157 Conn.App. 453
Conn. App. Ct.2015Background
- Defendant Tinesse Tilus was convicted by a jury of first-degree robbery for an incident on December 28, 2011, at a Bridgeport deli; eyewitness Rene Aldof identified Tilus at the scene. A gun was recovered near where one suspect fled and later linked to a prior New Jersey incident.
- Tilus testified and advanced a defense that the store ran an illegal lottery and the alleged robbery story was fabricated to avoid paying a large winning ticket; codefendant Jean-Philippe testified for the defense consistent with that theory and later pleaded under Alford to related charges; codefendant Barjon declined to testify at trial.
- Defense counsel, Eroll Skyers, had earlier represented both Tilus and Barjon in pretrial proceedings; the issue of a potential conflict was raised on the record before trial and the court canvassed Tilus about proceeding with Skyers despite the conflict.
- At trial the court privately advised Barjon of his Fifth Amendment privilege; Barjon ultimately elected not to testify after consulting new counsel. The defense attempted to admit lottery tickets purportedly from the store, but the trial court excluded them for lack of authentication.
- Tilus claims on appeal: (1) inadequate canvass of waiver of conflict-free counsel; (2) the court induced Barjon to invoke Fifth Amendment and thereby impaired Tilus’s right to present a defense; (3) erroneous exclusion of lottery ticket evidence for lack of foundation; and (4) prosecutorial improprieties in closing (including calling a defense witness "muscle"). The appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of conflict-free counsel | State: court properly canvassed; defendant knowingly waived and chose counsel of choice | Tilus: canvass was inadequate; counsel’s prior joint representation created a conflict that required a fuller Curcio-style inquiry | Court: waiver was knowing and intelligent; canvass and prior advisals sufficed; court could rely on counsel and defendant’s statements |
| Court advisement induced invocation of Fifth Amendment | State: court neutrally warned Barjon of privilege; no coercion | Tilus: judge’s repeated questioning pressured Barjon not to testify, impairing right to present defense | Court: no coercion shown; advisement neutral, counsel present, defendant failed to show substantial interference |
| Exclusion of lottery ticket evidence | State: evidence lacked authentication/foundation | Tilus: tickets were relevant to defense that Aldof ran illegal lottery and thus should have been admitted | Court: exclusion proper—defense failed to make prima facie showing connecting tickets to store; no abuse of discretion |
| Prosecutorial improprieties in closing | State: arguments were fair rhetorical inferences and rebutted defense theory | Tilus: prosecutor appealed to passion and argued facts not in evidence (e.g., calling Jean-Philippe "muscle") | Court: some rhetoric permissible; calling witness "muscle" was improper but isolated and not prejudicial given case strength—no due process violation |
Key Cases Cited
- Glasser v. United States, 315 U.S. 60 (U.S. 1942) (defendant may waive conflict-free representation if waiver is knowing and intelligent)
- Cuyler v. Sullivan, 446 U.S. 335 (U.S. 1980) (courts may rely on counsel and clients to accept or reveal conflicts; importance of good-faith reliance)
- United States v. Curcio, 680 F.2d 881 (2d Cir. 1982) (articulated fuller canvass elements for waivers of joint-representation conflicts)
- Webb v. Texas, 409 U.S. 95 (U.S. 1972) (court may not coerce or badger a witness into invoking the Fifth Amendment)
- United States v. Arthur, 949 F.2d 211 (6th Cir. 1991) (reversible error where court repeatedly counseled witness against testifying and caused invocation)
- State v. Tyler-Barcomb, 197 Conn. 666 (Conn. 1985) (prior advisals to codefendants can support waiver of conflict-free counsel)
- State v. Williams, 203 Conn. 159 (Conn. 1987) (discusses knowing waiver of conflict and role of counsel in advising defendant)
- State v. Parrott, 262 Conn. 276 (Conn. 2003) (standards for reviewing Sixth Amendment conflict claims on direct appeal)