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State v. Navarro

Court of Appeals of Connecticut

April 25, 2017

STATE OF CONNECTICUT
v.
FRANCISCO NAVARRO

          Argued February 1, 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).

          DiPentima, C. J., and Alvord and Schaller, Js.

          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 violated his sixth amendment right to conflict free representation 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 negotiations, 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 windows 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 defendant, was refusing to remove his hands from his pockets, was yelling at officers, and was attempting to get away. Eventually, the four officers subdued the defendant and Jose and placed them in separate police cruisers.

         Once in their respective police cruisers, the defendant 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 position. After officers placed him back inside the police cruiser, Jose continued to kick and scream.

         When officers detained the defendant and Jose, Kenney 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 identified him.

         After Kenney positively identified the defendant and Jose, they were transported to a police station for booking. Once at the police station, the defendant and Jose remained combative, screaming profanities and refusing to comply with orders from the officers. As a result, they were placed in holding cells to complete the booking process. While inside his cell, 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 insufficient 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 constitutional 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 anticipating 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 suspended after five with three probation.
''The Court: Okay. So, we're going to start trial tomorrow, 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 ...

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