State v. Davis ( 2021 )

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STATE OF CONNECTICUT v. BROCK DAVIS
(SC 20335)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn, Ecker and Keller, Js.
Syllabus
Convicted of the crime of murder in connection with the stabbing death of
the victim, the defendant appealed to this court, claiming, inter alia,
that the trial court had violated his sixth amendment right to the effective
assistance of counsel by denying his written motion to dismiss defense
counsel without adequately inquiring into certain grounds for his motion
and without conducting any inquiry into defense counsel’s alleged con-
flict of interest. During a pretrial hearing, the defendant informed the
trial court that he no longer wanted to be represented by defense counsel.
The court ruled that there was no basis to dismiss defense counsel but
that the defendant could file a written motion to dismiss counsel and
provide reasons why counsel should be dismissed. Thereafter, the defen-
dant filed his written motion to dismiss counsel, in which he asserted
four grounds for the dismissal, including that a conflict of interest had
arisen. Following a hearing, the court denied the defendant’s motion
without inquiring into defense counsel’s alleged conflict of interest. Two
years later, at the defendant’s sentencing hearing, the sentencing court
asked the defendant if he wanted to address the court. In response, the
defendant again raised the issue of defense counsel’s alleged conflict
of interest, stating that counsel was also representing the victim’s son.
The court proceeded to sentence the defendant without inquiring into
the alleged conflict of interest. On appeal from the judgment of convic-
tion, held:
1. Contrary to the defendant’s claim, the trial court adequately inquired into
the grounds asserted by the defendant in support of his written motion
to dismiss defense counsel, other than the alleged conflict of interest;
the defendant’s claims that defense counsel did not diligently provide
him with copies of the state’s discovery materials or investigate informa-
tion he had provided to her, that she allowed her investigator to advise
him to plead guilty, and that she violated unspecified professional and
ethical standards were not substantial complaints, and, therefore, they
did not warrant further inquiry by the court, much less the dismissal
of defense counsel.
2. The defendant having clearly brought to the attention of both the court
presiding over the pretrial hearing and the sentecning court the pos-
siblilty of defense counsel’s conflict of interest, both courts had an
affirmative duty to conduct further inquiry into the alleged conflict
of interest by investigating the surrounding facts and questioning the
defendant and defense counsel to determine whether counsel had an
actual conflict of interest and whether that conflict had adversly affected
her representation of the defendant; moreover, because both courts
failed to conduct such an inquiry, this court could not determine, on
the basis of the record before it, whether the defendant’s allegation of
a conflict of interest had any merit, and, accordingly, this court remanded
the case for further proceedings to determine whether defense counsel
had an actual conflict of interest that adversly affected her performance.
Argued November 24, 2020—officially released March 26, 2021*
Procedural History
Substitute information charging the defendant with
the crime of murder, brought to the Superior Court in
the judicial district of Hartford, where the court, Dewey,
J., denied the defendant’s motion to dismiss counsel;
thereafter, the case was tried to the jury before Gold,
J.; verdict and judgment of guilty, from which the defen-
dant appealed to this court. Further proceedings.
Pamela S. Nagy, assistant public defender, for the
appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, former state’s
attorney, and John F. Fahey, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
KELLER, J. Following a jury trial, the defendant,
Brock Davis, was convicted of one count of murder in
violation of General Statutes § 53a-54a. The trial court,
Gold, J., rendered judgment in accordance with the
jury’s verdict and sentenced the defendant to fifty years
of imprisonment. On appeal,1 the defendant claims that
the trial court violated his right to the effective assis-
tance of counsel as guaranteed by the sixth amendment
to the United States constitution by (1) denying his
motions to dismiss defense counsel, Kirstin B. Coffin,
without first adequately inquiring into certain bases
for his motions, namely, that defense counsel did not
diligently provide him with copies of the state’s discov-
ery materials or investigate information he had provided
to her; that, during a meeting with her investigator and
the defendant, she allowed her investigator to recom-
mend that he plead guilty; and that she violated unspeci-
fied professional and ethical legal standards; and (2)
failing to conduct any inquiry into defense counsel’s
alleged conflict of interest.2 We disagree that the trial
court inadequately inquired into the bases for the defen-
dant’s motions to dismiss defense counsel. We agree,
however, that the trial court improperly failed to inquire
into defense counsel’s alleged conflict of interest, and,
accordingly, we remand the case to the trial court for
further proceedings in accordance with this opinion.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to our
analysis of the defendant’s claims. On the morning of
December 9, 2015, the defendant stabbed the victim,
Joseph Lindsey, multiple times at the corner of Albany
Avenue and Baltimore Street in Hartford, where the
two men had been ‘‘hanging out,’’ talking, and drinking
with a third man, Jamar Cheatem, the victim’s friend.
Following the stabbing, Cheatem transported the victim
to a hospital, where he was pronounced dead. The
defendant was subsequently charged with the victim’s
murder. Following the defendant’s arrest, Coffin was
assigned to represent him.
On March 29, 2017, the trial court, Dewey, J., con-
ducted a pretrial hearing at which the defendant
rejected the state’s offer of a plea deal. During the
hearing, the defendant informed Judge Dewey that he
no longer wished to be represented by defense counsel
due to her failure to investigate certain information he
had provided her and to give him a copy of the state’s
discovery materials in a timely manner. The defendant
also complained that defense counsel’s investigator had
encouraged him to plead guilty and that, ‘‘[f]rom the
beginning,’’ defense counsel had ‘‘made mistakes and
alluded to the fact that [he] was guilty.’’ Judge Dewey
responded: ‘‘Well, it’s your decision, obviously. . . .
You have an experienced attorney and the fact that you
don’t like the investigation she’s doing is not a ground
. . . for [dismissing] her . . . . [S]he has been your
strongest advocate in all of the pretrials, and I see no
basis for her to be withdrawn. File a written motion
and give more of [a] reason that complies with the
Practice Book and the constitution. But, at the present
time, she is your attorney. You do have a right to secure
an attorney of your own if you wish. You have a right
to represent yourself if you are competent. You also
have a right to have [defense counsel] represent you.’’
On May 24, 2017, as Judge Dewey had suggested, the
defendant filed a written motion to dismiss defense
counsel in which he asserted four reasons why counsel
should be dismissed: (1) she failed to meet professional
and ethical standards established by the Connecticut
Bar Association and the American Bar Association, (2)
she ‘‘refused to allow [him] to view any items that would
enable [him] to come to an intelligent and informed
decision as to where [his] best interest[s] [lie] and . . .
to aid in his own defense,’’ (3) she failed to investigate
certain information he had provided to her, and (4) ‘‘[a]
conflict of interest has arisen.’’ On June 13, 2017, Judge
Dewey conducted a hearing on the defendant’s motion
at which the defendant reiterated his prior complaint
that defense counsel allowed her private investigator
to advise him to accept the state’s plea deal, which
made him ‘‘feel uncomfortable and [distrustful] that
[the investigator] would actually put forth his best
effort.’’ The defendant also renewed his complaint con-
cerning the amount of time it took for him to receive
a copy of the state’s discovery materials.3 When the
defendant finished speaking, Judge Dewey informed
him that he had given her no reason to dismiss defense
counsel, stating: ‘‘You don’t like what’s happening, but
you haven’t given me a reason to dismiss her.’’ The
defendant responded by stating that ‘‘it took some time
for . . . information to be investigated as well,’’ that
he did not think defense counsel was ‘‘being honest’’
with him and that ‘‘it took . . . a year to get [the discov-
ery materials].’’ Judge Dewey responded that investiga-
tions ‘‘take time . . . to do . . . properly,’’ that
defense counsel ‘‘has a reputation for honesty,’’ and
that ‘‘[t]he fact it took a year [to receive the requested
discovery materials] is not a basis for dismissing coun-
sel.’’ She then denied the motion to dismiss defense
counsel. During the hearing, the defendant did not dis-
cuss the conflict of interest claim, which he cited in
his May 24, 2017 written motion, as an additional ground
to dismiss defense counsel. At no time did Judge Dewey
inquire into the defendant’s claim concerning defense
counsel’s alleged conflict of interest. Nor did Judge
Dewey ascertain whether or not the defendant had fin-
ished arguing each of the bases in his motion to dismiss
defense counsel before Judge Dewey denied the motion
and ended the hearing.4
Two years later, at the defendant’s sentencing hear-
ing, when asked by the trial court, Gold, J., whether he
wished to address the court, the defendant once again
raised the issue of defense counsel’s alleged conflict
of interest. Specifically, he stated that, on two prior
occasions, he had attempted to dismiss defense counsel
because he did not have faith in her abilities and
because she was ‘‘representing the son of [the victim].’’
When the defendant finished speaking, Judge Gold
asked defense counsel if there was ‘‘anything else’’ she
wished to say, and she indicated that there was not.
Judge Gold then addressed the defendant, stating in
relevant part: ‘‘[T]he first words that you say when
you’re given an opportunity to speak is to say . . . I
tried to dismiss my lawyer. Those are the first words
that you . . . wanted to say at your sentencing after
hearing these appeals from [the victim’s] family. . . .
I just don’t think that that . . . puts you in the best
light. You’re free to say whatever you wish to say at
your sentencing, and you did. But frankly, I would have
thought that you would have chosen something other
than a complaint about your lawyer when you had the
chance, after three and [one-half] years, to first express
your feelings to this family.’’ Judge Gold then sentenced
the defendant to fifty years of imprisonment. At no time
did Judge Gold inquire into the defendant’s claim that
defense counsel had a conflict of interest because she
also was representing the victim’s son.
On appeal, the defendant claims that the trial court
violated his constitutional right to the effective assis-
tance of counsel by (1) inadequately inquiring into some
of the bases for his pretrial motions to dismiss defense
counsel, and (2) failing to inquire at all into defense
counsel’s possible conflict of interest.5 The defendant’s
claims implicate separate, yet similar, duties of the trial
court to inquire into the relationship between the defen-
dant and defense counsel when circumstances warrant
such an inquiry. For the reasons set forth hereinafter,
we conclude that the trial court conducted an adequate
inquiry into the defendant’s complaints that defense
counsel did not diligently provide him with copies of the
state’s discovery materials or investigate information
he had provided to her, that she allowed her investigator
to advise him to plead guilty, and that she violated
unspecified professional and ethical legal standards.
We further conclude, however, that both trial judges
improperly failed to inquire into the existence of a possi-
ble conflict of interest when the matter was brought to
their attention.6
I
We begin with the defendant’s claim that Judge
Dewey inadequately inquired into the bases for his oral
and written motions to dismiss defense counsel. Specifi-
cally, the defendant argues that, in both motions, he
asserted a ‘‘seemingly substantial complaint,’’ which
required Judge Dewey to ‘‘inquire into the reasons for
[his] dissatisfaction.’’ (Internal quotation marks omit-
ted.) The defendant argues that a sufficient inquiry
required Judge Dewey to engage him in more than a
cursory exchange regarding his complaints and to ask
defense counsel about those complaints, which she
failed to do.
The state responds that Judge Dewey properly exer-
cised her discretion in declining to conduct an extensive
inquiry into the defendant’s motions to dismiss defense
counsel. The state contends that, distilled to their
essence, the defendant’s complaints about defense
counsel concerned ‘‘the amount of time it had taken
her to conduct her investigation and to provide him
with requested materials, along with vague and unsub-
stantiated feelings or beliefs that counsel was not doing
enough or being honest.’’ The state argues that, because
those complaints ‘‘were made known to [Judge Dewey],
adequately explored, and demonstrably insufficient to
[justify defense counsel’s dismissal] . . . no further
inquiry by [Judge Dewey] was required.’’ We agree with
the state.
The following legal principles guide our analysis of
this claim. It is well established that ‘‘[a] defendant is
not entitled to the appointment of a different public
defender to represent him without a valid and sufficient
reason. . . . Nor can a defendant compel the state to
engage counsel of his own choice by arbitrarily refusing
the services of a qualified public defender.’’ (Citations
omitted.) State v. Gethers, 193 Conn. 526, 543, 480 A.3d
435 (1984); see also State v. Arroyo, 284 Conn. 597,
645, 935 A.2d 975 (2007) (‘‘[a]lthough the constitution
guarantees a defendant counsel that is effective, it does
not guarantee counsel whom a defendant will like’’).
‘‘When reviewing the adequacy of a trial court’s inquiries
into a defendant’s request for new counsel, an appellate
court may reverse the trial court only for an abuse of
discretion. . . . [Of course, a] trial court has a respon-
sibility to inquire into and to evaluate carefully all sub-
stantial complaints concerning court-appointed counsel
. . . . The extent of that inquiry, however, lies within
the discretion of the trial court. . . . When a defen-
dant’s assertions fall short of a seemingly substantial
complaint, we have held that the trial court need not
inquire into the reasons underlying the defendant’s dis-
satisfaction with his attorney.’’ (Citations omitted; inter-
nal quotation marks omitted.) State v. Simpson, 329
Conn. 820, 842–43, 189 A.3d 1215 (2018). We have held
that any irreconcilable conflict that might handicap the
defense is a sufficient reason to warrant the removal
of counsel and the appointment of new counsel. See
State v. Gethers, supra, 543. ‘‘[I]n some circumstances
a complete breakdown in communication between [the
defendant] and counsel [also] may require the appoint-
ment of new counsel . . . .’’ (Citation omitted.) State
v. Robinson, 227 Conn. 711, 727, 631 A.2d 288 (1993).
In the present case, it is readily apparent that Judge
Dewey properly exercised her discretion in denying the
defendant’s motions to dismiss defense counsel because
the defendant’s complaints against defense counsel were
not substantial. As previously indicated, apart from
defense counsel’s alleged conflict of interest, the defen-
dant raised three principal complaints that he claimed
justified counsel’s dismissal: during a meeting with the
defendant, she allowed her investigator, who was also
present, to recommend that he plead guilty, she did
not diligently provide him with copies of the state’s
discovery materials or investigate information he had
provided to her, and she violated unspecified profes-
sional and ethical legal standards.7 We previously have
held that a defendant’s disagreement with defense coun-
sel regarding the strength of the state’s case is not a
valid reason to dismiss counsel. See State v. Simpson,
supra, 329 Conn. 843 (concluding that defendant’s com-
plaint that he ‘‘felt pressured to take the [state’s] plea
[deal] because [he] was told [by defense counsel that he]
had no chance of winning [at] trial’’ was insubstantial
because that advice ‘‘amount[ed] to an experienced law-
yer’s analysis of the evidence available to [the defen-
dant] as against the state’s evidence’’ (internal quotation
marks omitted)); see also, e.g., United States v. Juncal,
245 F.3d 166, 172 (2d Cir. 2001) (‘‘defense counsel’s
blunt rendering of an honest but negative assessment
of [a defendant’s] chances at trial, combined with advice
to enter the plea, [does not] constitute . . . coercion’’);
United States v. Moree, 220 F.3d 65, 72 (2d Cir. 2000)
(‘‘[t]hat the attorney advised [the defendant] to take the
[plea] offer and warned him that his failure to do so
would lead to a thirty year sentence merely asserts
that the lawyer gave professional advice as to what the
consequences of his choice might be’’).
Likewise, the defendant’s complaint that defense
counsel took too long to provide him with a copy of
the state’s discovery materials and to investigate infor-
mation he had provided her was also insufficient to
justify counsel’s dismissal. Indeed, the record reveals
that, by the time of the June 13, 2017 hearing on the
defendant’s written motion to dismiss counsel, which
took place nearly two years before trial, the defendant
not only had received a copy of the requested discovery
materials, but had informed Judge Dewey that the
requested investigation also was completed. As for the
defendant’s complaint that defense counsel violated
professional and ethical standards, Judge Dewey had
no duty of inquiry with respect to this allegation given
that the defendant failed to specify what, or how, any
such standards were violated. Vague assertions of this
kind are simply not the type of complaints that trigger
a trial court’s duty to inquire into the relationship
between a defendant and defense counsel, much less
do they warrant the dismissal of counsel. Accordingly,
we conclude that Judge Dewey adequately inquired into
the complaints underlying the defendant’s motions to
dismiss defense counsel.
II
The defendant next claims that the trial court, on two
different occasions, inadequately inquired into defense
counsel’s possible conflict of interest when the defen-
dant raised the issue. As previously indicated, in his
pretrial, written motion to dismiss defense counsel,
argued before Judge Dewey, the defendant alleged that
‘‘[a] conflict of interest has arisen.’’ Two years later,
during his sentencing hearing, the defendant informed
Judge Gold that he previously had attempted to dismiss
defense counsel because, inter alia, she was ‘‘represent-
ing the son of [the victim].’’ On both occasions, neither
Judge Dewey nor Judge Gold asked the defendant or
defense counsel any questions about the alleged con-
flicts of interest raised before them. The state does not
dispute that Judge Dewey and Judge Gold each had a
duty to inquire into defense counsel’s possible conflict
of interest but, rather, argues that both judges dis-
charged their respective duties of inquiry. We disagree.
It is axiomatic that a criminal defendant’s sixth
amendment right to the effective assistance of counsel8
includes the right to counsel that is free from conflicts
of interest. 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). It is a ‘‘fundamental principle . . .
that an attorney owes an overarching duty of undivided
loyalty to his [or her] client. At the core of the sixth
amendment guarantee of effective assistance of counsel
is loyalty, perhaps the most basic of counsel’s duties.
. . . Loyalty of a lawyer to his [or her] client’s cause is
the sine qua non of the [s]ixth [a]mendment’s guarantee
that an accused is entitled to effective assistance of
counsel. . . . That guarantee affords a defendant the
right to counsel’s undivided loyalty.’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.)
Phillips v. Warden, 220 Conn. 112, 136–37, 595 A.2d
1356 (1991).
In cases involving potential conflicts of interest, this
court has held that ‘‘[t]here are two circumstances
under which a trial court has a duty to inquire . . . (1)
when there has been a timely conflict objection at trial
. . . or (2) when the trial court knows or reasonably
should know that a particular conflict exists . . . .’’
(Internal quotation marks omitted.) State v. Vega, supra,
259 Conn. 388. ‘‘To safeguard a criminal defendant’s
right to the effective assistance of counsel, a trial court
has an affirmative obligation to explore the possibility
of conflict when such conflict is brought to the attention
of the trial judge in a timely manner.’’ (Internal quota-
tion marks omitted.) Id., 389; see State v. Crespo, 246
Conn. 665, 698 n.29, 718 A.2d 925 (1998) (defendant’s
objection to possible conflict of interest ‘‘gives rise to
an absolute duty to inquire’’), cert. denied, 525 U.S.
1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999); State v.
Martin, 201 Conn. 74, 80, 513 A.2d 116 (1986) (conclud-
ing that duty to inquire arises whenever trial court
knows or has reason to know of possible conflict); see
also United States v. Levy, 25 F.3d 146, 153 (2d Cir.
1994) (‘‘[w]hen a [trial] court is sufficiently apprised of
even the possibility of a conflict of interest, the court
. . . has an ‘inquiry’ obligation’’). In such circum-
stances, ‘‘[t]he court must investigate the facts and
details of the attorney’s interests to determine whether
the attorney in fact suffers from an actual conflict, a
potential conflict, or no genuine conflict at all.’’ United
States v. Levy, supra, 153. We review the defendant’s
claim that the trial court failed to inquire into a possible
conflict of interest as a question of law, and, as such,
it is subject to plenary review. See, e.g., State v. Parrott,
262 Conn. 276, 286, 811 A.2d 705 (2003).
Applying the foregoing principles to the present case,
we conclude that it is apparent both Judge Dewey and
Judge Gold had a duty to inquire into the defendant’s
claim, first raised nearly two years before trial, that
defense counsel had a conflict of interest. The defen-
dant’s allegation in his motion to dismiss defense coun-
sel that ‘‘[a] conflict of interest has arisen’’ constituted
not only ‘‘a timely conflict objection at trial’’; (internal
quotation marks omitted) State v. Vega, supra, 259
Conn. 388; but an unmistakably clear one such that,
under our case law, Judge Dewey minimally was
required to inquire as to the nature of the alleged con-
flict. See State v. Martin, supra, 201 Conn. 83 (trial
court improperly denied defense counsel’s motion to
withdraw without ‘‘any inquiry in response to an
explicit representation of a possible conflict of interest’’
(emphasis in original)); see also State v. Parrott, supra,
262 Conn. 288–89 (concluding that, in response to
potential conflict of interest caused by defense coun-
sel’s choosing to sit apart from defendant at trial for
‘‘personal safety’’ reasons, trial court conducted ade-
quate inquiry in which it determined that defendant and
counsel could communicate during voir dire, defendant
wanted counsel to continue to represent him, and coun-
sel felt he ‘‘ ‘absolutely’ ’’ could provide adequate repre-
sentation); State v. Vega, supra, 390–91 (in response to
defendant’s allegation that his filing grievance against
defense counsel created conflict, trial court adequately
inquired and determined that complaints ‘‘were vague
and generally amounted to disagreements with [coun-
sel’s] tactical or strategic decisions, and his concern
that [they] had not had the opportunity to meet . . .
more frequently’’); State v. Kukucka, 181 Conn. App.
329, 342, 186 A.3d 1171 (because defendant ‘‘did not
raise a timely conflict of interest objection before the
trial court,’’ duty of inquiry analysis was limited to
whether trial court knew or reasonably should have
known that conflict potentially existed), cert. denied,
329 Conn. 905, 184 A.3d 1216 (2018).
Likewise, when the defendant complained to Judge
Gold that defense counsel was ‘‘representing the son
of [the victim],’’ Judge Gold had a duty to inquire regard-
ing the facts surrounding that claim to determine
whether counsel was, in fact, representing the victim’s
son and, if so, whether it adversely had affected her
representation of the defendant.9 See State v. Burns,
Docket No. A-4696-03T4, 2006 WL 3093137, *6 (N.J.
Super. App. Div. November 2, 2006) (deeming defense
counsel’s prior representation of victim’s son ‘‘potential
conflict’’ that ‘‘should have been brought to the court’s
attention prior to trial and resolved on the record’’ in
murder trial), cert. denied, 191 N.J. 317, 923 A.2d 231(2007).
The state argues that Judge Dewey satisfied her duty
of inquiry by holding a hearing on the defendant’s
motion to dismiss defense counsel at which the defen-
dant was allowed to argue in support of the motion.
The state contends that, because the defendant did not
mention the alleged conflict during that hearing, ‘‘Judge
Dewey might reasonably have believed that the alleged
‘conflict of interest’ was comprised solely of the defen-
dant’s [other] articulated complaints regarding [defense]
counsel’s performance.’’ This argument is unavailing
because, as we repeatedly have stated, the trial court’s
duty to explore the possibility of conflict when such
conflict is brought to its attention is an affirmative
duty that can be discharged only by the trial court’s
questioning the defendant and defense counsel about
the claimed conflict. See State v. Vega, supra, 259 Conn.
389; State v. Martin, supra, 201 Conn. 82.10
For the same reason, we find no merit in the state’s
contention that Judge Gold fulfilled his duty of inquiry
merely by asking defense counsel, prior to imposing
sentence on the defendant, ‘‘if she had anything further
to say.’’ According to the state, because defense counsel
had ‘‘an independent ethical obligation to avoid or seek
agreement regarding conflicting representations, and
to advise the court promptly if a conflict of interest had
existed or arisen during the trial,’’ and because defense
counsel declined the opportunity to address the defen-
dant’s allegation, Judge Gold ‘‘reasonably could have
assumed that no conflict of interest existed or that the
defendant had agreed to [waive] it.’’ Contrary to the
state’s assertions, if an attorney’s ethical duty to avoid
conflicts and to disclose them whenever they arise was
sufficient to protect a defendant’s right to be repre-
sented by counsel free of any such conflicts, the law
would not have seen fit to impose on the trial court an
independent duty of inquiry.
We recognize that, in the absence of any reason to the
contrary, the trial court may rely on defense counsel’s
representation that there is no conflict, and it has no
obligation to conduct any further inquiry into the sub-
ject. See State v. Cator, 256 Conn. 785, 795, 781 A.2d
285 (2001). In the present case, however, defense coun-
sel did not assert that there was no conflict. See State
v. Lopez, 80 Conn. App. 386, 393–94, 835 A.2d 126 (2003)
(trial court had affirmative duty to inquire about defense
counsel’s possible conflict of interest when counsel
did not assert that there was no conflict or that her
representation of defendant would not be compromised
at trial), aff’d, 271 Conn. 724, 859 A.2d 898 (2004); see
also State v. Martin, supra, 201 Conn. 82 (in discharging
duty of inquiry, ‘‘trial court must be able, and be freely
permitted, to rely upon [defense] counsel’s representa-
tion that the possibility of such a conflict does or does
not exist. . . . The reliance in such an instance is upon
the solemn representation of a fact made by [counsel]
as an officer of the court. . . . The course thereafter
followed by the court in its inquiry depends upon the
circumstances of the particular case.’’ (Citations omit-
ted; internal quotation marks omitted.)). What the trial
court is not permitted to do, however, is simply to infer
from defense counsel’s silence, after the possibility of
a conflict has been raised in open court, that no such
conflict exists. Cf. United States v. Crespo de Llano,
838 F.2d 1006, 1012 (9th Cir. 1987) (‘‘where neither
[the] defendant nor his lawyers objected to multiple
representation, [the] trial court was entitled to assume
that they had determined that no conflict existed or
that [the] defendant had knowingly accepted the risk
of conflict’’ (emphasis added)), citing Cuyler v. Sulli-
van, 446 U.S. 335, 346–48, 100 S. Ct. 1708, 64 L. Ed. 2d
333 (1980).
Because Judge Dewey and Judge Gold failed to
inquire into defense counsel’s alleged conflict of inter-
est, we cannot determine, on the basis of the record
before us, whether that allegation has any merit. In
such circumstances, we must remand the case to the
trial court for a determination of whether defense coun-
sel did, in fact, have an actual conflict of interest that
adversely affected her representation of the defen-
dant.11 Compare Wood v. Georgia, 450 U.S. 261, 272–73,
101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981) (remanding case
to trial court after concluding that it failed to inquire into
‘‘sufficiently apparent’’ conflict of interest, depriving
United States Supreme Court of record necessary to
determine ‘‘whether [defense] counsel was influenced
in his basic strategic decisions by the [alleged conflict
of interest]’’), with Mickens v. Taylor, 535 U.S. 162, 165,
174, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002) (upholding
denial of habeas relief, following evidentiary hearing
on claim that trial court failed to inquire into defense
counsel’s potential conflict of interest because, even if
trial court failed to inquire, petitioner was required, and
had failed, to prove actual conflict and adverse effect
during evidentiary hearing); see also Morgan v. Com-
missioner of Correction, 87 Conn. App. 126, 142–43,
866 A.2d 649 (2005) (remanding case to habeas court
after it inadequately inquired into apparent conflict of
interest because Appellate Court had ‘‘no evidence
before [it] in the record that reveal[ed] whether the
nature of the grievances constituted an actual conflict
of interest’’); State v. Mims, 180 N.C. App. 403, 413, 637
S.E.2d 244 (2006) (remanding case to trial court after
it failed to inquire into possible conflict of interest
because, ‘‘unlike in Mickens, an evidentiary hearing
ha[d] not been held,’’ and, thus, court was unable to
determine if defendant’s right to effective assistance of
counsel had been denied); State v. Gillard, 64 Ohio St.
3d 304, 312, 595 N.E.2d 878 (1992) (remanding case to
trial court after it inadequately inquired into possible
conflict of interest because court ‘‘[could] not be sure
that an actual conflict of interest existed’’).
On remand, the trial court is instructed to conduct
a hearing at which the defendant shall have the burden
of establishing ‘‘(1) that [defense] counsel actively rep-
resented conflicting interests12 and (2) that an actual
conflict of interest adversely affected his [counsel’s]
performance.’’13 (Footnote added; internal quotation
marks omitted.) State v. Parrott, supra, 262 Conn. 287;
see also Cuyler v. Sullivan, supra, 446 U.S. 348. As we
previously have explained, an attorney may be subject
to conflicting interests when ‘‘interests or factors per-
sonal to him [or her] . . . are inconsistent, diverse or
otherwise discordant with [the interests] of his [or her]
client . . . .’’ (Citation omitted; internal quotation
marks omitted.) State v. Crespo, supra, 246 Conn. 690.
To prove adverse effect, a defendant must ‘‘demonstrate
that some plausible alternative defense strategy or tac-
tic might have been pursued but was not and that the
alternative defense was inherently in conflict with or
not undertaken due to the attorney’s other loyalties or
interests.’’ (Internal quotation marks omitted.) State v.
Vega, supra, 259 Conn. 387.
Following the hearing on remand, the trial court is
directed to make its findings of fact and conclusions
of law in writing, which shall promptly be filed with
the Office of the Appellate Clerk for our review. See,
e.g., State v. Pollitt, 199 Conn. 399, 416–17, 508 A.2d 1(1986) (remanding case to trial court with order to
conduct evidentiary hearing on suppression of evidence
claim and instructing court, after making ‘‘its findings
of fact and conclusions of law,’’ to ‘‘promptly file such
findings and conclusions with the clerk of this court
for our review’’); see also Practice Book § 60-2 (‘‘[this]
court may, on its own motion or upon motion of any
party . . . (8) remand any pending matter to the trial
court for the resolution of factual issues where neces-
sary’’). At that time, depending on the trial court’s find-
ings, this court will determine whether it is necessary
to reach the defendant’s remaining claim on appeal
that the trial court improperly admitted into evidence
testimony from lay witnesses identifying him in a sur-
veillance video recording.
The case is remanded for further proceedings in
accordance with this opinion.
In this opinion the other justices concurred.
* March 26, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The defendant appealed directly to this court pursuant to General Stat-
utes § 51-199 (b) (3).
2
The defendant does not assert an inadequate inquiry claim under article
first, § 8, of the Connecticut constitution. The defendant also claims that
the trial court improperly admitted into evidence testimony from three lay
witnesses identifying him in a surveillance video recording in violation of
State v. Finan, 275 Conn. 60, 881 A.2d 187 (2005), and § 7-3 (a) of the
Connecticut Code of Evidence. Because we agree with the defendant that
the trial court was required but failed to inquire into a possible conflict of
interest and remand the case to the trial court to conduct such an inquiry,
we conclude that it is premature to address the defendant’s remaining claim
at this time.
3
The following exchange occurred between Judge Dewey, defense coun-
sel, and the defendant concerning the discovery materials:
‘‘The Defendant: Also . . . when [defense counsel] was given the motion
of discovery . . . I told her I would like a copy. She said she wouldn’t be
able to give me a copy of the motion of discovery at that time. And then,
after I made my complaint, I received it two weeks later.
‘‘[Judge Dewey]: You gave him copies of discovery?
‘‘The Defendant: It took me a year to receive it, Your Honor.
‘‘[Judge Dewey]: Counsel?
‘‘[Defense Counsel]: He requested a copy of his file, Your Honor.
‘‘[Judge Dewey]: Oh, his file?
‘‘[Defense Counsel]: Yes.
‘‘The Defendant: The motion of discovery, I asked for a copy.
‘‘[Judge Dewey]: But not the actual discovery in this case, I hope.
‘‘[Defense Counsel]: Yes, his file, the police reports. . . .
‘‘[Judge Dewey]: You weren’t entitled to discovery. Police reports aren’t
given to prisoners, sir. It might have taken a year [for you to receive a copy
of discovery]. You shouldn’t have gotten it at all.
‘‘The Defendant: Shouldn’t have got what?
‘‘[Judge Dewey]: You should not get copies. Police reports are not given to
people who are incarcerated. Police reports aren’t given, witness statements
aren’t given. They are not given to incarcerated individuals. So, the fact that
you even got it, you should be thankful your attorney gave it to you. You’re
not entitled to it, sir.
‘‘The Defendant: Well, she told me it would have to be redacted, Your
Honor. . . .
‘‘[Judge Dewey]: Oh, if she did redact it, that was fine.’’
4
The June 13, 2017 hearing ended in the following manner:
‘‘[Judge Dewey]: Sir, excuse me?
‘‘The Defendant: If I felt she’s not being honest with me, I can’t really—
‘‘[Judge Dewey]: Sir, if this attorney is anything, she has a reputation for
honesty. There has never been a doubt as to that and her credibility. Perhaps
you feel uncomfortable with her, but, based on your motion, what you’re
indicating—you say that she’s not meeting the Connecticut Bar [Association]
standards. You’ve given me no indication of that. You say she refused to
allow you to review items. Well, because she’s under court orders not to
disclose certain items, except redacted items. You say she’s failed to investi-
gate information. There’s no indication of that.
‘‘The Defendant: Redacted items, it took me a year to get redacted items?
‘‘[Judge Dewey]: The fact [that] it took a year is not a basis for dismissing
counsel. Your motion is denied. Thank you. Thank you, counsel.
‘‘[Defense Counsel]: Thank you, Your Honor.
‘‘([The defendant] returns to lockup).’’
5
The defendant’s first claim pertains to Judge Dewey, whereas his second
claim pertains to both Judge Dewey and Judge Gold.
6
In his written motion to dismiss defense counsel, the defendant cited
an alleged conflict of interest as the fourth basis for dismissing defense
counsel. Because a different legal standard governs the trial court’s duty to
inquire into possible conflicts of interest than its duty to inquire into other
aspects of the relationship between a defendant and defense counsel, we
examine the trial court’s inquiry into the alleged conflict of interest sepa-
rately from that court’s inquiry into the other complaints raised in the
defendant’s motion to dismiss defense counsel.
7
We conclude that Judge Dewey properly exercised her discretion in
response to the defendant’s March 29, 2017 oral motion to dismiss defense
counsel by instructing the defendant to file a written motion providing
further support for the dismissal and, after the defendant filed that motion,
by conducting the June 13, 2017 hearing on it. We note that, except for the
alleged conflict of interest, which was stated in the defendant’s written
motion but not discussed during the June 13, 2017 hearing, all of the com-
plaints raised by the defendant in his oral motion were either incorporated
into his written motion or shared with Judge Dewey during that hearing.
Accordingly, we consider only the adequacy of Judge Dewey’s inquiry into
the defendant’s written motion during that hearing.
8
The sixth amendment right to effective assistance of counsel is made
applicable to the states through the due process clause to the United States
constitution. See, e.g., Evitts v. Lucey, 469 U.S. 387, 392, 105 S. Ct. 830, 83
L. Ed. 2d 821 (1985).
9
We understand that complaints from defendants about defense counsel
are not infrequent and sometimes have no real basis. Nevertheless, this
cannot excuse the well established duty to inquire. We want to emphasize
that the trial court’s duty to inquire is not an onerous one. To the contrary,
when there has been a timely conflict objection or the court knows or has
reason to know of a potential conflict, the duty of inquiry is limited to
determining whether a conflict actually exists, which, in the vast majority
of cases, the court can accomplish by asking a few pointed questions. ‘‘If
the court is satisfied at the inquiry stage that there is no actual conflict or
potential for one to develop, its duty ceases.’’ United States v. Cain, 671
F.3d 271, 293 (2d Cir.), cert. denied sub nom. Soha v. United States, 566
U.S. 928, 132 S. Ct. 1872, 182 L. Ed. 2d 655 (2012), and cert. denied, 571
U.S. 942, 134 S. Ct. 56, 187 L. Ed. 2d 257 (2013); see also State v. Drakeford,
261 Conn. 420, 427–28, 802 A.2d 844 (2002) (‘‘[in the absence of] any reason
to the contrary, the trial court may rely on [defense counsel’s] representation
that there is no conflict, and it has no obligation to conduct any further
inquiry into the subject’’ (internal quotation marks omitted)).
We can perceive no reason, moreover, why the court’s inquiry need
improperly reveal confidential matters between attorney and client. See
Holloway v. Arkansas, 435 U.S. 475, 487, 98 S. Ct. 1173, 55 L. Ed. 2d 426(1978) (noting that trial court can explore ‘‘the adequacy of the basis of
defense counsel’s representations regarding a conflict of [interest] without
improperly requiring disclosure of the confidential communications of the
client’’). Trial courts may take appropriate steps to avoid the potential
disclosure of such confidential information, including, if necessary, conduct-
ing an in camera inquiry with the defendant and defense counsel that is
later summarized on the record. See United States v. Gregoire, 628 Fed.
Appx. 496, 497 (9th Cir. 2015) (remanding case in which District Court
improperly failed to inquire into defendant’s alleged irreconcilable conflict
with appointed counsel to ‘‘conduct an adequate inquiry, including an in
camera hearing if necessary, to determine the extent of the [pretrial] conflict
between [the defendant] and counsel’’); People v. Winbush, 205 Cal. App.
3d 987, 991, 252 Cal. Rptr. 722 (1988) (‘‘[o]nce the request for new counsel
is made, the trial court’s first duty is to fully explore with [the] defendant,
in open court or during an in camera session without the presence of the
prosecutor, [the] defendant’s reasons for desiring new counsel’’); State v.
Yelton, 87 N.C. App. 554, 557, 361 S.E.2d 753 (1987) (observing that ‘‘full
and searching inquiry to determine whether an actual conflict of interest
exists . . . may include in camera proceedings or discussions between the
trial judge and [the] defendants’’ (emphasis in original)); State v. Vicuna,
119 Wn. App. 26, 32–33, 79 P.3d 1 (2003) (suggesting, in response to state’s
‘‘argument that requiring more rigorous inquiry regarding an alleged conflict
could jeopardize attorney-client privilege,’’ that ‘‘court may conduct an in
camera review with a sealed record’’).
10
Although Judge Dewey invited a written motion from the defendant
listing his reasons to dismiss defense counsel, she ended the June 13, 2017
hearing without asking him any questions about defense counsel’s conflict
of interest, which was plainly alleged in his written motion to dismiss.
Accordingly, we disagree with the state that Judge Dewey satisfied her duty
of inquiry during the June 13, 2017 hearing to address defense counsel’s
alleged conflict of interest.
11
Citing Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d
426 (1978), the defendant argues that the trial court’s failure to inquire into
defense counsel’s alleged conflict of interest entitles him to a new trial. The
defendant’s reliance on Holloway is misplaced because that case involved
the trial court’s failure to inquire into whether an attorney’s representation
of three murder defendants at the same trial created a conflict of interest
for the attorney. Id., 478–80. In reversing the convictions of the defendants,
the United States Supreme Court did not require the defendants to show
prejudice but, rather, assumed that the representation was inherently preju-
dicial. Id., 489–91. The court deemed joint representation inherently prejudi-
cial because of what it ‘‘tends to prevent the attorney from doing’’ on behalf
of each of his clients, and because a rule requiring a defendant to show
prejudice would ‘‘not be susceptible of intelligent, evenhanded application,’’
considering the potential for silence in the record as a result of ‘‘what the
advocate finds himself compelled to refrain from doing . . . .’’ (Emphasis
in original.) Id., 489–90. Subsequently, in Mickens v. Taylor, 535 U.S. 162,
122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002), a case involving a trial court’s
failure to inquire into a potential conflict of interest about which it knew
or reasonably should have known; id., 164; the Supreme Court expressly
limited Holloway’s rule of automatic reversal to cases in which ‘‘defense
counsel [was] forced to represent codefendants over [counsel’s] timely
objection . . . .’’ Id., 168. In so doing, the court noted that ‘‘[the] [p]etition-
er’s proposed rule of automatic reversal when there existed a conflict that
did not affect counsel’s performance, but the trial judge failed to make the
. . . mandated inquiry, makes little policy sense.’’ Id., 172. As Justice Ken-
nedy observed in his concurring opinion in Mickens, ‘‘[t]he trial judge’s
failure to inquire into a suspected conflict is not the kind of error requiring
a presumption of prejudice.’’ Id., 176 (Kennedy, J., concurring). Indeed,
automatic reversal in such cases is not only unwarranted but would be
profoundly unfair to the state. In such cases, ‘‘[t]he constitutional question
must turn on whether trial counsel had a conflict of interest that hampered
the representation, not on whether the trial judge should have been more
assiduous in taking prophylactic measures.’’ Id., 179 (Kennedy, J., con-
curring).
12
The record does not reveal whether the conflict alleged by the defendant
before Judge Dewey is the same as the conflict he alleged before Judge
Gold, which was that defense counsel was representing the son of the victim.
To the extent that it is relevant, the trial court should consider on remand
whether the defendant’s alleged conflicts of interest before Judge Dewey
and Judge Gold are the same and whether that has any impact on the
defendant’s ability to satisfy his burden on remand.
13
‘‘Prejudice may be presumed in some sixth amendment contexts, such
as the actual or constructive denial of assistance of counsel altogether or
various forms of state interference with counsel’s assistance. . . . In the
context . . . of counsel allegedly burdened by a conflict of interest . . .
there is no presumption of prejudice per se. Prejudice is presumed only if
the defendant demonstrates that counsel actively represented conflicting
interests and that . . . conflict of interest adversely affected [counsel’s]
performance. . . . The Second Circuit Court of Appeals has honed this test
further. Once a defendant has established that there is an actual conflict,
he must show that a lapse of representation . . . resulted from the conflict.
. . . To prove a lapse of representation, a defendant must demonstrate
that some plausible alternative defense strategy or tactic might have been
pursued but was not and that the alternative defense was inherently in
conflict with or not undertaken due to the attorney’s other loyalties or
interests.’’ (Citations omitted; internal quotation marks omitted.) State v.
Vega, supra, 259 Conn. 387; see also State v. Crespo, supra, 246 Conn. 689n.21 (‘‘If an actual conflict of interest burdens the defendant’s counsel, the
defendant need not establish actual prejudice. . . . The defendant need
only demonstrate that . . . counsel’s performance was adversely affected
by the conflict.’’ (Citation omitted; internal quotation marks omitted.)).