February 1, 2017
from Superior Court, judicial district of Fairfield,
Richard E. Condon, Jr., senior assistant public defender, for
the appellant (defendant).
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.
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
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.
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.''
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
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
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
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.
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.
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.
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.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.
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.
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:
Counsel]: I'd be asking for an appointment with a special
public defender in [Jose's] case, Your Honor.
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?
Counsel]: Your Honor, as the case approaches trial my concern
was that one of them could get-could be interested in
Court: Your job is to evaluate this in the first thirty days
of your representation.
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
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?
Counsel]: He does not want the ten suspended after five
with three probation.
Court: Okay. So, we're going to start trial tomorrow, Mr.
Navarro.'' (Emphasis added.)
thereafter, the court called the defendant's case and
engaged in the following colloquy with counsel:
Counsel]: This is the case where I had intended to ask for a
special public defender, Your Honor.
Court: And what's the basis for that?
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.
Court: I'm not following. You need to give me more
specific reasons than that.
Counsel]: Well, the defense does appear to be in concert,
Your Honor. Should Mr. ...