Argued December 14, 2015
Lisa J. Steele, assigned counsel, for the appellant (defendant).
Emily D. Trudeau, deputy assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Joseph Corradino, senior assistant state’s attorney, for the appellee (state).
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.
This appeal requires us to consider the extent to which a criminal defendant is entitled to representation by a particular attorney at a new trial ordered in accordance with United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), as the remedy for the violation of his right to counsel of choice under the sixth amendment to the United States constitution, when that defendant has become indigent and cannot afford to retain that attorney’s services for the new trial. The defendant, Russell Peeler, appeals from the judgment of the trial court in two consolidated cases, rendered after a jury trial conducted on remand from this court’s decision in State v. Peeler, 265 Conn. 460, 828 A.2d 1216 (2003), cert. denied, 541 U.S. 1029, 124 S.Ct. 2094, 158 L.Ed.2d 710 (2004) (Peeler I), convicting him of attempted murder in violation of General Statutes § 53a-49 (a) and General Statutes (Rev. to 1997) § 53a-54a (a), two counts of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 (1), and murder in violation of General Statutes (Rev. to 1997) § 53a-54a (a). On appeal, the defendant claims that the trial court improperly failed to effectuate the remedy ordered by this court in Peeler I for the improper disqualification of his chosen attorney, Gary Mastronardi, when it denied his motion to require the state to pay Mastronardi’s private fee rates, because he had become indigent and Mastronardi would not represent him at the new trial at the rate paid to assigned counsel by the Division of Public Defender Services (division). We disagree and, accordingly, we affirm the judgment of the trial court.
The record reveals the following relevant facts and procedural history regarding the two consolidated cases underlying the present appeal. ‘‘In the first case, the state alleged that, on September 2, 1997, in the vicinity of 500 Lindley Street in Bridgeport, the defendant had attempted to murder Rudolph Snead, Jr., his partner in a crack cocaine operation, by shooting at [him] while in his car, and that the defendant thereby had committed risk of injury to the two minor children, Leroy Brown, Jr., and Tyree Snead, both seven years of age, who were in the backseat of [Rudolph] Snead’s car during the shooting. All three of the victims were identified by name in the police arrest warrant affidavit dated September 11, 1997, and in the second substitute information filed January 20, 1998. In the second case, the state alleged that on May 29, 1998, while he was free on bond following his arrest for the drive-by shooting in the first case, the defendant, who had covered his face to conceal his identity, murdered [Rudolph] Snead at the Boston Avenue Barbershop in Bridgeport. The defendant was represented initially by Frank Riccio in connection with the first case and, thereafter, by . . . Mastronardi, who filed his appearance on July 23, 1998, in connection with both cases.
‘‘Following the consolidation of the two cases, on August 11, 1998, the state filed a motion for a protective order to preclude disclosure to the defense of the identity of certain witnesses, including the two minor victims, Brown and Tyree Snead. At the hearing on that motion, held on October 6, 1998, the trial court, Ronan, J., provided Mastronardi with two alternatives: (1) the court would order disclosure of the names and addresses of the state’s witnesses to Mastronardi, but would prohibit him from disclosing that information to the defendant; or (2) the court would grant the defendant’s discovery motion with the names and addresses redacted. The court assured Mastronardi that, prior to trial, he would be able to share the information with the defendant to prepare his defense. Mastronardi advised the court that he knew that there were two minors involved in the drive-by shooting and that he and the defendant already knew their names. On December 9, 1998, the court nevertheless issued an order precluding Mastronardi from disclosing to the defendant the names and addresses of any witnesses who had given statements to the police. Pursuant to that court order, on or about December 23, 1998, [S]enior [A]ssistant [S]tate’s [A]ttorney C. Robert Satti, Jr., provided Mastronardi with the statement by Brown regarding the drive-by shooting and filed with the clerk of the court notice of service of disclosure with an attached supplemental disclosure listing, inter alia, the statement given by Brown.
‘‘Tragically, on January 7, 1999, Brown and his mother, Karen Clarke, were brutally murdered in their apartment on Earl Avenue in Bridgeport, where they recently had moved. The state thereafter charged the defendant and his brother, Adrian Peeler, in a third case with those murders, and John Walkley filed an appearance as a special public defender for the defendant in connection with the Brown and Clarke murders.
‘‘On June 9, 1999, the state moved to disqualify Mastronardi from representing the defendant in the two cases involving [Rudolph] Snead on the ground that the state intended to call Mastronardi as a witness in the defendant’s capital felony case for the murder of Brown and Clarke.’’ (Footnote altered.) Id., 463–65. After a hearing, the trial court, Thim, J., granted the state’s motion to disqualify Mastronardi, concluding that ‘‘ ‘one of the core issues in the case is . . . [what] knowledge [the defendant] had about Brown’s potential testimony and when and how he obtained that knowledge.’ ’’ Id., 467. Mastronardi then returned the unearned balance of his retainer to the defendant, and the trial court then appointed Attorney Robert Sullivan as assigned counsel to represent the defendant. Id.
‘‘Following a jury trial, the defendant was convicted of all four charges in connection with [two] cases [involving Rudolph Snead] and sentenced to a total effective sentence of 105 years incarceration after the sentence enhancement pursuant to General Statutes § 53-202k was imposed.’’ Id., 468. The defendant appealed from the judgment of conviction directly to this court, claiming that, ‘‘in the absence of a compelling need for Mastronardi’s testimony at the trial involving the Brown and Clarke homicides, the trial court improperly granted the state’s motion to disqualify Mastronardi in the [two] cases [involving Rudolph Snead]. The defendant contend[ed] that he was denied his constitutional right to counsel of choice under the state and federal constitutions because the state did not demonstrate a compelling need for Mastronardi’s testimony.’’ Id., 469; see also Wheat v. United States, 486 U.S. 153, 164, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988); Ullmann v. State, 230 Conn. 698, 716–17, 647 A.2d 324 (1994). This court agreed with the defendant and reversed the judgment of conviction, concluding that the improper disqualification of Mastronardi was structural error requiring a new trial. Peeler I, supra, 265 Conn. 475, 478.
On remand, the trial court, Devlin, J., convened a status conference to determine which attorney would represent the defendant at his new trial, observing that this case was now the oldest matter pending on the judicial district’s docket. Sullivan again entered an appearance on behalf of the defendant as assigned counsel, and appeared with him at that conference, at which Mastronardi also was present. The trial court stated that the defendant now appeared indigent, insofar as the division was representing him, either directly or through assigned counsel, in other pending appeals and habeas corpus matters. In response to the court’s inquiry, Mastronardi stated that he did not ‘‘believe that [he] would be able’’ to represent the defendant, explaining that the defendant had made ‘‘substantial payments toward the trial, ’’ and that ‘‘after my disqualification, I returned all of that money to designated members of his family. So, therefore . . . I’m not holding any trial fee at all anymore, so I would not be in a position at this time to represent [the defendant].’’ Sullivan advised the court that the defendant no longer could afford to pay Mastronardi’s private rates because of his indigency, and that Sullivan did not expect the division to be willing to pay for Mastronardi to represent the defendant at those rates. Mastronardi, in turn, stated that he would not represent the defendant at the division’s assigned counsel fee rates. Sullivan then stated that the defendant intended to file a motion asking the court to order the state to fund Mastronardi’s private fee, or, alternatively, to dismiss the charges against the defendant.
The defendant subsequently filed that motion, asking the court either to require the state to provide funding for his counsel of choice, or, alternatively, to dismiss the charges against him. At a hearing on that motion, the parties established that the defendant was now indigent and that the division would not pay Mastronardi’s private fee rates for the defendant’s representation.The trial court clarified its understanding that Mastronardi would not accept assigned counsel rates to represent the defendant, and stated that it would not compel him to do so. The trial court then disagreed with the defendant’s claim that he was entitled to have the state pay for Mastronardi to represent him at his retrial, rejecting his argument that not doing so would render the constitutional remedy in this court’s decision in Peeler I ‘‘meaningless’’ because it would mean that this court ‘‘is basically sending [the case] back to have another trial with another counsel not of his choice.’’The trial court denied the defendant’s motion, relying on Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989), to conclude that his argument ‘‘focus[ed] in on one phrase in [Peeler I, supra, 265 Conn. 476] to the exclusion of really a much broader context supported by a lot of law, around the country, that the right to . . . private counsel means the right to privately compensated counsel. That’s our history in America. . . . [U]ntil we had public defenders, that’s how people got [attorneys], they paid for them. And so I do not see the fact that [the defendant’s] economic circumstances have now changed to the point where he’s unable to afford counsel to be a justification for either dismissing-basically not putting him to trial on . . . this case.’’ The trial court further denied the defendant’s request for ‘‘public funding of . . . Mastronardi’s fee, ’’ concluding that Peeler I did not require it. Accordingly, the trial court scheduled the matter for a trial at which Sullivan would represent the defendant.
Subsequently, the case was tried to a jury, which returned a verdict finding the defendant guilty on all counts. The trial court, Kavanewsky, J., then rendered a judgment of conviction in accordance with the jury’s verdict, and sentenced the defendant to a total effective sentence of 105 years imprisonment to be served ...