271 Conn. 724 | Conn. | 2004
Opinion
The defendant, Luis Fernando Lopez, appealed to the Appellate Court from the trial court’s judgment of conviction, following a jury trial, of three counts of risk of injury to a child in violation of General
The underlying facts and procedural history, as set forth in the Appellate Court’s opinion, are as follows. “In March, 1999, the victim
“The alleged molestation came to light when the victim disclosed it to several friends during a school field trip. A teacher’s aide overheard the victim’s conversation and confronted her with the information. The victim confirmed the allegations, but requested that the aide not tell anyone else. The aide, nevertheless, notified the victim’s teacher and the school principal. The principal then notified the victim’s mother and the department of children and families.
“A worker from the department of children and families interviewed the victim. During the interview, the victim repeated her allegations of abuse. The defendant subsequently was arrested and charged with three counts each of sexual assault in the third degree in
The defendant, with the assistance of new counsel, filed a motion for a new trial, alleging for the first time, inter alia, that he had been deprived of conflict-free representation at trial because his trial counsel had put himself in the position of being a material witness and that the court’s inquiry into the matter should have been on the record. The defendant’s motion was based on the following facts. “The victim made certain statements that were inculpatory as to the defendant and that were the basis for the state’s bringing the charges of which he was convicted. Prior to trial, however, the victim wrote and signed a statement recanting her previous accusations against the defendant. The victim testified that she [had done] so at the insistence of her mother and the defendant. She further testified that the defendant [had] dictated the statement to her and that she [had been] angry that she was forced to write the statement because it was untrue.
“After the victim had written a statement recanting her accusations, the victim’s mother and the defendant brought her to the office of the defendant’s trial counsel,
The trial court’s memorandum of decision denying the defendant’s motion for a new trial memorializes the following additional events forming the basis of his claim. At some point during the trial, “[t]he state informed the court, outside of the defendant’s presence and off the record, that [Boylan] may intend to testify at trial.
In denying the motion, the trial court concluded that no conflict existed because Boylan did not intend to testify. The court reasoned “that it was entitled to rely on [Boylan’s] assertion as an officer of the court and that it would be inappropriate to unnecessarily pry into defense strategy. Accordingly . . . there was no duty to conduct an inquiry on the record.” Thereafter, the trial court also denied the defendant’s motion for reconsideration.
The defendant appealed from the judgment of conviction to the Appellate Court, raising claims that, inter
The Appellate Court reversed the judgment of conviction and remanded the case for a new trial. In reaching its conclusion that reversal was mandated, the court first noted that, although sixth amendment claims of ineffective assistance of counsel generally should be asserted by way of habeas corpus rather than direct appeal, because of the need to develop an evidentiary record, this case was distinguishable. Id., 390. It concluded that here, the trial court’s actions, which were evident from the record, were at issue, not the actions of defense counsel. Id.
Turning to the merits of the case, the Appellate Court concluded that, because the possibility of a conflict of interest was sufficiently apparent, the trial court had a duty to inquire about the conflict. Id., 392. The trial court’s actions failed to satisfy that duty, however, because, in determining that Boylan was not going to testify, it had addressed only how the potential conflict, would be handled and had failed to inquire into the actual nature of the conflict itself. Id., 393. The Appellate Court further noted that, because the defendant had not been present during the inquiry, it could not determine whether the defendant had consented to or waived any
The state claims that the Appellate Court improperly concluded that: (1) the trial court’s in-chambers inquiry into the potential conflict of interest had been inadequate; (2) there had been an actual conflict of interest; and (3) no specific showing of harm was required. The state further claims that the defendant cannot show the requisite harm, namely, that his representation was affected adversely. In response, the defendant contends that the Appellate Court properly concluded that the trial court’s inquiry, conducted off the record and in the defendant’s absence, had been inadequate because of its failure to ascertain the nature or effect of the conflict of interest. We agree with the Appellate Court’s ultimate conclusion, albeit for reasons other than those cited by that court. We conclude that the in-chambers inquiry regarding the potential conflict of interest was a critical stage of the defendant’s prosecution at which the defendant had a constitutional right to be present. We further conclude that the trial court’s failure to ensure the defendant’s presence under these circumstances constituted a structural error warranting automatic reversal of the defendant’s conviction.
Before addressing the merits of the state’s claims before us, we note that these claims present issues of law. Accordingly, our review is plenary. See, e.g., State v. Gibson, 270 Conn. 55, 66, 850 A.2d 1040 (2004).
A determination that the defendant’s absence from a critical stage of the proceedings violated his constitutional rights does not end the inquiry that a reviewing court must conduct in deciding whether to order a new trial. “The United States Supreme Court has recognized that ‘most constitutional errors can be harmless.’ . . .
“Structural [error] cases defy analysis by harmless error standards because the entire conduct of the trial, from beginning to end, is obviously affected .... These cases contain a defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself. . . . Such errors infect the entire trial process . . . and necessarily render a trial fundamentally unfair .... Put another way, these errors deprive defendants of basic protections
With these principles in mind, we turn to the case at hand. It is undisputed that the in-chambers inquiry into the potential conflict of interest took place during the defendant’s trial; see footnote 5 of this opinion; and that the defendant was neither present for, nor invited to participate in, the discussion. In Campbell v. Rice, 302 F.3d 892, 899-900 (9th Cir. 2002), the United States Court of Appeals for the Ninth Circuit concluded that such a hearing was a critical stage of the proceedings and that reversal was mandated in similar circumstances. During the defendant’s trial in Campbell, the trial court held an in-chambers hearing, on the record to inquire into a potential conflict of interest on the part of defense counsel. Id., 895. The hearing was initiated because the state had informed the court that defense counsel was being prosecuted on drug charges, unrelated to her client’s case, by the same district attorney’s office that was prosecuting her client then before the court. At that hearing, the trial court asked defense counsel one question—whether she wished to make a statement. Id., 895-96. After defense counsel declined to do so, the trial court determined that no conflict existed.
Turning to the question of whether the lack of the defendant’s presence fell into the category of structural error, the Court of Appeals in Campbell concluded: “[The defendant] would have been able to influence the process in a significant way had he been present at the hearing. . . . [Defense counsel, the defendant’s] only representative at the in-chambers hearing, could not adequately represent [his] interest in conflict-free counsel because she was the subject of the hearing. As a result, [the defendant’s] constitutional right to conflict-free counsel received no consideration beyond the judge’s one question to defense counsel and the one word response that the judge received. Had [the defendant] been informed of [the] potential conflict, and were he or a court-appointed representative present at the in-chambers hearing, [the defendant] or his representative could have asked the judge to expand his inquiry into the potential conflict. Just as the denial of the assistance of counsel affects the integrity of an entire trial, [the defendant’s] exclusion from this critical in-chambers hearing at which his counsel’s potential conflict of interest was evaluated affect[ed] the trial from beginning to end.” (Citation omitted; internal quotation marks
We find this reasoning persuasive. “Where a constitutional right to counsel exists . . . there is a correlative right to representation that is free from conflicts of interest.” State v. Drakeford, 261 Conn. 420, 427, 802 A.2d 844 (2002).
Similarly, we conclude that the defendant’s exclusion from the in-chambers inquiry amounted to structural error.
In the present case, the potential conflict centered around the pivotal witness against the defendant—the victim—and the critical issue at trial—the victim’s credibility. It is impossible to know, had the defendant been present, whether he would have initiated further inquiry into the conflict, requested new counsel or requested that Boylan testify on the defendant’s behalf. Furthermore, we have no way of determining whether Boylan’s cross-examination of the victim was affected because of his questionable role in securing her recantation letter. See footnote 11 of this opinion. It is equally difficult to assess how the jury perceived Boylan as a result of his interaction with the victim and if its perception of Boylan reflected adversely on the defendant. Thus, the consequences of the deprivation of the defendant’s right to be present in this case are “necessarily unquantifiable and indeterminate,” and the deprivation of that right “unquestionably qualifies as ‘structural error.’ ” Sullivan v. Louisiana, supra, 508 U.S. 281-82.
We recognize that, in the vast majority of cases, we require defendants whose constitutional rights have been violated during the course of a trial to make a specific showing of harm or prejudice. We conclude
“If a reviewing court determines that the error is of the structural variety, the court’s task is at an end.” Peck v. United States, 106 F.3d 450, 454 (2d Cir. 1997). We conclude that the denial of the defendant’s constitutional right to be present during the in-chambers inquiry
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
General Statutes (Rev. to 1999) § 53-21 (2) provides in relevant part: “Any person who ... (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of a class C felony.”
In accordance with General Statutes § 54-86e, as amended by Public Acts 2003, No. 03-202, § 15, and this court’s policy of protecting the privacy interests of victims in sexual abuse matters, we decline to identify the victim by name, or others through whom the victim’s identity may be ascertained.
General Statutes § 53a-72a (a) provides in relevant part: “A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person . . .
General Statutes § 53a-72a (a) provides in relevant part: “A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact . . . (B) by the threat of use of force against such other person or against a third person, which reasonably causes such other person to fear physical injury to himself or herself or a third person . . . .”
In the absence of any record of the trial court’s in-chambers inquiry, it is unclear precisely when the discussion took place. During oral argument before this court, however, the defendant represented with certainty that the in-chambers inquiry had taken place after jury selection, and the state did not dispute this assertion.
The defendant also claimed that the trial court improperly had denied his motion for a new trial because the verdict was inconsistent and because the prosecutor’s comments during closing argument constituted misconduct sufficient to warrant a new trial. State v. Lopez, supra, 80 Conn. App. 387-88.
Specifically, the defendant contended that Boylan’s position as a material witness to, and participant in, the events surrounding the victim’s recantation letter was in direct conflict with Boylan’s role as the defendant’s attorney and representative before the jury.
In light of our conclusion, we need not decide whether the Appellate Court properly determined that there was an actual conflict of interest.
Once the court in Campbell was informed of this potential conflict, the following exchange took place:
“ ‘The Court: Do you wish to make any statement at this time, [defense counsel]?
“ ‘[Defense Counsel]: No, that’s fine.
“ ‘The Court: Very well. . . . The Court has determined there is no conflict of interest with respect to [defense counsel] as against her relationship with the district attorney in this case ....’” Campbell v. Rice, supra, 302 F.3d 895-96.
In State v. Drakeford, supra, 261 Conn. 426, we examined the adequacy of an inquiry by the trial court into defense counsel's possible conflict of interest. In addressing the defendant’s claim that the trial court should have canvassed the defendant personally, we noted that the record of the two hearings held in court involving the potential conflict did not reflect whether the defendant had been present. Id., 426 n.10. The issue raised in that case was whether the hearings were adequate; no separate claim regarding the defendant’s right to be present was raised.
This is particularly true because Boylan’s presence at and involvement in the preparation of the victim’s letter recanting her previous accusations might have: impeded his ability to cross-examine the victim; made him a witness at trial; or exposed him, as it did the victim’s mother, to a charge of witness tampering in violation of General Statutes § 53a-151, thereby putting him directly in conflict with the defendant.
Although we have no reason to doubt that the off-the-record inquiry proceeded as represented by the trial court in its memorandum of decision,
Unlike cases in which the existence of an in-chambers conference subsequently is put on the record in open court with the defendant present, thereby affording him the chance either to object or to waive any objection to his having been absent from that conference; United States v. Jones, 381 F.3d 114, 122-23 (2d Cir. 2004); no such opportunity in the present case materialized.
During oral argument before this court, the state conceded that, “if this court considers that this in-chambers conference was a critical stage of the proceedings . . . there is a structural defect . . . and we couldn’t prevail in that regal'd.” Despite the state’s candor, and the evident overlap between the considerations relevant to the critical stage analysis and the structural error analysis under the facts of this case, we view the inquiries as having an independent factor, and we therefore address whether the error is structural or subject to harmless error analysis.