State v. Parrott, (SC 16756)

• Decision Date: 07 January 2003
• Docket Number: (SC 16756)
• Citation: 262 Conn. 276,811 A.2d 705
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. MICHAEL PARROTT

262 Conn. 276

811 A.2d 705

STATE OF CONNECTICUT v. MICHAEL PARROTT

(SC 16756)

Supreme Court of Connecticut.

Argued September 26, 2002.

Officially released January 7, 2003.

Borden, Norcott, Katz, Palmer and Vertefeuille, Js. David V. DeRosa, special public defender, for the appellant (defendant).

Toni M. Smith-Rosario, assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Anne F. Mahoney, assistant state's attorney, for the appellee (state).

Opinion

VERTEFEUILLE, J.

The defendant, Michael Parrott, appeals from the judgment of conviction, rendered after a jury trial, of one count each of the crimes of assault in the first degree in violation of General Statutes § 53a-59 (a) (5),¹ burglary in the first degree in violation of General Statutes § 53a-101 (a) (1),² attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49³ and 53a-134 (a) (2),⁴ and criminal possession of a pistol or revolver in violation of General Statutes (Rev. to 1997) § 53a-217c.⁵ On appeal, the defendant claims that: (1) the trial court violated his right to the effective assistance of counsel as guaranteed by the sixth amendment to the United States constitution by failing to inquire into a conflict of interest between the defendant and his trial counsel when the trial court knew or should have known about the conflict; and (2) the comment by the state's attorney on the defendant's decision not to testify violated the defendant's rights under the fifth amendment to the United States constitution and provisions of General Statutes § 54-84 (a). We disagree with the defendant's claims, and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of July 2, 1998, Fred Anderson, the victim, drove his car and met up with Juan Maldonado. The two men proceeded to drive around for awhile and sell drugs together. A short time thereafter, Anderson saw the defendant, who was known to Anderson as "Mike" or "O.G.," walking on the street. The defendant subsequently got into Anderson's car. Stopping only once briefly at the house of the defendant's girlfriend, Anderson, Maldonado and the defendant then drove around together until 2 or 3 o'clock in the morning. Anderson then dropped the defendant and Maldonado off at their respective houses before returning to his house in Hartford, where he resided with his girlfriend, Donnette Williamson, and Williamson's three children.

After having been dropped off, Maldonado went to bed, but was awakened about one-half hour later by the defendant, who was knocking loudly on the windows and doors of his home. Maldonado looked outside and saw that the defendant had returned in a white car driven by a third person known to Maldonado only as "Fat Boy." Maldonado went to the door and the defendant told Maldonado to come out for a ride. Maldonado left his house and got into the car with the defendant and "Fat Boy."

"Fat Boy" drove the car to Plainfield Street, one street behind the street where Anderson resided, and parked the car. Before exiting the car, the defendant produced a handgun and told Maldonado that he and "Fat Boy" planned to rob Anderson. The defendant and "Fat Boy" put on black masks and the three men got out of the car. After leaving the vehicle, they jumped a fence onto Anderson's property and approached the front door. The defendant pointed the gun at Maldonado and insisted that Maldonado knock on the front door and ring the doorbell while the defendant and "Fat Boy" crouched on either side of the door of Anderson's house. At this time, Maldonado saw that "Fat Boy" also was armed.

Williamson was awakened by the doorbell, went to the door and asked who was there. Maldonado told Williamson through the closed door that he was stranded and asked to be let in. Williamson did not recognize Maldonado's voice and went to get Anderson.

Anderson and Williamson then went to the front of the house and Anderson looked out of a front window. He had a brief verbal exchange with Maldonado, whom he recognized, and also noted that there was an armed man crouching behind Maldonado. Maldonado asked repeatedly to be let into Anderson's home. Anderson told Maldonado to leave immediately and instructed Williamson to call the police. Anderson then pressed the "panic switch" of his burglar alarm system. At this moment, the defendant stood up and fired gunshots through the front door. The defendant then entered Anderson's house.

One bullet fired from the defendant's gun struck Anderson in his left arm and another bullet traveled through the door of the bedroom where Williamson's young daughters were sleeping. Anderson retreated into the house and the defendant followed him, through several rooms and into the bedroom he shared with Williamson, where the defendant shot at Anderson again. Anderson retreated to an open closet, but was caught by the defendant. The two men struggled, and Anderson grabbed the defendant's arms in order to avoid being shot at again. While they struggled, the defendant repeatedly demanded to know where Anderson kept his money.

Anderson recognized the voice and body build of his assailant as belonging to the defendant, whom Anderson had known for approximately ten years, and with whom he earlier had passed the evening. Anderson also recognized the defendant's clothes as being those worn by the armed person who had crouched behind Maldonado at the front door. The two men continued to struggle and the defendant repeatedly demanded that Anderson let go of the gun. When Anderson's arm finally gave out, he fell to the floor, at which time the defendant shot him in the hip. The defendant then fled from Anderson's house. The police arrived shortly thereafter and, Anderson told an officer on the scene that it was the defendant who had shot him.

The defendant subsequently was arrested and charged with the offenses for which he was later convicted.⁶ After his conviction, the defendant appealed from the judgment of the trial court to the Appellate Court. We transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

I

The defendant first claims that the trial court violated his sixth amendment right to the effective assistance of counsel by failing to inquire into the decision by the defendant's trial counsel (defense counsel) to sit a distance of eight to ten feet away from the defendant during voir dire. The defendant maintains that defense counsel's positioning violated the attorney's duty of loyalty to the defendant and represented a potential conflict of interest into which the trial court had a duty to inquire. The defendant further urges that this deprivation of his right to the effective assistance of counsel was such that an automatic reversal of his conviction is warranted under federal and Connecticut case law. In response, the state argues that defense counsel's distance from the defendant during voir dire represented only a potential conflict of interest⁷ and that the trial court's inquiry into the conflict was wholly adequate. Pursuant to the holding of the United States Supreme Court in the recent case of Mickens v. Taylor, 535 U.S. 162, 171, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002), the state also asserts that, because the defendant has not shown that the "conflict" between defense counsel and the defendant resulted in any deficiency in counsel's performance during voir dire or at trial, the defendant's first claim must fail. We agree with the state.

The following additional facts are relevant to our resolution of this issue. On the third day of voir dire, after a brief recess was taken so that the defendant could change out of prison garb and into "street clothes,"⁸ a strain between the defendant and defense counsel became apparent. This tension was evidenced by the fact that, rather than taking a seat next to the defendant at counsel table, defense counsel sat approximately eight to ten feet away from his client. Later, outside the presence of any venireperson, the defendant informed the court of his dissatisfaction with this arrangement.⁹ Defense counsel stated that he had chosen to sit some distance from his client for "security purposes." He declined to elaborate further on what had transpired between them explaining that he was concerned that further detail might prejudice the court against the defendant. Defense counsel assured the trial court, however, that he would be able to communicate with his client throughout the voir dire.¹⁰ The defendant responded that he was not as concerned about being able to communicate with his attorney as he was about the appearance of their seating arrangement, stating to the court: "It's about how it looks to the jury if he's supposed to represent me. How's that look if he doesn't want to sit next to me but he wants to be my lawyer and take my money?"

The trial court expressed its concern about the situation and acknowledged that conflicts often develop between clients and their counsel during the emotionally charged process of a trial. The trial court suggested that defense counsel take a seat at the table beside his client.¹¹ Defense counsel declined to reposition himself, and indicated to the trial court that he was not "looking to be released from representation in this case . . . ." Defense counsel further stated, however, that he wanted to sit with "two sheriffs in between us" and that they could "communicate in writing or behind glass." The trial court then asked the defendant if he wanted defense counsel to continue representing him. The defendant reiterated his concern about his attorney's location but stated that he wanted to retain him as counsel. A brief discussion about the conflict ensued.¹² Defense counsel assured the court that he "absolutely" could represent the defendant adequately and the trial court subsequently decided to "see how...