State v. Navarro

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STATE OF CONNECTICUT v. FRANCISCO NAVARRO
(AC 37724)
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.)
Deren Manasevit, assigned counsel, with whom, on
the brief, was Neal Cone, 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, Francisco 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, and interfering
with a police officer in violation of General Statutes
§ 53a-167a. The defendant’s identical twin brother, Jose
Navarro (Jose), was charged with, and convicted of,
the same offenses as the defendant and, in addition,
with assault on a police officer, after the joint trial at
which they were jointly represented by defense counsel.
On appeal, the defendant claims that (1) the court vio-
lated his sixth amendment right to conflict free repre-
sentation by conducting an inadequate inquiry into
whether a conflict of interest had arisen in the joint
representation and (2) counsel rendered ineffective
assistance by representing him during plea negotia-
tions, trial, and sentencing while burdened by an actual
conflict of interest. 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 Jose,
whistling and yelling outside their first floor apartment
window. Annoyed by the disturbance, Kenney 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 Jose came
up to the victims’ apartment windows. The defendant
attempted to pull the security bars off one of the win-
dows while Jose 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 Jose continued to attempt to gain access
to the apartment. As they did so, the defendant and
Jose continued to yell at the victims, threatening at one
point to get a gun, shoot Kenney, and rape Root. Kenney
testified that the defendant was ‘‘more aggressive’’ than
Jose was during the attempted burglary. For example,
the defendant 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 Jose left the scene on
foot. As one of the responding police officers, Officer
Tom Harper, approached the defendant and Jose, he
asked them to remove their hands from their pockets
for safety reasons. The defendant and Jose 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 the defendant, who
was closest to him, in an attempt to detain him and frisk
him for weapons. The defendant continued to ignore
Harper’s request that he show his hands, and he became
combative, yelling and pulling away as Harper
attempted to place him in handcuffs. Around this time,
three additional officers arrived on the scene. One
assisted Harper in detaining the defendant while the
other two attempted to detain Jose, who, like the defen-
dant, was refusing to remove his hands from his pock-
ets, was yelling at officers, and was attempting to get
away. Eventually, the four officers subdued the defen-
dant and Jose and placed them in separate police
cruisers.
Once in their respective police cruisers, the defen-
dant and Jose continued to struggle, yelling and kicking
against the cruiser. Officers testified that Jose was more
aggressive than the defendant was during the arrest
process. First, Jose 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 Jose 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 Jose from the police
cruiser and move his handcuffs into the correct posi-
tion. After officers placed him back inside the police
cruiser, Jose continued to kick and scream.
When officers detained the defendant and Jose, Ken-
ney was brought to the arrest location so that he could
verify whether the defendant and Jose were the men
that attempted to break into his and Root’s apartment.
Kenney positively identified both the defendant and
Jose. During the course of the identification process,
the defendant was brought outside of the police cruiser,
but Jose, because of his combative behavior, could not
be let out of the police cruiser safely, and Jose had to
remain inside the police cruiser while Kenney identi-
fied him.
After Kenney positively identified the defendant and
Jose, they were transported to a police station for book-
ing. Once at the police station, the defendant and Jose
remained combative, screaming profanities and refus-
ing to comply with orders from the officers. As a result,
they were placed in holding cells to complete the book-
ing process. While inside his cell, Jose spat on one of
the officers assisting in the booking process.
The defendant and Jose subsequently were charged
with attempt to commit burglary in the first degree,
threatening in the second degree, and interfering with
a police officer. Jose further was charged with assault
on a police officer for spitting on the officer during
the booking process. The same public defender was
appointed to represent the defendant and Jose. After a
joint trial, the defendant was convicted of all three
charges. Thereafter, the court imposed on the defendant
a total effective sentence of ten years imprisonment,
execution suspended after five years, followed by five
years of probation. This appeal followed. Additional
facts will be set forth as necessary.
I
We begin by addressing the defendant’s claim that the
court, Devlin, J., violated his sixth amendment rights to
conflict free representation by conducting an insuffi-
cient inquiry into the existence of a conflict of interest,
as required by Holloway v. Arkansas, 435 U.S. 475, 98
S. Ct. 1173, 55 L. Ed. 2d 426 (1978).1 The state responds
first that the court had no duty under Holloway to
inquire into whether a conflict of interest existed in
counsel’s representation of the defendant because
counsel never indicated that such a conflict might exist
with respect to him. Alternatively, the state argues that
even if Holloway applies, the court did not violate the
defendant’s constitutional rights because it conducted
an adequate inquiry into the potential conflict raised by
counsel and it reasonably concluded that the proffered
conflict was too speculative to require the appointment
of separate counsel for Jose. We conclude that the
court’s inquiry into the existence of a conflict of interest
in the joint representation complied with the constitu-
tional requirements of Holloway and that the court did
not err by not appointing a special public defender to
represent Jose.
The following additional facts are relevant to this
claim. On March 29, 2013, a public defender was
assigned to represent jointly the defendant and Jose.
At four pretrial hearings for the defendant and Jose
between August 6, 2013, and April 21, 2014, counsel
represented to the court that there was presently no
conflict of interest in the joint representation because
the defendant and Jose’s defenses were in concert.
Additionally, at pretrial hearings on September 5 and
November 4, 2013, the defendant and Jose 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 the defendant’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 Jose’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, Holloway
imposes ‘‘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.) Id, 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’’; id., 484; the court may deny counsel’s request
for separate counsel. See id. This is because ‘‘[i]t is not
representation 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]).
When counsel informed the court of his concern that
a conflict of interest might arise if the defendant decided
to plead guilty, the court’s duty to inquire under Hol-
loway was triggered. Based on the particular circum-
stances in this case, however, we conclude that the
court conducted an adequate inquiry into the proffered
conflict of interest and did not err in determining that
the conflict was too speculative to require the appoint-
ment of separate counsel for Jose.
When Jose’s case was called, the court immediately
asked counsel to articulate the basis for his request for
a special public defender for Jose.3 Counsel indicated
that ‘‘there is some possibility of a conflict should Fran-
cisco 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, counsel 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 Jose Navarro.’’
(Emphasis added.) When the court asked counsel
whether the defendant wanted to resolve the case or
go to trial, counsel represented, as he had during the
defendant’s pretrial hearing, that the defendant wanted
to go to trial. On the basis of counsel’s representation,
the court reasonably concluded that the conflict of
interest identified by counsel was speculative and too
remote to require the appointment of separate counsel
for Jose. 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 raises several issues con-
cerning the substance of the court’s inquiry. The defen-
dant first argues that the court improperly focused on
the timing of counsel’s request rather than on the nature
of the potential conflict. We disagree. Although the
court expressed its consternation at the untimely nature
of counsel’s request for substitute counsel for Jose dur-
ing the defendant’s hearing, the court clearly afforded
counsel an opportunity during Jose’s hearing to explain
why substitute counsel was necessary. Counsel stated
that there was a potential for a conflict of interest
should the defendant plead guilty, but he was unable
to explain why this event was not too remote to require
the appointment of separate counsel.
The defendant also argues that the court’s inquiry
was inadequate because it ‘‘ignored the obvious—that
[the] Defendant was suddenly willing to inculpate Jose
in return for a more favorable disposition.’’ Similarly,
the defendant argues that the court’s inquiry was inade-
quate because the court did not recognize the risk that
the defendant or Jose might decide to testify at trial in
a manner that was adverse to the interests of the other.
Contrary to the defendant’s repeated assertions, it was
not ‘‘obvious’’ at the May 29 hearing that he was inter-
ested in cooperating with the state in exchange for a
favorable plea agreement. Counsel never represented
to the court that the defendant was interested in cooper-
ating with the state against Jose or that his concurrent
representation of the defendant and Jose was inhibiting
his ability to negotiate a favorable plea deal for the
defendant. Nor did counsel represent to the court that
he was concerned that one defendant might testify in
an adverse manner at trial.
We reiterate that ‘‘Holloway [requires] an inquiry only
when ‘the trial court knows or reasonably should know
that a particular conflict exists.’ . . .’’ (Emphasis
added.) Mickens v. Taylor, supra, 535 U.S. 168. It does
not require the trial court to inquire into the existence
of ‘‘a vague, unspecified possibility of conflict, such as
that which inheres in almost every instance of multiple
representation.’’ (Internal quotation marks omitted.)
Id., 169. ‘‘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 evaluat-
ing whether a potential conflict of interest exists. . . .
[D]efense counsel have an ethical obligation to avoid
conflicting representations and to advise the court
promptly when a conflict of interest arises during the
course of trial. Absent special circumstances, there-
fore, 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 in
original; internal quotation marks omitted.) State v.
Gaines, 257 Conn. 695, 708, 778 A.2d 919 (2001).
Because the potential conflicts identified by the defen-
dant on appeal exist in almost every instance of joint
representation and counsel never expressed concerns
about them manifesting in the defendant’s case, the
court was not required to inquire about them. See State
v. Crespo, 246 Conn. 665, 697, 718 A.2d 925 (1998) (‘‘A
trial judge cannot be expected to be prescient. . . .
Before the trial court is charged with a duty to inquire,
the evidence of a specific conflict must be sufficient to
alert a reasonable trial judge that the defendant’s sixth
amendment right to effective assistance of counsel is
in jeopardy.’’), cert. denied, 525 U.S. 1125, 119 S. Ct.
911, 142 L. Ed. 2d 909 (1999).
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 because counsel was burdened by an
actual conflict of interest that adversely affected his
performance during plea negotiations, trial, and sen-
tencing. 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 both of the state’s
arguments.
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 at 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.’’ (Emphasis added.)
The court first canvassed Jose concerning his rights
and the types of conflicts of interest that might arise
from joint representation. The court then engaged in
the following colloquy with the defendant:
‘‘The Court: Okay. And you’ve been present during
what’s been said so far today?
‘‘[The Defendant]: Yes, sir.
‘‘The Court: Okay.
‘‘The Court: And do you have an understanding of
what’s been said?
‘‘[The Defendant]: Yes, sir.
‘‘The Court: Okay. I have to ask you the same ques-
tions even though you’ve heard them already. What I’m
trying to do is satisfy that you understand that should
there be any conflicts that you have made an intelligent
waiver of your choice to allow counsel to represent
both you and your brother. Do you understand that?
‘‘[The Defendant]: Yes, sir.
‘‘The Court: All right. So some examples again are
whether or not to accept or reject a plea offer to one
defendant conditioned on the defendant testifying
against the other, whether or not to present a defense
that helps one defendant more than the other, whether
or not to cross-examine a witness whose testimony
may help one defendant or hurt the other, whether to
have one defendant testify while the other exercises
his right to remain silent. Although as I said before,
the decision to testify is a right that’s personal to the
defendant, that’s his choice not his counsel’s choice,
whether or not to emphasize in summation that certain
evidence is admitted only against or is less compelling
against one defendant than the other.
‘‘And last, should we come to the point of a sentenc-
ing, whether or not to argue at sentencing that one
defendant’s role in the criminal activity was shown
to be or was arguably subordinate or less—well, it was
more minimal than the other defendant’s role. Do you
understand those are all situations that could arise dur-
ing the course of a trial and your attorney who is repre-
senting your brother would be confronted with those
choices, you understand that?
‘‘[The Defendant]: Yes, sir.
‘‘The Court: Okay. I want to make sure that you have
been advised of your right to effective representation,
and that you understand the details of your attorney’s
possible conflicts of interest and potential perils of such
conflicts that you’ve discussed the matter with your
attorney, or if you had so desired discussed it with
outside counsel and that you voluntarily waive any . . .
Sixth Amendment protections or conflict-free represen-
tation, do you understand that?
‘‘[The Defendant]: Yes, sir.
‘‘The Court: Okay. So again, what I am going to do
is—do you have any questions of me right now? Do
you have any questions to ask me about what I’ve said?
‘‘[The Defendant]: No, Your Honor.’’ (Emphasis
added.)
The court then informed both defendants that they
were going to take a brief recess, during which they
could consult further with counsel, and afterwards it
would ask them individually whether they wanted to
proceed with counsel as their attorney. After the recess,
the court received Jose’s assurances that he wanted to
waive his right to conflict free representation and to
proceed with counsel representing him. The court then
engaged in the following colloquy with the defendant:
‘‘The Court: And Mr. Francisco Navarro, again you
heard me go over it before, examples of situations that
might run the risk of your attorney having to favor
or choose to favor one defendant more than the other
and that’s what I’m talking about when I say represen-
tations might not be conflict free. Do you waive any
potential for representation that might not be conflict
free in this case?
‘‘[The Defendant]: Yes, Your Honor.
‘‘The Court: Okay. And do you wish [counsel] to repre-
sent you?
‘‘[The Defendant]: Yes, Your Honor.
‘‘The Court: Do you have any questions for him
about that?
‘‘[The Defendant]: No.
‘‘The Court: Do you have any questions for me
about that?
‘‘[The Defendant]: No.’’ (Emphasis added.)
After completing the defendant’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.’’
A
We first address the defendant’s claim that a conflict
of interest adversely affected counsel’s performance
during plea negotiations. The defendant argues first that
his waiver at the June 2, 2014 hearing does not apply
retroactively to his right to conflict free representation
during plea negotiations. The defendant further claims
that an actual conflict existed during plea negotiations
and that conflict adversely affected counsel’s perfor-
mance. The state responds that the defendant waived
his right to conflict free representation during the June
2 hearing. Alternatively, the state argues that the defen-
dant’s claim is unreviewable because the record is inad-
equate to determine whether the defendant waived his
right to conflict free representation prior to the June 2
hearing and whether counsel labored under an actual
conflict of interest that adversely affect his performance
during plea negotiations. We conclude that the record
is inadequate to review the defendant’s claim on the
merits, and, therefore, we need not address whether
the defendant waived his right to conflict free represen-
tation during plea negotiations.
‘‘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. . . . Moreover, we have stated as our
preference that all of the claims of ineffective assis-
tance, those arguably supported 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, more-
over, 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 requir-
ing 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, supra, 246 Conn. 687–90; see also Cuyler v.
Sullivan, supra, 446 U.S. 350 (‘‘the possibility of con-
flict is insufficient to impugn a criminal conviction’’
[emphasis added]).
The record before us is inadequate to determine
whether counsel labored under a conflict of interest
during plea negotiations. The defendant contends that
plea negotiations always create a conflict of interest in
cases where defendants are jointly represented because
the joint representation prevents counsel from arguing
that one defendant should be given ‘‘a break’’ because
of certain mitigating factors or from negotiating a plea
deal that would require one client to implicate or testify
against another. Although the defendant correctly iden-
tifies several potential conflicts that might arise during
plea negotiations for jointly represented defendants, to
prevail in his claim the defendant must establish that
an actual conflict of interest arose during plea negotia-
tions. The record demonstrates only that the defendant
was offered two plea deals and that he rejected both.
It does not reflect what transpired during plea negotia-
tions. Nor does it reflect what counsel and the defen-
dant discussed prior to or during plea negotiations. As
a result, we do not know whether counsel argued that
the defendant was more entitled to ‘‘a break’’ than Jose
or whether the defendant told counsel that he would
not accept a plea deal that required him to testify against
his brother.
‘‘Accordingly, we shall not review at this time . . .
the defendant’s ineffective assistance [claim] that he
contends [is] adequately supported by the record. . . .
[W]e believe that his ineffective assistance [claim]
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 omitted.) 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).
B
Finally, the defendant claims that a conflict of interest
adversely affected counsel’s performance at trial and
sentencing. With respect to trial, the defendant claims
that the joint representation prevented counsel from
effectively cross-examining Jose. With respect to sen-
tencing, the defendant claims that the joint representa-
tion prevented counsel from effectively arguing that he
was entitled to a lesser sentence than Jose was. The
state responds that the defendant waived his right to
conflict free representation at trial and sentencing at
the June 2, 2014 hearing. Alternatively, the state argues
that the record is inadequate to review these claims on
the merits. We agree with the state.
The following additional facts are relevant to this
claim. At trial, Jose elected to testify on his own behalf,
but his testimony was limited to his arrest and booking.
During that testimony, Jose mentioned that he was
wearing ‘‘pajama pants’’ with ‘‘flip flops’’ on the night
in question, May 29, 2013.
We conclude that the defendant knowingly and volun-
tarily waived his right to conflict free representation at
trial and sentencing at the June 2 hearing. ‘‘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 under-
stands 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 unequiv-
ocally . . . that he nevertheless chooses to hazard
[the] dangers of waiving conflict-free representation,
then his waiver may appropriately be accepted. . . .
The waiver is not vitiated simply because the defendant,
with the benefit of hindsight, might have chosen differ-
ently. A defendant need not be prescient in order to
waive knowingly and intelligently the right to conflict-
free representation.’’ (Citations omitted; internal quota-
tion marks omitted.) Id., 167–68.
At the June 2 hearing, the court canvassed the defen-
dant concerning his waiver of his right to conflict free
representation. As part of that canvass, the court pro-
vided the defendant with several examples of the types
of conflicts that might arise at trial and sentencing and
cautioned the defendant that by continuing with joint
representation ‘‘[you] run the risk of your attorney hav-
ing to favor or choose to favor one defendant more
than the other.’’ 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 con-
flict of interest that might arise from the joint represen-
tation and that he wanted counsel to continue to
represent him.
The defendant now argues that this waiver was not
knowing and intelligent because the court (1) improp-
erly remarked that it did not believe, after previewing
the state’s evidence, that a conflict of interest existed
and (2) never explained what it meant to consult with
‘‘outside counsel.’’ We disagree. We are not persuaded
that the court’s frank assessment of the conflict situa-
tion prevented the defendant from understanding the
risks associated with joint representation. The court
acknowledged when speaking to the defendant that a
conflict of interest could exist ‘‘although I’m not seeing
it here.’’ The court also conducted a thorough and infor-
mative canvass that explored a variety of conflicts that
might arise before, during, and after a trial. The defen-
dant 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 ‘‘outside counsel’’
prevented the defendant from understanding 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 for the sake
of argument that the defendant did not waive his right
to conflict free representation at trial and sentencing,
his claims are unreviewable. The defendant first argues
that counsel was ineffective for not eliciting testimony
from Jose that he and the defendant were not involved
in the attempted burglary or threatening of the victims
and for not cross-examining Jose concerning his asser-
tion that he was wearing flip-flops during the booking
process. The defendant appears to argue that by not
soliciting testimony from Jose that he and the defendant
were not involved in the attempted burglary, counsel
permitted Jose implicitly to admit that they were
involved in the incident. Additionally, the defendant
appears to argue that by permitting Jose to testify
unchallenged that he was wearing flip-flops, counsel
permitted Jose to testify that ‘‘he [Jose], unlike Fran-
cisco, should be ruled out as trying to kick down the
back door of Kenney’s rooming house.’’4
The defendant also argues that counsel was ineffec-
tive for not highlighting at his sentencing certain factors
that would have painted him in a more sympathetic
light than Jose and would have supported an argument
for a lesser sentence. For example, he believes that the
joint representation prevented counsel from emphasiz-
ing that, unlike Jose, he suffered from a traumatic brain
injury, which impaired his cognitive abilities,5 and had
no prior convictions for assault on a police officer.6
Contrary to the defendant’s assertion, we cannot con-
clude from this record that counsel’s actions at trial
and sentencing were the product of an impaired duty
of loyalty. The decision not to question Jose about the
attempted burglary or his footwear may have been
based on counsel’s ethical obligations; see Rule 3.3 of
the Rules of Professional Conduct;7 or part of a reason-
able trial strategy, properly discussed with and agreed
to by the defendant. Similarly, the decision not to high-
light the factors identified by the defendant at the sen-
tencing hearing might also have been part of a
reasonable sentencing strategy on the part of counsel.
Accordingly, we decline to review the defendant’s inef-
fective assistance claims.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant also appears to raise a due process claim. In his statement
of the issues, the defendant alleges a due process violation. Similarly, when
addressing the reviewability of his claim, the defendant argued that the
court committed a ‘‘ ‘due process’ error’’ by failing to conduct a sufficient
inquiry into the existence of a conflict of interest and that, therefore, the
case should be remanded for further proceedings. See Wood v. Georgia, 450
U.S. 261, 272–74, 272, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981) (case remanded
sua sponte with instructions for determination of whether conflict of interest
of employees’ counsel, who also represented employer, existed at probation
revocation hearing such as to constitute violation of employees’ due process
rights). The defendant did not subsequently analyze, however, the relation-
ship between the law cited and the facts of his case. Instead, the defendant’s
analysis identifies this claim as a ‘‘Holloway claim’’ and focuses exclusively
on sixth amendment jurisprudence. Accordingly, we decline to review the
defendant’s due process claim because it was briefed inadequately. See
State v. Buhl, 321 Conn. 688, 724, 138 A.3d 868 (2016).
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 takes issue with the fact that the court did not address
the conflict issue during his pretrial hearing. The defendant overlooks the
fact that counsel did not alert the court to the potential conflict of interest
until Jose’s case was called. When the court became aware of the potential
conflict issue, it immediately conducted an inquiry into whether a conflict
of interest had arisen or was likely to arise in the joint representation.
4
As we previously stated, Kenney also identified the defendant as the
individual who attempted to kick in the back door.
5
We observe that at the sentencing hearing, counsel observed how the
defendant was victimized in an accident that ‘‘left him with some physical
difficulties’’ and how he continues to attempt to find work despite those
difficulties. Additionally, although the defendant’s presentence investigation
report is not part of the record before us, at the sentencing hearing, the
court observed that the presentence investigation report discussed the attack
that caused the defendant’s traumatic brain injury and other medical issues.
6
We observe that although the defendant does not have prior convictions
for assault on a police officer, he has several prior convictions, including
convictions for breach of peace, threatening in the second degree, and
violation of a protective order.
7
Rule 3.3 of the Rules of Professional Conduct states in relevant part:
‘‘(a) A lawyer shall not knowingly . . . (3) Offer evidence that the lawyer
knows to be false. . . .’’