State v. Hazel, No. 27732.

• Decision Date: 04 March 2008
• Docket Number: No. 27732.
• Citation: 106 Conn.App. 213,941 A.2d 378
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Michael O. HAZEL.

941 A.2d 378

106 Conn.App. 213

STATE of Connecticut v. Michael O. HAZEL.

No. 27732.

Appellate Court of Connecticut.

Argued January 7, 2008.

Decided March 4, 2008.

Stephanie L. Evans, special public defender, for the appellant (defendant).

Melissa Patterson, special deputy assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Jason Germain, assistant state's attorney, for the appellee (state).

FLYNN, C.J., and DiPENTIMA and ROBINSON, Js.

ROBINSON, J.

The defendant, Michael O. Hazel,¹ appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-54a(a) and 53a-49(a)(2), assault in the first degree in violation of General Statutes § 53a-59(a)(1), conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-59(a)(1) and 53a-48(a), criminal possession of a firearm in violation of General Statutes § 53a-217(a)(1), carrying a pistol or revolver without a permit in violation of General Statutes § 29-35(a) and criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c(a)(1). On appeal, the defendant claims that (1) he was denied his constitutional right to be present at a critical stage of his prosecution and (2) his conviction of attempt to commit murder is legally inconsistent with his conviction of assault in the first degree and conspiracy to commit assault in the first degree. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 2 a.m. on July 6, 2003, the victim, David Rogers, and his brother, Delton Rogers, went to Horace's Market in Waterbury to purchase beer. The victim had a stick in his hand as he entered the store. Walter Williams² asked if the victim planned to hit him with the stick, which the victim denied. Williams, agitated with the victim, exited the store in a hostile mood. After obtaining the beer, the victim left the store and saw his brother, Williams and a third person, later identified as the defendant, conversing. The victim explained that he had not threatened Williams with the stick. The victim and his brother shook hands with the defendant, while Williams remained unreceptive to the conciliatory efforts. The defendant and Williams then departed.

After a period of time had elapsed, the victim and his brother were walking to the victim's automobile. A motor vehicle driven at a high rate of speed approached them. After it came to a stop, the victim observed Williams and the defendant exit from the vehicle. The victim warned his brother that "they might have guns" as Williams walked toward him. The defendant then pulled a pistol from his waistband and shot the victim several times in the stomach, legs, buttocks and arm.³ The victim heard Williams instruct the defendant also to shoot Delton Rogers, but the defendant focused his attack solely on the victim. The defendant and Williams then drove off. Delton Rogers transported the victim to a hospital.

The defendant subsequently was arrested, tried and convicted. The court sentenced him to a total effective term of twenty years incarceration and five years special parole. This appeal followed. Additional facts will be set forth where necessary.

I

The defendant first claims that he was denied his constitutional right to be present at a critical stage of his prosecution. Specifically, he argues that it was structural error⁴ for the court to conduct a hearing in chambers regarding a possible conflict of interest involving defense counsel without his presence. The state counters that the record is inadequate to review this claim. We agree with the state.

The following additional facts are necessary for our discussion. Prior to the empanelment of the jury and the evidentiary phase of the trial, the court, referring to a discussion that had taken place earlier in chambers, stated: "Okay. Counsel, just the matter that we spoke about earlier. The procedure today, first of all, we will speak to the jurors who potentially may have problems participating. . . . I will inquire of the individuals. I will ask counsel if they have any additional questions. I will then make a determination as to whether or not one or both of them would be able to participate on the jury panel. If we have a situation after the inquiry when we have only one alternate, we do have a panel upstairs. From that panel, we will select an additional alternate. Each party will have one additional challenge to be used, if we need to select that additional alternate. Once that alternate is selected, we will then immediately proceed to the evidentiary portion of the matter here. I have indicated to counsel, based on the stipulation that was presented to the court, that when the panel is sworn after completion of the state's evidence and as part of the jury charge, I will read an explanation of the stipulation, with respect to the admission by the defendant by the parties that he has been previously convicted of a felony, to indicate to the panel that that admission, that stipulation is admitted solely for the purpose to prove the element—the specific element of the two crimes that involve the prior felony record. . . . [Defense Counsel]. There is one other matter on the record related to one of the witnesses that you need to comment on; is that correct?"

Counsel for the defendant, attorney Michael P. Gannon, then stated: "Yes, Your Honor. For record, the victim in this case . . . I don't know the exact date, but it was a while ago, came into my law office and asked to receive a power of attorney. He asked for the form that we have [for a] power of attorney. I gave him or my office gave him—it might have been me— gave him a form of power of attorney. We do not represent him, we just gave him a power of attorney form to fill out on his own. I told that to my client, and my client has no problem with me representing him. I don't think there is a conflict of interest in this case. Okay, Mr. Hazel, sir, do you understand the question here?" The defendant responded in the affirmative. The court then inquired if the defendant had "any problem with attorney Gannon continuing his representation?" The defendant answered in the negative. The court asked if the defendant believed that there was any type of conflict, and the defendant stated, "[n]o sir."

The court inquired if the prosecutor had any comment regarding this matter. The prosecutor responded: "No, Your Honor. When I found this out from the victim, brought it to the attention of Mr. Gannon; that's when I brought it to the attention of Your. Honor. [But in] the interest of caution, [the victim] did not say he actually obtained or hired Mr. Gannon, and it was the same situation. He went there for a power of attorney. The conversation, I believe afterward, when he picked up the form, was, is, you are representing the defendant in this case, the person who shot me; that was the end of the conversation. But in the interest of caution, we brought it before Your Honor." The court then asked if there was anything else that needed to be placed on the record, and defense counsel responded in the negative.

The defendant concedes that this claim is unpreserved and seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). "Under Golding, a defendant may prevail on unpreserved claims only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. . . . The first two [prongs of Golding] involve a determination of whether the claim is reviewable; the second two . . . involve a determination of whether the defendant may prevail." (Citation omitted; internal quotation marks omitted.) State v. Peeler, 271 Conn. 338, 359-60, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S.Ct. 94, 163 L.Ed.2d 110 (2005). "In the absence of any one of the four Golding conditions, the defendant's claim will fail. . . . The appellate tribunal is free, therefore, to respond to the defendant's claim by focusing on whichever condition is most relevant in the particular circumstances." (Citation omitted; internal quotation marks omitted.) State v. Kirk R., 271 Conn. 499, 506 n. 12, 857 A.2d 908 (2004).

We now set forth the legal principles germane to the defendant's claim. "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 both guarantee a defendant the right to effective assistance of counsel in a criminal proceeding.... 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 This right applies not only to the trial itself, but to any critical stage of a criminal proceeding." (Citations omitted; internal quotation marks omitted.) State v. Cruz, 41 Conn.App. 809, 811, 678 A.2d 506, cert. denied, 239 Conn. 908, 682 A.2d 1008 (1996); see also State v. Rodriguez, 93 Conn.App. 739, 745, 890 A.2d 591, appeal dismissed, 281 Conn. 817, 917 A.2d 959 (2007). Simply put, "[a] defendant's right to be present . . . is scarcely less important to the accused than the right of trial itself." (Internal quotation marks omitted.) State v. Jones, 281 Conn. 613, 636, 916 A.2d 17, cert. denied, ___ U.S. ___, 128 S.Ct. 164, 169 L.Ed.2d 112 (2007).

The defendant argues that the conversation that occurred in chambers constituted a critical stage of the proceedings. In State v. Sam, ...