May 17, 2017
K. Garg, for the appellant (petitioner).
D. Trudeau, assistant state's attorney, with whom, on the
brief, was John. C. Smriga, state's attorney, for the
Lavine, Mullins and Beach, Js.
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.
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
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.
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.
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.
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.
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. At approximately
8 p.m. on December 28, 2011, Rene Aldof 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.
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
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
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
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.
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.
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 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.
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?
Court: Would you like to consult with another lawyer, a
different lawyer about this, you know, before we go forward
with your case?
Petitioner]: No. . . .
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?
Absolutely have, Your Honor. Yes.'' (Internal
quotation marks omitted.) Id., 464.
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.''
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 ...