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Tilus v. Commissioner of Correction

Court of Appeals of Connecticut

August 8, 2017

TINESSE TILUS
v.
COMMISSIONER OF CORRECTION

          Argued May 17, 2017

          Vishal K. Garg, for the appellant (petitioner).

          Emily D. Trudeau, assistant state's attorney, with whom, on the brief, was John. C. Smriga, state's attorney, for the appellee (respondent).

          Lavine, Mullins and Beach, Js.

         Syllabus

         The petitioner sought a writ of habeas corpus, claiming that his right to conflict free counsel was violated and that his trial counsel provided ineffective assistance. The petitioner had been convicted of the crime of robbery in the first degree in connection with his alleged conduct in robbing a store with three accomplices, including B. During pretrial proceedings, both the petitioner and B were initially represented by the same public defender, S, who continued to represent the petitioner only during his criminal trial following an inquiry by the trial court concerning a potential conflict of interest. On direct appeal, the petitioner claimed that S's joint representation of the petitioner and B in the pretrial phase presented a conflict of interest and that, because the trial court's inquiry into the matter was not adequate to apprise him of the risks of continued representation by S, there was no valid waiver of the potential conflict, in violation of his constitutional right to conflict free representation. This court rejected the petitioner's claim and affirmed the judgment of the trial court. The Supreme Court dismissed the petitioner's appeal from this court's judgment. Thereafter, the habeas court rendered judgment denying the habeas petition, and the petitioner, on the granting of certification, appealed to this court from the habeas court's judgment. Held:

         1. The petitioner could not prevail on his claim that his constitutional right to conflict free counsel was violated by S's representation of both the petitioner and B prior to the petitioner's criminal trial: the habeas court properly determined that no actual conflict of interest existed and that the petitioner had failed to prove a single, specific instance in which S's representation of him was compromised by the alleged conflict, as the record showed that both B and the petitioner told S the same version of events, there was no evidence that the petitioner ever said or did anything to suggest that he had information that would implicate B or that could have been used to secure for the petitioner a favorable plea deal from the state, and there was no impairment or compromise of the petitioner's interests for the benefit of B; moreover, the habeas court properly determined that the petitioner had failed to prove that he was prejudiced by any potential conflict created by the dual representation, as there was no evidence that the petitioner sought a plea agreement or knew anything that S could have used to negotiate an agreement for him, and it was not likely that the state would have benefited from the petitioner's cooperation.

         2. The habeas court properly determined that the petitioner was not denied his constitutional right to the effective assistance of trial counsel, because, although S's representation was deficient in that he failed to conduct a timely investigation into the charges against the petitioner, the petitioner was not prejudiced thereby; the habeas court correctly concluded that the failure to call A as a defense witness did not undermine the jury's verdict, as A's testimony would not have undermined the testimony of one of the state's witnesses, and the petitioner failed to demonstrate that he was prejudiced by S's introduction of J's testimony, because, even though J testified on cross-examination that he had a criminal record, his testimony on direct examination was consistent with the petitioner's theory of the crime.

         Procedural History

         Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, geographical area number nineteen, and tried to the court, Bright, J.; judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court. Affirmed.

          OPINION

          LAVINE, J.

         The petitioner, Tinesse Tilus, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly concluded that his state and federal constitutional rights to (1) conflict free counsel and (2) the effective assistance of counsel were not violated. We affirm the judgment of the habeas court.

         In 2012, following a jury trial, the petitioner was convicted of one count of robbery in the first degree, in violation of General Statutes § 53a-134 (a) (2), for his participation in the robbery of the Caribbean-American Grocery and Deli in Bridgeport on December 28, 2011. State v. Tilus, 157 Conn.App. 453, 455, 117 A.3d 920 (2015), appeal dismissed, 323 Conn. 784, 151 A.3d 382 (2016). The trial court, Kavanewsky, J., sentenced the petitioner to twelve years of incarceration, execution suspended after eight years, followed by four years of probation. Id., 460. The petitioner's conviction was affirmed by this court on direct appeal. Id., 489. On July 8, 2015, our Supreme Court granted the petitioner certification to appeal limited, in part, to the following issue: ‘‘Did the Appellate Court properly determine that the trial court secured a valid waiver of the [petitioner's] constitutional right to conflict free representation?'' State v. Tilus, 317 Conn. 915, 117 A.3d 854 (2015). The Supreme Court subsequently dismissed the petitioner's direct appeal from the Appellate Court's judgment. State v. Tilus, supra, 323 Conn. 784.[1]

         The following facts, asset forth by this court inresolving the petitioner's direct appeal, provide the context for the claims he raises in the present appeal.[2] At approximately 8 p.m. on December 28, 2011, Rene Aldof[3] and Ramon Tavares were tending Aldof's store on Wood Avenuein Bridge port, ‘‘when four men entered the store. One of the men was the [petitioner], whom Aldof recognized as 'Tinesse, ' a regular customer of the store. Aldof also recognized a second man, Jean Barjon, but did not recognize either of the two other men. One of the unknown men pulled out a handgun and demanded that Aldof give him the money, while the other three men, including the [petitioner], 'encased' him in an effort to prevent his escape. Aldof was able to push past the men and exit the store, pursued by one of the men, who unsuccessfully attempted to restrain him by grabbing his coat. Aldof ran into a nearby laundromat, where he held the door shut to prevent his pursuer from coming in behind him.'' State v. Tilus, supra, 157 Conn.App. 455-56.

         Tavares was stationed in a plexiglass booth with the cash register and remained there after Aldof left the store. Id., 456. A man pointing a gun at Tavares approached the booth and ordered him to open the door. Id. The man entered the booth when Tavares opened the door and turned Tavares to face the wall, held the gun to his head, and took Tavares' cell phone, wallet and the money in the cash register. Id.

         Outside, Bridgeport Police Officer Elizabeth Santora was driving her police cruiser on Wood Avenue when Aldof exited the laundromat and flagged her down. Id. Aldof told Santora that he had been robbed at gunpoint and pointed to one of his assailants who was walking down Wood Avenue. Id., 456-57. Santora followed the suspect and saw him stop next to several trash cans on Sherwood Avenue. Id., 457. She exited her police cruiser, ordered the suspect to stop, apprehended him, and pulled him toward her cruiser. Id.

         ‘‘As Santora approached the cruiser with the suspect in tow, she observed a white Nissan Altima that had been parked on Sherwood Avenue begin 'pulling off' into the street. Aldof, then positioned on the corner of Wood and Sherwood Avenues, told Santora that the three men in the Altima had also been involved in the robbery. Santora flagged down the vehicle and told its driver to stop the car and give her the keys. The driver obeyed. The first suspect and the three men in the Altima were detained for questioning. The [four] men were later identified as Guillatemps Jean-Philippe, Jean Louis, Barjon, and the [petitioner]. Aldof confirmed that the detainees were the same four men who had robbed his store.''[4] Id.

         The petitioner was arrested and charged with conspiracy to commit robbery in the first degree and robbery in the first degree. Id., 458. He pleaded not guilty and testified at trial that on the night of the robbery, ‘‘his friend, Barjon, had come to his house at about 7 p.m. and asked him if he would like to take a ride to New Haven. When he agreed to do so, he got in Barjon's car, where Jean-Philippe and another man he did not know were seated in the rear passenger seat. The [petitioner] was told that Barjon had agreed to drive the two men to the train station in New Haven. Instead, however, Barjon drove to Aldof's store and parked his car on the corner of Wood and Sherwood Avenues. The [petitioner] testified that once they arrived at the store, Jean-Philippe, 'with no mention, nothing, ' got out of the car and entered the store. The [petitioner] and the other two men remained in the parked car . . . .'' Id., 458-59.

         The following undisputed procedural history is relevant to the present appeal. At his arraignment on December 29, 2011, the petitioner was represented by a public defender. Id., 460-61. Barjon also was arraigned that day, and he, too, was represented by a public defender. Id., 461. On January 31, 2012, Eroll Skyers, an attorney, filed an appearance on behalf of the petitioner and Barjon. Id. On February 7, 2012, the petitioner entered a plea of not guilty before the court, Devlin, J. Id. Skyers informed Judge Devlin that he represented both the petitioner and Barjon. Id. On April 9, 2012, the petitioner and Skyers appeared before Judge Devlin. Id. The petitioner rejected the state's plea offer, and the case was placed on the trial list. Id.

         On October 2, 2012, Skyers and Barjon appeared before Judge Devlin. Id. Skyers represented to the court that Barjon intended to plead guilty under the Alford doctrine[5] to the charge of conspiracy to commit robbery in the first degree. Id. ‘‘Barjon failed his plea canvass, however, and thus the court vacated his guilty plea. Because, at that time, it was clear that both Barjon and the [petitioner] intended to proceed to trial, [Judge Devlin] raised with Skyers the potential conflict of interest presented by his continued representation of both men. In this regard, the court focused initially on problems associated with Skyers' continued representation of Barjon. Skyers responded by stating for the record that when Barjon and the [petitioner] first came to him seeking joint representation, he had informed them that there could be a potential conflict if both cases proceeded to trial. Although both men persisted in their desire to have him represent them, they agreed that Barjon would retain other counsel if his case was not resolved by entering a guilty plea.'' (Footnote omitted.) Id., 461-62. The prosecutor questioned whether, given the circumstances, Skyers' continued representation of the petitioner was advisable and identified scenarios that presented a potential conflict of interest. Id., 462. Judge Devlin asked Skyers whether he had discussed the matter with the petitioner. Id. The petitioner was in the courtroom and came forward to answer questions from Judge Devlin. Id. The court explained the attorney-client privilege to the petitioner and potential conflict that could arise as a result of Skyers' having represented both the petitioner and Barjon. Id., 463. The following colloquy occurred.

         ‘‘The Court: So . . . I don't know what Mr. Barjon [is] going to do. I assume he's going to hire his own lawyer, and whatever happens with that case, happens with that case. I'm more concerned with yours because I think I'm going to let Mr. Skyers out of Mr. Barjon's case. But with respect to you, do you still wish to have Mr. Skyers as your lawyer under those circumstances?

         ‘‘[The Petitioner]: Yes.

         ‘‘The Court: Would you like to consult with another lawyer, a different lawyer about this, you know, before we go forward with your case?

         ‘‘[The Petitioner]: No. . . .

         ‘‘The Court: Okay. All right. And, Attorney Skyers, from your point of view, have I correctly framed the issue as far as-is there more that should be put on the record here?

         ‘‘[Skyers]: Absolutely have, Your Honor. Yes.'' (Internal quotation marks omitted.) Id., 464.

         On direct appeal, the petitioner claimed that Judge Devlin's ‘‘failure to secure a valid waiver violated his constitutional right to conflict free representation.'' Id., 460. He argued that ‘‘Skyers' joint representation of [him] and Barjon inthe pretrial phaseof the proceedings gave rise to a conflict of interest which jeopardized the [petitioner's] sixth and fourteenth amendment right to counsel. He further argue[d] that [Judge Devlin's] inquiry into the matter was not adequate to apprise him of the risks of continued representation by Skyers and, thus, no valid waiver was obtained.'' Id., 464. This court disagreed; id., 460; stating that ‘‘the record shows that the court explored the potential conflict of interest when the issue was raised by the prosecutor. The court heard from Skyers and the [petitioner]. Skyers represented to the court that he had discussed the potential conflict of interest with the [petitioner]. The court then informed the [petitioner] of the risks attendant to Skyers' representation of him, namely, Skyers' continuing obligations to Barjon and the ethical barrier to using any information that he had acquired as a result of representing Barjon. The [petitioner] confirmed that he was aware of Skyers' obligations to Barjon, and he expressed his desire to proceed with his retained counsel.'' Id., 467-68.

         This court observed that ‘‘[i]n any case involving a possible conflict of interest, the court must be mindful of the defendant's constitutional right to the counsel of his choice . . . when making a determination as to the soundness of the defendant's determination to move forward with his present counsel despite the potential risks. [O]ur chosen system of criminal justice is built on a truly equal and adversarial presentation of the case, and upon the trust that can exist only when counsel is independent of the [g]overnment. Without the right, reasonably ...


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