expecting
to sell Walker drugs for cash, which he would then use
to repay Angelo. Instead, Walker and the defendant
showed up at the defendant’s home armed. They con-
vinced the victim to bring the drugs to the car and then
struggled with the victim, ultimately shooting him in
the head and arm and driving away with the drugs in
the car. The defendant’s statements that something had
gone wrong indicated that there had been a plan. He
did not expect to be in possession of the victim’s phone,
and he attempted to destroy it when he realized that it
belonged to the victim.
Viewing the evidence in the light most favorable to
sustaining the court’s finding of guilt, as we must, we
conclude that the court reasonably found, on the basis
of the evidence presented and the reasonable inferences
drawn therefrom, that the defendant and Walker robbed
the victim, who fought back, and that they did so in
furtherance of an agreement to commit a robbery while
at least one of them was armed with a deadly weapon.
Because the murder of the victim was committed in
furtherance of that conspiracy, and was a reasonably
foreseeable consequence thereof, such proof of con-
spiracy also supported the defendant’s conviction for
murder under the Pinkerton doctrine. Accordingly, we
find no merit to the defendant’s claim.
II
The defendant next claims that ‘‘[t]he trial court
(Fasano, J.) abused its discretion and violated [his]
sixth amendment right to counsel when it disqualified
[his] first attorney.’’ Specifically, the defendant claims
that, in determining whether to disqualify his court-
appointed attorney based upon an alleged potential con-
flict of interest, the court failed to consider his constitu-
tional right to continued representation by that
attorney. The state counters that the defendant, who
was indigent, had no constitutional right to choose his
appointed counsel, and, further, that the court did not
act arbitrarily when it disqualified the defendant’s
assigned counsel, and thus did not abuse its discretion
in so doing. In his reply brief, the defendant acknowl-
edged, as the state argued, that an indigent defendant
does not have a constitutional right to his choice of
assigned counsel, but reiterated his argument that
‘‘once that counsel has been assigned and the defendant
has begun a relationship with his counsel, the defendant
has a constitutional protection against the state or the
courts interfering with that relationship absent a show-
ing that the likelihood and dimensions of any conflicts
of interest are substantial. We agree with the state.
The following facts are relevant to this claim. Approx-
imately two years before his trial, the defendant was
represented by assigned counsel, Attorney Vicki Hutch-
inson. On May 31, 2013, the state filed a motion to
disqualify Hutchinson on the ground that she previously
had represented Warren, potentially a major and mate-
rial state’s witness in the case against the defendant to
whom she owed a duty of loyalty and whose interests
were adverse to the defendant’s. Although the defen-
dant waived any conflict of interest, Warren did not.
The defendant objected to the motion to disqualify.
At a hearing regarding the matter on May 31, 2013,
Hutchinson represented that she was appointed by the
public defender’s office to represent Warren on a differ-
ent matter on November 29, 2011. She formally was
appointed to represent him by the court on November
30, 2011. She received discovery from the state and
met with Warren once in jail. Warren’s charges were
interfering with an officer, attempt to commit assault
in the first degree, reckless endangerment in the first
degree, illegal discharge of a firearm and carrying a
pistol without a permit, but no firearm was ever recov-
ered. She did not do any ‘‘legwork’’ on the case and
spoke to Warren once in jail and to his mother a few
times. She did not anticipate a conflict in cross-examin-
ing Warren because the only information she had was
from public records and any attorney could cross-exam-
ine him on conflicting statements from his original case.
The court found: ‘‘Here the defendant is charged in
concert with a co-defendant Walker in a homicide. An
incident that resulted in the death of a David Caban
during the course of what appeared to be, at least factu-
ally appears to be a drug deal gone bad. I did hear much
of the testimony in the [probable cause hearing]. Mr.
Warren, who is the witness in question, testified in the
[probable cause hearing]. Based on that testimony alone
if the decision were being made, based only on the
testimony I heard in the course of the [probable cause
hearing], frankly, it wasn’t the key evidence in the state’s
case with respect to Mr. [Warren] who is basically
seeing the vehicle after the incident. The defendant—
the witness was not a particularly strong witness, not
a particularly effective witness. And under the circum-
stances I think the equities would favor the defendant
retaining counsel under the circumstances of the testi-
mony I heard.
‘‘Now the claim is totally different. The witness takes
on a different role. He’s now a witness—key witness
and I’m going—at least be a chain in the link that con-
nects this defendant to a specific firearm. A firearm
that, apparently, other witnesses will testify fits the
description of the firearm used in the homicide. And
so now that this defendant is not just placed in the car
with a co-defendant at the time of the homicide but
now—which was the testimony at the hearing in proba-
ble cause, but now his gun, the gun that this witness
Julian Warren will identify as the gun, he has seen the
defendant in possession of. He’s seen the defendant
actually use this gun. Now [it’s] going to be allegedly
connected to the gun used in the homicide. That he
was with the defendant when the defendant actually
used the gun. That’s the specific case that Attorney
Hutchinson represented [Warren] on. That he was with
the defendant when he used the gun and that prior
shooting for which the witness was arrested—Mr. War-
ren was apparently arrested, represented by Attorney
Hutchinson, who represented him from November 29,
2011 to March 8, 2012. And, ultimately, resulting in a
nolle on that date, March 8, 2012.
‘‘So it is certainly a different circumstance from the
testimony I heard during the course of the [probable
cause hearing]. Now claiming that this witness is a key
witness connecting the weapon to the defendant, this
defendant, and to the weapon used in the homicide,
which means that Attorney Hutchinson would necessar-
ily be in the compromised position at trial of cross-
examining the state’s key witness, her former client,
about facts and circumstances that will encompass the
incident in which she represented the witness. Involving
the same gun alleged to have been used in both the
homicide and the earlier shooting. Her goal would nec-
essarily be to discredit the testimony of her prior client
and she would have to accomplish that goal without
jeopardizing privileged communications, privileged
communication she received by Mr. Warren during the
course of her representation of him. The problem—if
this were an unrelated matter in which Attorney Hutch-
inson represented Mr. Warren, I think I again find the
equities in favor of sustaining her appearance in this
case on behalf of the defendant. But this is—this goes
right to the heart of the trial. It goes to a key witness
who she would have to cross-examine in connection
with an incident where she actually represented the
witness.
‘‘So under the circumstances I am satisfied that
despite the defendant’s voluntary waiver of any conflict
that the motion to disqualify Attorney Hutchinson has
to be granted. I’m satisfied that it [affects] the very
integrity of the trial. I think the integrity of the trial
would be compromised by her continued representa-
tion in this case.’’
‘‘[T]he sixth amendment right to counsel of choice
. . . commands, not that a trial be fair, but that a partic-
ular guarantee of fairness be provided—to wit, that the
accused be defended by the counsel he believes to be
best.’’ United States v. Gonzalez-Lopez, 548 U.S. 140,
146, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006). ‘‘To
overcome the presumption in favor of a defendant’s
choice of counsel, a disqualification decision by the
trial court must, therefore, be based upon a reasoned
determination on the basis of a fully prepared record
. . . . Because the interest at stake is nothing less than
a criminal defendant’s sixth amendment right to counsel
of his choice, the trial court cannot vitiate this right
without first scrutinizing closely the basis for the claim.
Only in this way can a criminal defendant’s right to
counsel of his choice be appropriately protected.’’ (Cita-
tion omitted; internal quotation marks omitted.) State
v. Peeler, 265 Conn. 460, 474–75, 828 A.2d 1216 (2003),
cert. denied, 541 U.S. 1029, 124 S. Ct. 2094, 158 L. Ed.
2d 710 (2004).
Although it is generally structural error for a court
to disqualify a defendant’s attorney of choice, ‘‘the right
to counsel of choice is circumscribed in several
important respects. . . . Significantly, a defendant
may not insist on representation by an attorney he can-
not afford or who for other reasons declines to repre-
sent the defendant. . . . [T]he right to counsel of
choice does not extend to defendants who require coun-
sel to be appointed for them. . . . Nor may a defendant
insist on representation by a person who is not a mem-
ber of the bar, or demand that a court honor his waiver
of conflict-free representation. . . . We have recog-
nized 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, moreover, an independent interest in ensur-
ing 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;
emphasis added; internal quotation marks omitted.)
State v. Peeler, 320 Conn. 567, 579, 133 A.3d 864, cert.
denied, U.S. , 137 S. Ct. 110, 196 L. Ed. 2d 89
(2016).
Although ‘‘[a]n attorney [facing a possible conflict]
in a criminal matter is in the best position professionally
and ethically to determine when a conflict of interest
exists or will probably develop in the course of a trial’’;
(emphasis omitted; internal quotation marks omitted)
State v. Crespo, 246 Conn. 665, 696, 718 A.2d 925 (1998),
cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed.
2d 909 (1999), quoting Cuyler v. Sullivan, 446 U.S. 335,
347, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980); see Willis
v. United States, 614 F.2d 1200, 1206 (9th Cir. 1980);
this consideration does not ‘‘[transfer] to defense coun-
sel the authority of the trial judge to rule on the exis-
tence or risk of a conflict . . . .’’ (Internal quotation
marks omitted.) State v. Cruz, 41 Conn. App. 809, 814,
678 A.2d 506, cert. denied, 239 Conn. 908, 682 A.2d 1008
(1996), quoting Holloway v. Arkansas, 435 U.S. 475,
486, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978). ‘‘When a
defendant’s selection of counsel seriously endangers
the prospect of a fair trial, a trial court justifiably may
refuse to agree to the choice. Thus, a trial court may,
in certain situations, reject a defendant’s choice of
counsel on the ground of a potential conflict of interest,
because a serious conflict may indeed destroy the integ-
rity of the trial process.’’ State v. Peeler, supra, 265
Conn. 473. ‘‘There are many situations in which a . . .
court can determine that disqualification of counsel is
necessary. The most typical is where the . . . court
finds a potential or actual conflict in the chosen attor-
ney’s representation of the accused, either in a multiple
representation situation . . . or because of the coun-
sel’s prior representation of a witness or co-defendant
. . . .’’ (Internal quotation marks omitted.) State v.
Crocker, 83 Conn. App. 615, 627, 852 A.2d 762, cert.
denied, 271 Conn. 910, 859 A.2d 571 (2004), quoting
United States v. Locascio, 6 F.3d 924, 931 (2d Cir. 1993).
‘‘[A trial] court must pass on the issue whether or
not to allow a waiver of a conflict of interest by a
criminal defendant not with the wisdom of hindsight
after the trial has taken place, but in the murkier pretrial
context when relationships between the parties are
seen through a glass, darkly. . . . [T]he [trial] court
must be allowed substantial latitude in refusing waivers
of conflicts of interest not only in those rare cases
where an actual conflict may be demonstrated before
trial, but in the more common cases where a potential
for conflict exists which may or may not burgeon into
an actual conflict as the trial progresses.’’ Wheat v.
United States, 486 U.S. 153, 162–63, 108 S. Ct. 1692, 100
L. Ed. 2d 140 (1988).
Indigent defendants are entitled to the appointment
of adequate, competent counsel with undivided loyalty.
Indigent defendants, however, have no right to select
appointed counsel. Arbitrary denial of appointed coun-
sel can be a due process violation. In situations in which
trial courts in other states have changed counsel
appointed for indigent defendants over the wishes of
the defendants, it has been held to be the trial court’s
duty to protect the defendant’s right to effective counsel
while balancing the defendant’s right to retain the coun-
sel he prefers. See McKinnon v. State, 526 P.2d 18, 22
(Alaska 1974); Smith v. Superior Court of Los Angeles
County, 68 Cal. 2d 547, 559, 440 P.2d 65, 68 Cal. Rptr.
1 (1968). We agree with the California Supreme Court,
which stated: ‘‘[O]nce counsel is appointed to represent
an indigent defendant, whether it be the public defender
or a volunteer private attorney, the parties enter into an
attorney-client relationship which is no less inviolable
than if counsel had been retained. To hold otherwise
would be to subject that relationship to an unwarranted
and invidious discrimination arising merely from the
poverty of the accused.’’ Smith v. Superior Court of
Los Angeles County, supra, 562; accord Stearnes v.
Clinton, 780 S.W.2d 216, 221–22 (Tex. Crim. App. 1989).
Factors that have been found not to outweigh an indi-
gent defendant’s right to continued representation by
his appointed counsel include the judge’s subjective
opinion that the counsel is ‘‘ ‘incompetent’ ’’ because
of ignorance of the law to try the case before him;
Smith v. Superior Court of Los Angeles County, supra,
549; a judge’s view that there was an inexcusable lack
of preparation by the public defender’s office; McKin-
non v. State, supra, 21; and mere disagreement by the
trial judge as to the conduct of the defense. Harling v.
United States, 387 A.2d 1101, 1105 (D.C. App. 1978).
A court may, however, change a defendant’s
appointed counsel for a nonarbitrary reason. Factors
that have been found to outweigh an indigent defen-
dant’s right to continued representation by appointed
counsel include a potential conflict of interest because
a defendant’s appointed attorney previously repre-
sented a person whom the defense suspected of com-
mitting the murder of which the defendant was accused,
notwithstanding the defendant’s offer to waive the
potential conflict; People v. Jones, 33 Cal. 4th 234, 240–
42, 91 P.3d 939, 14 Cal. Rptr. 3d 579 (2004); and a
potential conflict of interest that a trial court refused
to allow a defendant to waive where the public defender
whose office was representing the defendant was also
representing a witness the state possibly intended to
call in the case against the defendant. People v. Moore,
71 Ill. App. 3d 451, 453–54, 389 N.E.2d 944 (1979).
In support of disqualifying Hutchinson, the state
argued that an actual conflict existed between her rep-
resentation of the defendant and her ability to cross-
examine Warren during any of the proceedings in the
case. She represented Warren on a shooting charge,
and, at the time this issue arose, the court reasonably
believed that Warren would testify that the firearm from
that shooting belonged to the defendant and was used
in the murder of the victim.
The defendant argues on appeal that there was no
reason to disqualify Hutchinson because after reviewing
the discovery from the state and listening to the state’s
oral representations, Hutchinson did not believe she
had a conflict of interest; that he was properly can-
vassed about any potential conflict of interest and
expressly waived it; and that the state did not ask the
witness, Warren, about the incident that allegedly gave
rise to the conflict of interest either at the probable
cause hearing or at trial.
The court determined that Hutchinson’s potential
conflict of interest risked compromising the integrity
of the trial if she continued to represent the defendant
in this matter and thus granted the state’s motion to
disqualify her. In light of the great difficulty Hutchinson
could have experienced in cross-examining Warren
without violating his rights, we cannot find that the
court abused its discretion in concluding that her
removal as the defendant’s counsel was essential to
protect the integrity of the trial. The state represented to
the court that Warren would be providing key testimony
regarding the firearm used in the robbery that was
unavailable from any other witness, and the court relied
on this representation as presenting a likely and sub-
stantial conflict. The fact that Warren did not later tes-
tify about the defendant’s use of the firearm in question
cannot be considered now because the court could not
have known that at the time that it ruled on the motion
to disqualify. Disqualifying Hutchinson, moreover, can-
not be found to have prejudiced the defendant because
no reason has been advanced as to why the defendant
specially needed her personal services as a lawyer, and
fully twenty months remained after her disqualification
before the start of the defendant’s trial. In sum, we
conclude that the court did not abuse its discretion by
granting the state’s motion to disqualify.
The judgment is affirmed.
In this opinion the other judges concurred.
1
See Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed.
1489 (1946). ‘‘[U]nder the Pinkerton doctrine, a conspirator may be found
guilty of a crime that he or she did not commit if the state can establish
that a coconspirator did commit the crime and that the crime was within the
scope of the conspiracy, in furtherance of the conspiracy, and a reasonably
foreseeable consequence of the conspiracy.’’ (Emphasis in original.) State
v. Patterson, 276 Conn. 452, 483, 886 A.2d 777 (2005).
2
The defendant was also found guilty of felony murder in violation of
General Statutes § 53a-54c, attempt to commit robbery in the first degree
in violation of General Statutes §§ 53a-49 (a) (2) and 53a-134 (a) (2), hindering
prosecution in the second degree in violation of General Statutes § 53a-166,
and tampering with physical evidence in violation of General Statutes § 53a-
155 (a) (1).
At sentencing, the court vacated its finding of guilt as to the charges of
felony murder and attempted robbery in the first degree. The defendant
does not contest his conviction of hindering prosecution in the second
degree or tampering with physical evidence. The defendant was acquitted
of conspiracy to commit murder in violation of §§ 53a-48 and 53a-54a (a).
3
Although Walker was tried in a separate trial, the court refers to him as
the defendant’s codefendant.
4
We note that the court variously referred to Walker as ‘‘Gutter’’ or
‘‘Gudda.’’ For clarity, this opinion will refer to him as Walker.
5
The court found that the phone call that occurred when the victim was
in the shower took place on May 12, 2012. The record reflects, however,
that this call took place two or three days prior.
6
The trial court did not identify Son. The phone was later identified as
belonging to the victim.
7
‘‘Epic’’ refers to the name of a store in a shopping mall.
8
See footnote 1 of this opinion. (A defendant cannot be found guilty of
murder under doctrine of Pinkerton v. United States, 328 U.S. 640, 66
S. Ct. 1180, 90 L. Ed. 1489 [1946], if there was no conspiracy to commit
a robbery.)