State v. Lopez

• Decision Date: 09 December 2003
• Docket Number: (AC 22637)
• Citation: 835 A.2d 126,80 Conn. App. 386
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. LUIS FERNANDO LOPEZ

80 Conn. App. 386

835 A.2d 126

STATE OF CONNECTICUT v. LUIS FERNANDO LOPEZ

(AC 22637)

Appellate Court of Connecticut.

Argued February 10, 2003.

Officially released December 9, 2003.

Flynn, Bishop and West, Js.

William M. Bloss, for the appellant (defendant).

John A. East III, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Jason Germain, assistant state's attorney, for the appellee (state).

Opinion

WEST, J.

The defendant, Luis Fernando Lopez, appeals from the judgment of conviction, rendered after a jury trial, of three counts of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (2).¹ On appeal, the defendant claims that (1) the trial court should have conducted an inquiry on the record and in his presence into whether a conflict of interest existed between him and his attorney, (2) the court improperly failed to conclude that defense counsel was burdened by an actual conflict of interest, (3) the court should have granted him a new trial on the ground that the verdict was inconsistent, and (4) the prosecutor's comments during closing argument were improper and amounted to misconduct sufficient to warrant a new trial. We agree with the defendant's first claim and, accordingly, reverse the judgment of conviction and remand the case for a new trial. Because our resolution of that claim disposes of the defendant's appeal, we need not address the remaining claims.

The following facts are relevant to our disposition of the issues raised on appeal. In March, 1999, the victim² and her mother moved into the defendant's home. The defendant and the victim's mother were romantically involved at that time. The defendant and the victim's mother shared one bedroom while the victim slept in a separate bedroom. The defendant used the victim's bedroom as his business office and kept his computer there.

The victim alleged that soon after she moved into the defendant's home, he began molesting her by touching her inappropriately. The victim claimed that this behavior occurred frequently, and she provided descriptions of three such incidents. The first such alleged incident occurred in March, 1999, when the victim had gone to her bedroom, where the defendant was working on the computer, to ask for assistance with her homework. After the defendant declined to help her, the victim went to her bed to work on her assignment. She alleged that the defendant then went to the bed, pinned her arms over her head and rubbed her groin with his free hand. That alleged touching occurred over the victim's clothing. The second occurrence was in April, 1999. At that time, the defendant approached the victim while she was sitting on her bed. He allegedly kissed the victim on the face and again rubbed her groin over her clothing. The third alleged incident also occurred in April, 1999. The victim claimed that the defendant had approached her while she was standing in her bedroom and "touched [her] in the corner."

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 violation of General Statutes § 53a-72a (a)(1)(A), sexual assault in the third degree in violation of § 53a-72a (a)(1)(B) and risk of injury to a child in violation of § 53-21 (2). Following a jury trial, the defendant was acquitted of all of the sexual assault charges and convicted of each of the risk of injury charges. Additional facts will be set forth as necessary.

I

We first address the defendant's challenge to the adequacy of the court's inquiry into a possible conflict of interest between himself and defense counsel. We agree with the defendant that the inquiry was inadequate.

The following additional facts are relevant to the defendant's claim. 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 did so at the insistence of her mother and the defendant. She further testified that the defendant dictated the statement to her and that she was 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, attorney Christopher W. Boylan. The victim later testified that she had had a private conversation with Boylan, during which she told him that her handwritten statement was the truth. The victim's statement was then typed on stationery bearing Boylan's letterhead. The victim signed the typewritten statement, and Boylan acknowledged the statement as an officer of the Superior Court. At trial, she testified that she had been forced to make the statements, which were not true.

"Before reviewing the defendant's claim, we underscore that our review is of the actions of the trial court, not of the actions of defense counsel. Almost without exception, we have required that a claim of ineffective assistance of counsel . . . be raised by way of habeas corpus, rather than by direct appeal, because of the need for a full evidentiary record for such [a] claim.. . . On the rare occasions that we have addressed an ineffective assistance of counsel claim on direct appeal, we have limited our review to allegations that the defendant's sixth amendment rights had been jeopardized by the actions of the trial court, rather than by those of his counsel. . . . We have addressed such claims, moreover, only whe[n] the record of the trial court's allegedly improper action was adequate for review or the issue presented was a question of law, not one of fact requiring further evidentiary development. . . . Our analysis, therefore, is restricted to the actions of the trial court . . . ." (Internal quotation marks omitted.) State v. Drakeford, 261 Conn. 420, 428, 802 A.2d 844 (2002).

"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 [the] effective assistance of counsel. . . . Where a constitutional right to counsel exists . . . there is a correlative right to representation that is free from conflicts of interest." (Internal quotation marks omitted.) State v. Cator, 256 Conn. 785, 793, 781 A.2d 285 (2001), quoting State v. Crespo, 246 Conn. 665, 685, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999). "To safeguard a criminal defendant's right to the effective assistance of counsel, a trial court has an affirmative obligation to explore the possibility of conflict when such conflict is brought to the attention of the trial [court] in a timely manner. See Holloway v. Arkansas, [435 U.S. 475, 485-86, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978)]; Festo v. Luckart, [191 Conn. 622, 627, 469 A.2d 1181 (1983)]." (Internal quotation marks omitted.) State v. Vega, 259 Conn. 374, 389, 788 A.2d 1221, cert. denied, 537 U.S. 836, 123 S. Ct. 152, 154 L. Ed. 2d 56 (2002). "To be meaningful, an inquiry must be thorough and searching." Festo v. Luckart, supra, 628.

"There are two circumstances under which a trial court has a duty to inquire with respect to a conflict of interest: (1) when there has been a timely conflict objection at trial . . . or (2) when the trial court knows or reasonably should know that a particular conflict exists . . . ." (Internal quotation marks omitted.) State v. Cator, supra, 256 Conn. 793-94; quoting State v. Crespo, supra, 246 Conn. 686. In discharging that duty, however, "the trial court must be able, and be freely permitted, to rely upon [defense] counsel's representation that the possibility of such a conflict does or does not exist. . . . The reliance in such an instance is upon the solemn representation of a fact made by [the] attorney as an officer of the court. . . . The course thereafter followed by the court in its inquiry depends upon the circumstances of the particular case." (Citations omitted; internal quotation marks omitted.) State v. Martin, 201 Conn. 74, 82, 513 A.2d 116 (1986).

The first mention of any alleged conflict of interest on the part of defense counsel is found in the defendant's motion for a new trial and for a judgment of acquittal, filed on June 11, 2001.³ In that motion, the defendant claimed that he "was deprived of representation of conflict-free counsel at the trial, in light [of] defense counsel [putting] himself in the position of being a material defense witness . . . ." In its memorandum of decision denying the defendant's motion, filed October 30, 2001, the court memorialized the events forming the basis of the present claim.⁴ The court recounted that "[t]he state informed the court, outside of the defendant's presence and off the record, that the defense counsel may intend to testify at trial. The trial judge in chambers asked defense counsel if he intended to testify and whether a new attorney should be obtained to represent the defendant. After consideration by defense counsel, he informed the judge that he did not intend to testify on behalf...