State v. Cator

• Decision Date: 17 July 2001
• Docket Number: (SC 15922)
• Citation: 781 A.2d 285,256 Conn. 785
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. FRANTZ CATOR

256 Conn. 785

781 A.2d 285

STATE OF CONNECTICUT v. FRANTZ CATOR

(SC 15922)

Supreme Court of Connecticut.

Argued September 28, 2000.

Officially released July 17, 2001.

McDonald, C. J., and Borden, Palmer, Sullivan and Vertefeuille, Js.¹ Suzanne Zitser, assistant public defender, for the appellant (defendant).

C. Robert Satti, Jr., senior assistant state's attorney, with whom, on the brief, was Jonathan C. Benedict, state's attorney, for the appellee (state).

Opinion

MCDONALD, C. J.

After a jury trial, the defendant, Frantz Cator, was convicted of felony murder in violation of General Statutes § 53a-54c,² murder in violation of General Statutes § 53a-54a (a),³ conspiracy to commit murder in violation of General Statutes § 53a-48,⁴ kidnapping in the second degree in violation of General Statutes § 53a-94 (a),⁵ conspiracy to commit kidnapping in the second degree in violation of § 53a-48, and commission of a class A, B or C felony with a firearm in violation of General Statutes § 53-202k.⁶ The defendant initially was sentenced to a total of fifty-five years imprisonment, suspended after fifty years, with five years of probation to follow. The state moved to correct the sentence on the grounds that the imposition of probation was illegal and that certain of the defendant's sentences should be merged. The trial court granted the motion. The total effective sentence after the correction was fifty years incarceration without any period of probation. The defendant appealed from the trial court's judgment to the Appellate Court, and this court transferred the appeal to itself pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

On appeal, the defendant claims that the trial court improperly: (1) failed to determine whether there was a conflict in dual representation at the probable cause hearing; (2) admitted evidence of the defendant's prior, uncharged drug dealing; (3) failed to instruct the jury regarding the defendant's prior drug dealing; (4) modified the judgment of conviction after the defendant had begun serving his imposed prison term; (5) charged the jury that § 53-202k is a separate offense and encompasses accessory liability; (6) sentenced him to concurrent terms for two conspiracies and thereby violated the ban on double jeopardy; and (7) failed to provide him with formal notice that he had violated his probation stemming from a previous conviction. We disagree with all of the defendant's claims, with the exception of those regarding his sentence enhancement and his sentences for two conspiracies.⁷

At the defendant's trial, the state presented evidence that Desmond Hamilton, the defendant and the victim, Nathaniel Morris, all knew each other and had participated in the sale of drugs together. On May 10, 1996, on Laurel Court, a dead-end street in Bridgeport, the defendant and Hamilton had a discussion concerning both money that Hamilton owed the defendant and a gun of the defendant's that he had given to Hamilton approximately two weeks earlier. Also present during the conversation were the victim, and McWarren St. Julien. The defendant also questioned the victim about the whereabouts of the gun. During the conversation, the defendant became upset, began yelling and pulled out a Glock .40 handgun. Police officers subsequently came to the location of the conversation, but when they arrived the defendant was no longer there. Later that night, Hamilton called the defendant to attempt to explain that he did not know where the gun was located, and that he would never steal from the defendant. The defendant told Hamilton that he wanted him "to get everything straight."

On the following day, May 11, 1996, Hamilton again called the defendant, who told Hamilton that he was going to meet Hamilton at Hamilton's mother's house, and that the two men would go together to find the victim to learn what had happened to the gun. Later that evening, the defendant picked up Hamilton and they proceeded to 244 Olive Street in Bridgeport, where Hamilton, the victim, Tamara Addison and Terrance Addison lived. At 244 Olive Street, the defendant, the victim, St. Julien, Hamilton, Hamilton's mother, Tamara Addison and Terrance Addison were on the front porch of the house. There the defendant asked the victim about the whereabouts of his gun that had been the topic of the May 10 discussion. At or about the same time, Rodolphe St. Victor arrived at the house. The defendant and St. Julien then left the porch as St. Victor forcibly pulled the victim off the porch. As the defendant and St. Julien proceeded to enter a blue Oldsmobile parked in the driveway of the house, St. Victor grabbed the victim by the sleeve and said "Come on. [The defendant] wants to talk to you." St. Victor then forced the victim into the Oldsmobile, which the defendant then drove away. People at the house contacted the Bridgeport police out of concern for the victim's safety. The police came to the house and, after speaking with the people there, left in search of the blue Oldsmobile. Later that evening, the defendant, St. Julien and St. Victor returned to 244 Olive Street in the blue Oldsmobile. The police arrived shortly thereafter and arrested the three occupants of the vehicle and recovered a gun from it. The defendant, St. Julien and St. Victor then were taken to the Bridgeport police station. Thereafter, St. Victor and three Bridgeport police detectives left the Bridgeport police station and St. Victor directed the police to Suggetts Lane, Bridgeport, where the victim was found, conscious but unable to speak, with a gunshot wound to the back of his neck. The police summoned medical personnel, who took the victim to Bridgeport Hospital, where he died. Tests conducted on the gun recovered from the car revealed that the bullet that killed the victim had been fired from it. The murder weapon was a Mac-10 automatic pistol modified with a shell catcher to retain spent bullet casings and a handle to prevent shaking when the gun was fired rapidly. This weapon belonged to the defendant, and he often carried it with him.

Additional facts and procedural history will be provided as needed.

I

The defendant first claims that the trial court improperly failed to determine whether he knowingly and intelligently waived his sixth amendment right to conflict free representation. The defendant claims that he preserved his right to appeal this issue by filing a motion to dismiss. Alternatively, he seeks reversal of his conviction under the plain error doctrine and under the standard of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).⁸ We assume without deciding that the defendant properly preserved his claim in the trial court. We conclude, however, that there was no constitutional violation.⁹

The defendant's probable cause hearing was held on July 2, 1996. At this hearing, both the defendant and a codefendant, St. Julien, were represented by the same attorney, Joseph Mirsky.¹⁰ Before the probable cause hearing, Mirsky participated in a meeting in chambers with the trial court, Maiocco, J., at which time Mirsky made clear that both of his clients sought a probable cause hearing. At the outset of the hearing, Mirsky stated on the record: "I represent, yes, Your Honor, [the defendant] and [McWarren] [St.] Julien. And at this time I find no conflict of interest." The court then asked: "Sorry. Your client is what?" Mirsky replied: "I find no conflict of interest in representing these people at this time, sir." The hearing proceeded with Mirsky representing the defendant and St. Julien. Probable cause to try the defendant was found after the hearing.

On May 19, 1997, prior to the trial, Mirsky filed a motion to withdraw his appearance on behalf of the defendant on the ground that "there may or possibly could arise a conflict of interest...." The trial court, Ronan, J., granted the motion on May 28, 1997. Thereafter, the state filed a motion seeking to have the trial court consolidate the trials of the defendant, St. Julien and St. Victor. That motion was denied. The trial court, Ronan, J., stated that he was erring "on the side of caution" in its decision, ruling that it was probable that the defendant, St. Julien and St. Victor would have antagonistic defenses at trial. The defendant's new attorney then filed a motion to dismiss on July 17, 1997, at the start of trial, claiming that the defendant's right to effective assistance of counsel had been violated because the trial court at the probable cause hearing failed to canvass the defendant concerning his waiver of his right to conflict free representation. The trial court, Ford, J., reserved ruling on the motion until the conclusion of the state's case. The defendant subsequently filed another motion to dismiss the finding of probable cause based on his claim that he was denied the right to assistance of counsel at his probable cause hearing. The defendant's attorney did not present any arguments, evidence or testimony in support of the motion. The trial court denied this motion, finding that no conflict had existed at the probable cause hearing.

We first discuss the law governing the right to conflict free legal representation. "The sixth amendment to the United States constitution as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution, guarantee to a criminal defendant the right to effective assistance of counsel.... Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest.... [O]ne of the principal safeguards of this right is the rule announced by this court that [a trial] court must explore the possibility of conflict ... when it knows or reasonably should know of a conflict...." (Citations omitted; internal quotation marks omitted.) State v. Crespo, 246 Conn. 665, 685-86, 718 A.2d 925 (1998), cert....