State v. Lopez

• Citation: 271 Conn. 724,859 A.2d 898
• Decision Date: 09 November 2004
• Docket Number: (SC 17123).
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. LUIS FERNANDO LOPEZ.

271 Conn. 724

859 A.2d 898

STATE OF CONNECTICUT v. LUIS FERNANDO LOPEZ.

(SC 17123).

Supreme Court of Connecticut.

Argued September 10, 2004.

Officially released November 9, 2004.

Sullivan, C. J., and Borden, Norcott, Katz and Zarella, Js.

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

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

Opinion

KATZ, J.

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 Statutes (Rev. to 1999) § 53-21 (2).¹ Following the decision of the Appellate Court reversing the judgment of conviction and remanding the case for a new trial; State v. Lopez, 80 Conn. App. 386, 835 A.2d 126 (2003); we granted the state's petition for certification to appeal, limited to the following issue: "Did the Appellate Court properly conclude that the trial court's inquiry into a possible conflict of interest between the defendant and defense counsel was inadequate and, if so, did the Appellate Court properly conclude that the defendant was entitled to a reversal of his conviction in the absence of a specific showing of harm?" State v. Lopez, 267 Conn. 912, 840 A.2d 1174 (2004). We conclude that the trial court's denial of the defendant's constitutional right to be present during the inquiry in question constituted a structural error warranting the automatic reversal of his conviction without a specific showing of harm or prejudice. Accordingly, we affirm the judgment of the Appellate Court.

The underlying facts and procedural history, as set forth in the Appellate Court's opinion, are as follows. "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),³ sexual assault in the third degree in violation of § 53a-72a (a) (1) (B),⁴ 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." State v. Lopez, supra, 80 Conn. App. 388-89.

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, attorney Christopher W. Boylan. The victim later testified that she had had a private conversation with Boylan, during which she [had] 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." Id., 389-90.

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 the [Boylan] may intend to testify at trial.⁵ The trial judge, in chambers, asked [Boylan] if he intended to testify and whether a new attorney should be obtained to represent the defendant. After consideration by [Boylan], he informed the judge that he did not intend to testify on behalf of the defendant."

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 alia:⁶ (1) the trial court should have conducted an inquiry on the record and in the defendant's presence into whether a conflict of interest had existed between him and Boylan; and (2) the trial court improperly failed to conclude that Boylan had been burdened by an actual conflict of interest.⁷

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 conflict. Id., 393-94. Finally, the Appellate Court was persuaded that the circumstances of the case clearly had presented an actual conflict of interest that gave rise to a presumption of prejudice requiring reversal of the defendant's conviction. Id., 394. Because this conclusion was dispositive of the appeal, it did not reach the defendant's remaining claims. This certified appeal followed.

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...