State v. Rodriguez

• Decision Date: 14 February 2006
• Docket Number: No. 25393.,25393.
• Citation: 93 Conn.App. 739,890 A.2d 591
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Carlos RODRIGUEZ, Sr.

890 A.2d 591

93 Conn.App. 739

STATE of Connecticut v. Carlos RODRIGUEZ, Sr.

No. 25393.

Appellate Court of Connecticut.

Argued October 17, 2005.

Decided February 14, 2006.

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Charles F. Willson, special public defender, for the appellant (defendant).

Erik T. Lohr, deputy assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Craig P. Nowak, assistant state's attorney, for the appellee (state).

GRUENDEL, HARPER and DUPONT, Js.

HARPER, J.

The defendant, Carlos Rodriguez, Sr., appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with the intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278(b) and possession of narcotics with the intent to sell within 1500 feet of a public housing project in violation of General Statutes § 21a-278a(b).¹ On appeal, the defendant claims that (1) the trial court improperly denied defense counsel's motion to withdraw, thereby denying the defendant effective assistance of counsel, (2) there was insufficient evidence to support a conviction of possession of narcotics and (3) the court improperly instructed the jury regarding nonexclusive possession. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On July 24, 2002, William Bailey, a sergeant with the Bridgeport police department, was conducting undercover surveillance of the P.T. Barnum housing project in Bridgeport. Bailey observed two men conversing and surveying the area. He then parked his unmarked police vehicle across from building number five to continue watching the two men, who were later identified as the defendant and Robert Kelly. At approximately 12:15 p.m., Bailey observed the defendant and Kelly exchange paper currency. The defendant then went up a set of stairs leading to two second floor apartments in building number five. The defendant spoke to another man and then entered apartment 206. The defendant came out of apartment 206 and dropped a small item down to Kelly. As Kelly was walking by Bailey's unmarked car, Bailey observed Kelly holding a fold.² Still in his car, Bailey followed Kelly out of the housing project to the Evergreen Apartments, an abandoned housing project approximately two blocks away, and called for backup.

Ernest Garcia, an officer with the Bridgeport police department narcotics and vice division, arrived in uniform and in a marked police vehicle. The two officers found Kelly in a basement of one of the abandoned buildings as he was about to use the drugs that were in the fold.³ Garcia arrested Kelly. Bailey returned to the P.T. Barnum housing project to continue observing the defendant.

Bailey resumed his surveillance from the same parking space across from building number five. At that time, he observed another individual, who was later identified as the defendant's son, riding a bicycle toward the defendant. The defendant's son handed the defendant a small plastic bag with white folds in it. As the defendant went back up the stairs toward apartments 206 and 208, his son looked intently at Bailey's car. Bailey became concerned that his undercover status had been compromised and, as a result, again called for reinforcement.

Garcia arrived with several other officers from the Bridgeport police department. After seeing the marked police vehicles, the defendant and a man later identified as Sereno Almodovar, who had been standing on a landing with the defendant ran into apartment 208.⁴ As Garcia reached the top of the stairs, the defendant emerged from apartment 208. Garcia immediately placed the defendant under arrest.

At that time, a woman came down from the second floor of the apartment. Garcia informed her that the defendant had entered the apartment and that he may have hidden narcotics or a weapon in the apartment. Garcia then searched the areas of the apartment that were closest to the front door. He recovered a clear plastic bag containing nine white glassine envelopes near the garbage receptacle in the kitchen. Later testing revealed that the glassine envelopes contained heroin. Additional facts will be set forth as necessary.

I

The defendant first claims that the court abused its discretion in denying defense counsel's motion to withdraw, thus depriving the defendant of effective assistance of counsel as guaranteed by the sixth amendment to the United States constitution⁵ and article first, § 8, of the Connecticut constitution.⁶ We disagree.⁷

The following additional facts are relevant to our resolution of that issue. On March 31, 2003, the day before jury selection was to begin, defense counsel filed a motion to withdraw.⁸ The court heard argument on the motion on April 1, 2003. Defense counsel claimed that the basis of the motion to withdraw was the defendant's assertion that he had filed a grievance against counsel the previous week. Counsel stated that neither he nor the defendant had a copy of the grievance. He further noted that he had been unable to obtain a copy of the grievance from the statewide grievance committee. The defendant then addressed the court. As the defendant began to address the basis of his grievance—allegedly his dissatisfaction with the way counsel had handled plea negotiations—the court interrupted him and stated that the terms of pretrial discussions were not an appropriate subject for discussion with the court. The court then denied counsel's motion.

Later that day, after jury selection had commenced, the court revisited defense counsel's motion to withdraw. The court noted that the motion had been denied without prejudice and asked counsel whether he had any additional argument to make in support of the motion. Counsel indicated at that time that he did not have additional grounds to support the motion. The court informed counsel that if he wanted to renew the motion at the end of that day, or before the jury entered the next day, the court would again entertain the motion. The motion was never renewed, and trial commenced the next morning.

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. As this court previously has stated: "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. Lopez, 80 Conn.App. 386, 390, 835 A.2d 126 (2003), aff'd, 271 Conn. 724, 859 A.2d 898 (2004).

Our review of the court's denial of defense counsel's motion to withdraw rests on a determination of whether the court abused its discretion. Morgan v. Commissioner of Correction, 87 Conn.App. 126, 136, 866 A.2d 649 (2005). "We accord wide discretion to a trial court's ruling on a motion for disqualification of counsel for conflict of interest.... In determining whether the trial court abused its discretion, we indulge every reasonable presumption in favor of the correctness of the court's decision .... The ultimate issue is whether the ... court could reasonably have reached the conclusion that it did." (Citation omitted; internal quotation marks omitted.) Id.

"The sixth amendment to the United States constitution as applied to the states through the fourteenth amendment... guarantee[s] 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.... 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." (Citations omitted; internal quotation marks omitted.) State v. Lopez, supra, 80 Conn.App. at 391, 835 A.2d 126. "The extent of the inquiry, however, lies within the discretion of the trial court.... A trial court does not abuse its discretion by failing to make further inquiry where the defendant has already had an adequate opportunity to inform the trial court of his complaints." (Internal quotation marks omitted.) State v. Dews, 87 Conn.App. 63, 83, 864 A.2d 59, cert. denied, 274 Conn. 901, 876 A.2d 13 (2005).

In the present case, the transcript reveals that the court explored the possibility of a conflict of interest when it received defense counsel's motion to withdraw. After receiving the motion, the court heard argument from counsel. Counsel explained that the defendant allegedly had filed a grievance against him as a result of the defendant's dissatisfaction with the way counsel had worked with the state during pretrial negotiations.⁹ Counsel argued that he foresaw a potential conflict of interest as a result of both having to represent the defendant in his criminal trial and to defend against the defendant's grievance before the statewide grievance committee. After hearing from counsel, the court allowed the defendant to make a statement regarding the motion. The defendant complained that counsel had not been responsive to certain requests that he had made¹⁰ and...