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State v. Navarro

Court of Appeals of Connecticut

April 25, 2017


          Argued February 1, 2017

         Appeal from Superior Court, judicial district of Fairfield, Kavanewsky, J.

          Richard E. Condon, Jr., 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.


          ALVORD, J.

         The defendant, Jose 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, interfering with a police officer in violation of General Statutes § 53a-167a, and assault on a police officer in violation of General Statutes § 167c (a) (5). The defendant's identical twin brother, Francisco Navarro (Francisco), was charged with, and convicted of, the same offenses as the defendant, with the exception of the assault on a police officer offense, 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 denying counsel's request to appoint a special public defender to represent him and (2) counsel rendered ineffective assistance by representing him at 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 Francisco, whistling and yelling outside their first floor apartment window. Annoyed by the disturbance, Ken-ney 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.'' Aftera further exchange, the defendant and Francisco came up to the victims' apartment windows. Francisco attempted to pull the security bars off one of the windows while the defendant 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 Francisco continued to attempt to gain access to the apartment. As they did so, the defendant and Francisco continued to yell at the victims, threatening at one point to get a gun, shoot Kenney, and rape Root. Kenney testified that Francisco was ‘‘more aggressive'' than the defendant was during the attempted burglary. For example, Francisco 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 Francisco left the scene on foot. As one of the responding police officers, Officer

         Tom Harper, approached the defendant and Francisco, he asked them to remove their hands from their pockets for safety reasons. The defendant and Francisco 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 Francisco, who was closest to him, in an attempt to detain him and frisk him for weapons. Francisco 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 Francisco while the other two attempted to detain the defendant, who, like Francisco, 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 Francisco and placed them in separate police cruisers.

         Once in their respective police cruisers, the defendant and Francisco continued to struggle, yelling and kicking against the cruiser. Officers testified that the defendant was more aggressive than Francisco was during the arrest process. First, the defendant 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 the defendant 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 the defendant from the police cruiser and move his handcuffs into the correct position. After officers placed him back inside the police cruiser, the defendant continued to kick and scream.

         When officers detained the defendant and Francisco, Kenney was brought to the arrest location so that he could verify whether the defendant and Francisco were the men that attempted to break into his and Root's apartment. Kenney positively identified both the defendant and Francisco. During the course of the identification process, Francisco was brought outside of the police cruiser, but the defendant, because of his combative behavior, could not be let out of the police cruiser safely, and the defendant had to remain inside the police cruiser while Kenney identified him.

         After Kenney positively identified the defendant and Francisco, they were transported to a police station for booking. Once at the police station, the defendant and Francisco remained combative, screaming profanities and refusing to comply with orders from the officers. As aresult, they were placed inholding cells to complete the booking process. While inside his cell, the defendant spat on one of the officers assisting in the booking process.

         The defendant and Francisco subsequently were charged with attempt to commit burglary in the first degree, threatening in the second degree, and interfering with a police officer. The defendant further was charged with assault on a police officer for spitting on an officer during the booking process. The same public defender was appointed to represent the defendant and Francisco. After a joint trial, the defendant was convicted of all four charges. Thereafter, the court imposed on the defendant a total effective sentence of twelve years imprisonment, execution suspended after six years, followed by five years of probation. This appeal followed. Additional facts will be set forth as necessary.


         The defendant first claims that the court, Devlin, J., violated his sixth amendment right to conflict free representation by denying counsel's request that a special public defender be appointed to represent him.[1]The state responds that the court did not violate the defendant's constitutional rights because it conducted an adequate inquiry into the potential conflict of interest raised by counsel and it reasonably concluded that the conflict was too speculative to require the appointment of separate counsel. We agree with the state.

         The following additional facts are relevant to this claim. On March 29, 2013, a public defender was assigned to represent jointly the defendant and Francisco. At four pretrial hearings for the defendant and Francisco 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 Francisco's defenses were in concert. Additionally, at pretrial hearings on September 5 and November 4, 2013, the defendant and Francisco 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 Francisco'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 the defendant'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. ...

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