Date: 03-16-2016

Case Style: STATE OF CONNECTICUT v. RUSSELL PEELER

Case Number: SC 19282

Judge: Richard N. Palmer

Court: Connecticut Supreme Court

Plaintiff's Attorney: Emily D. Trudeau, John C. Smriga, Joseph Corradino

Defendant's Attorney: Lisa J. Steele

Description: This appeal requires us to consider the extent to which a criminal defendant is entitled to representation by a particular attorney at a new trial ordered in accordance with United States v. GonzalezLopez, 548 U.S. 140, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006), as the remedy for the violation of his right to counsel of choice under the sixth amendment to the United States constitution, when that defendant has become indigent and cannot afford to retain that attorney’s services for the new trial. The defendant, Russell Peeler, appeals1 from the judgment of the trial court in two consolidated cases, rendered after a jury trial conductedonremandfromthiscourt’sdecisioninState v. Peeler, 265 Conn. 460, 828 A.2d 1216 (2003), cert. denied, 541 U.S. 1029, 124 S. Ct. 2094, 158 L. Ed. 2d 710 (2004) (Peeler I), convicting him of attempted murder inviolationofGeneralStatutes§ 53a-49(a)andGeneral Statutes (Rev. to 1997) § 53a-54a (a), two counts of risk ofinjurytoachildinviolationofGeneralStatutes(Rev. to 1997) § 53-21 (1), and murder in violation of General Statutes (Rev. to 1997) § 53a-54a (a). On appeal, the defendant claims that the trial court improperly failed toeffectuatetheremedyorderedbythiscourtinPeelerI fortheimproperdisqualificationofhischosenattorney, Gary Mastronardi, when it denied his motion to require thestatetopayMastronardi’sprivatefeerates,because he had become indigent and Mastronardi would not representhimatthenewtrialattheratepaidtoassigned counsel by the Division of Public Defender Services (division).2 Wedisagree and, accordingly, weaffirm the judgment of the trial court. The record reveals the following relevant facts and procedural history regarding the two consolidated cases underlying the present appeal. ‘‘In the first case, the state alleged that, on September 2, 1997, in the vicinity of 500 Lindley Street in Bridgeport, the defendant had attempted to murder Rudolph Snead, Jr., his partner in a crack cocaine operation, by shooting at [him] while in his car, and that the defendant thereby had committed risk of injury to the two minor children, Leroy Brown, Jr., and Tyree Snead, both seven years of age, who were in the backseat of [Rudolph] Snead’s car during the shooting. All three of the victims were identified by name inthe police arrest warrant affidavit dated September 11, 1997, and in the second substitute information filed January 20, 1998. In the second case, thestateallegedthatonMay29,1998,whilehewasfree onbondfollowinghisarrestforthedrive-byshootingin the first case, the defendant, who had covered his face to conceal his identity, murdered [Rudolph] Snead at the Boston Avenue Barbershop in Bridgeport. The defendant was represented initially by Frank Riccio in connection with the first case and, thereafter, by . . . Mastronardi, whofiled hisappearance onJuly 23,1998,
in connection with both cases. ‘‘Following the consolidation of the two cases, on August11,1998,thestatefiledamotionforaprotective order to preclude disclosure to the defense of the identity of certain witnesses, including the two minor victims, Brown and Tyree Snead. At the hearing on that motion, heldon October 6,1998, the trialcourt, Ronan, J., provided Mastronardi with two alternatives: (1) the court would order disclosure of the names and addresses of the state’s witnesses to Mastronardi, but would prohibit him from disclosing that information to the defendant; or (2) the court would grant the defendant’s discovery motion with the names and addresses redacted. The court assured Mastronardi that, prior to trial, he would be able to share the information with the defendant to prepare his defense. Mastronardi advised the court that he knew that there were two minors involved in the drive-by shooting and that he and the defendant already knew their names. On December 9, 1998, the court nevertheless issued an order precluding Mastronardi from disclosing to the defendant the names and addresses of any witnesses whohadgivenstatementstothepolice.Pursuanttothat court order, on or about December 23, 1998, [S]enior [A]ssistant [S]tate’s [A]ttorney C. Robert Satti, Jr., providedMastronardiwiththestatementbyBrownregarding the drive-by shooting and filed with the clerk of the court notice of service of disclosure with an attached supplementaldisclosurelisting,interalia,thestatement given by Brown. ‘‘Tragically, on January 7, 1999, Brown and his mother, Karen Clarke, were brutally murdered in their apartment on Earl Avenue in Bridgeport, where they recently had moved. The state thereafter charged the defendant and his brother, Adrian Peeler, in a third case with those murders, and John Walkley filed an appearance as a special public defender for the defendantinconnectionwiththeBrownandClarkemurders.3 ‘‘On June 9, 1999, the state moved to disqualify Mastronardi from representing the defendant in the two casesinvolving[Rudolph]Sneadonthegroundthatthe state intended to call Mastronardi as a witness in the defendant’scapitalfelonycaseforthemurderofBrown and Clarke.’’ (Footnote altered.) Id., 463–65. After a hearing, the trial court, Thim, J., granted the state’s motiontodisqualifyMastronardi,concludingthat‘‘ ‘one of the core issues in the case is . . . [what] knowledge [the defendant] had about Brown’s potential testimony and when and how he obtained that knowledge.’ ’’ Id., 467. Mastronardi then returned the unearned balance of his retainer to the defendant, and the trial court then appointedAttorneyRobertSullivanasassignedcounsel to represent the defendant. Id. ‘‘Following a jury trial, the defendant was convicted of all four charges in connection with [two] cases
[involving Rudolph Snead] and sentenced to a total effective sentence of 105 years incarceration after the sentence enhancement pursuant to General Statutes § 53-202k was imposed.’’4 Id., 468. The defendant appealed from the judgment of conviction directly to thiscourt,claimingthat,‘‘intheabsenceofacompelling need for Mastronardi’s testimony at the trial involving theBrownandClarkehomicides,thetrialcourtimproperlygrantedthestate’smotiontodisqualifyMastronardi inthe[two]cases[involvingRudolphSnead].Thedefendant contend[ed] that he was denied his constitutional right to counsel of choice under the state and federal constitutions because the state did not demonstrate a compelling need for Mastronardi’s testimony.’’ Id., 469; see also Wheat v. United States, 486 U.S. 153, 164, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988); Ullmann v. State, 230 Conn. 698, 716–17, 647 A.2d 324 (1994). This court agreed with the defendant and reversed the judgment of conviction, concluding that the improper disqualification of Mastronardi was structural error requiring a new trial. Peeler I, supra, 265 Conn. 475, 478. On remand, the trial court, Devlin, J., convened a status conference to determine which attorney would represent the defendant at his new trial, observing that this case was now the oldest matter pending on the judicial district’s docket. Sullivan again entered an appearance on behalf of the defendant as assigned counsel, and appeared with him at that conference, at which Mastronardi also was present. The trial court stated that the defendant now appeared indigent, insofar as the division was representing him, either directly or through assigned counsel, in other pending appeals and habeas corpus matters. In response to the court’s inquiry,Mastronardistatedthathedidnot‘‘believethat [he] would be able’’ to represent the defendant, explaining that the defendant had made ‘‘substantial paymentstowardthetrial,’’andthat‘‘aftermydisqualification, I returned all of that money to designated members of his family. So, therefore . . . I’m not holding any trial fee at all anymore, so I would not be in a positionatthistimetorepresent[thedefendant].’’5Sullivanadvisedthecourtthatthedefendantnolongercould afford to pay Mastronardi’s private rates because of his indigency, and that Sullivan did not expect the division to be willing to pay for Mastronardi to represent the defendant at those rates. Mastronardi, in turn, stated that he would not represent the defendant at the division’s assigned counsel fee rates. Sullivan then stated that the defendant intended to file a motion asking the court to order the state to fund Mastronardi’s private fee, or, alternatively, to dismiss the charges against the defendant. Thedefendantsubsequentlyfiledthatmotion,asking the court either to require the state to provide funding for his counsel of choice, or, alternatively, to dismiss the charges against him.6 At a hearing on that motion,
thepartiesestablishedthatthedefendantwasnowindigent and that the division would not pay Mastronardi’s private fee rates for the defendant’s representation.7 The trial court clarified its understanding that Mastronardiwouldnotacceptassignedcounselratestorepresent the defendant, and stated that it would not compel him to do so. The trial court then disagreed with the defendant’s claim that he was entitled to have the state pay for Mastronardi to represent him at his retrial, rejecting his argument that not doing so would render the constitutional remedy in this court’s decision in Peeler I ‘‘meaningless’’ because it would mean that this court ‘‘is basically sending [the case] back to have another trial with another counsel not of his choice.’’8 The trial court denied the defendant’s motion, relying on Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 109 S. Ct. 2646, 105 L. Ed. 2d 528 (1989), to concludethathisargument‘‘focus[ed]inononephrase in [Peeler I, supra, 265 Conn. 476] to the exclusion of really a much broader context supported by a lot of law, around the country, that the right to . . . private counselmeanstherighttoprivatelycompensatedcounsel. That’s our history in America. . . . [U]ntil we had publicdefenders,that’showpeoplegot[attorneys],they paid for them. And so I do not see the fact that [the defendant’s] economic circumstances have now changed to the point where he’s unable to afford counsel to be a justification for either dismissing—basically not putting him to trial on . . . this case.’’ The trial courtfurtherdeniedthedefendant’srequestfor‘‘public funding of . . . Mastronardi’s fee,’’ concluding that Peeler I did not require it. Accordingly, the trial court scheduledthematterforatrialatwhichSullivanwould represent the defendant.9 Subsequently, the case was tried to a jury, which returned a verdict finding the defendant guilty on all counts. The trial court, Kavanewsky, J., then rendered a judgment of conviction in accordance with the jury’s verdict,andsentencedthedefendanttoatotaleffective sentence of 105 years imprisonment to be served consecutive to any sentence that the defendant was currently serving. This direct appeal followed. On appeal, the defendant argues that the trial court improperly denied his motion to require the state to payMastronardi’sfeestorepresenthimathisnewtrial, orinthealternative,todismissthechargesagainsthim. Hecontendsthatto‘‘deprivehimagainofMastronardi’s services at retrial violates the spirit and the letter’’ of Peeler I, asking rhetorically: ‘‘What would be the point of remanding the case for a new trial because of an erroneous deprivation of his choice of counsel if [the defendant] would be represented in that trial by the same attorney who replaced his choice of counsel in the first trial?’’ Although the defendant acknowledges that,‘‘if[he]hadneverbeenabletoaffordprivatecounsel, he could not reject the public defender’s services
and insist that public funds be used to retain a specific private attorney’’; see, e.g., Caplin & Drysdale, Chartered v. United States, supra, 491 U.S. 624–25; Wheat v. United States, supra, 486 U.S. 159; he nevertheless arguesthattheorderofthiscourtinPeeler Iremanding thecaseforanewtrialbecauseoftheimproperdisqualification of Mastronardi, consistent with United States v. Gonzalez-Lopez, supra, 548 U.S. 150, renders this case distinguishable from that of a ‘‘typical . . . indigent defendant dissatisfied with his assigned attorney.’’ In response, the state contends that the defendant’s requested remedy in this appeal, namely, a third trial at which Mastronardi would be paid to represent him, ‘‘goes well beyond the relief ordered’’ in Peeler I, and that the sole remedy for the violation of a criminal defendant’s right to counsel of choice is a new trial, with the defendant’s financial resources at that point dictating the breadth of his choice of counsel. To this end, the state emphasizes that the court’s order of a new trial in Peeler I already afforded the defendant a ‘‘significant benefit’’ in the form of a ‘‘mulligan.’’ Describing the right to counsel of choice as a ‘‘legal concept, not an individual attorney who could be dead, disbarred, retired, or simply unwilling to take on the defendant’s case,’’ the state posits that it would be ‘‘impossible to go further and guarantee the defendant [that] he would be represented by . . . Mastronardi at the retrial.’’ Noting the lack of directly on point authority, the state relies on United States v. Childress, 58 F.3d 693 (D.C. Cir. 1995) (per curiam), cert. denied, 516 U.S. 1098, 116 S. Ct. 825, 133 L. Ed. 2d 768 (1996), for the proposition that the trial court has no duty to do anythingonremandbeyondinquireaboutwhether‘‘the previouslydisqualifiedcounseliswillingtoresumerepresentation at a rate the defendant can afford, and, if the disqualified counsel is unwilling to do so, there is noerrorwhenthetrialcourtassignsadifferentattorney and proceeds to trial.’’ We agree with the state, and concludethatthedefendantwasnotentitledtoanything more than a new trial on remand, with his options for legal representation determined by the conditions existing at the time of his new trial, including whether Mastronardi was willing and able to represent him at a mutually agreeable fee. We begin with the applicable standard of review. Whetheranindigentdefendantisentitledtotheservices of a particular attorney at a new trial ordered by an appellate court, as a remedy for the violation of his righttocounselofchoice,isaquestionofconstitutional law over which our review is plenary. See, e.g., H. P. T. v. Commissioner of Correction, 310 Conn. 606, 612– 13, 79 A.3d 54 (2013). Ouranalysisisguidedbythefollowinggeneralprinciples concerning the right to counsel of choice under the sixth amendment to the United States constitution,
which provides that, ‘‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the [a]ssistanceof[c]ounselforhis[defense].Wehavepreviously held that an element of this right is the right of a defendantwhodoesnotrequireappointedcounseltochoose who will represent him. . . . [T]he [s]ixth [a]mendmentguaranteesadefendanttherighttoberepresented byanotherwisequalifiedattorneywhomthatdefendant can afford to hire, or who is willing to represent the defendanteventhoughheiswithoutfunds.’’10 (Citations omitted; internal quotation marks omitted.) United States v. Gonzalez-Lopez, supra, 548 U.S. 144, quoting Caplin & Drysdale, Chartered v. United States, supra, 491U.S.624–25; Wheat v. United States,supra,486U.S. 159; see also, e.g., Peeler I, supra, 265 Conn. 471–72. ‘‘To be sure, the right to counsel of choice is circumscribed in several important respects.’’ (Internal quotation marks omitted.) United States v. Gonzalez-Lopez, supra, 548 U.S. 144. Significantly, ‘‘a defendant may not insistonrepresentationbyanattorneyhecannotafford or who for other reasons declines to represent the defendant.’’Wheatv.UnitedStates,supra,486U.S.159. ‘‘[T]he right to counsel of choice does not extend to defendants who require counsel to be appointed for them. . . . Nor may a defendant insist on representation by a person who is not a member of the bar, or demand that a court honor his waiver of conflict-free representation. . . . We have recognized a trial court’s widelatitudeinbalancingtherighttocounselofchoice against the needs of fairness . . . and against the demands of its calendar . . . . The court has, moreover, an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.’’ (Citations omitted; internal quotation marks omitted.) United States v. Gonzalez-Lopez, supra, 151–52, citing Caplin & Drysdale, Chartered v. United States, supra, 491 U.S. 624–26; Wheat v. United States, supra, 159–60; Morris v. Slappy, 461 U.S. 1, 11–12, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983). In Gonzalez-Lopez, the UnitedStates Supreme Court held that ‘‘erroneous deprivationof the right to counsel of choice, with consequences that are necessarily unquantifiableandindeterminate,unquestionablyqualifies as structural error.’’11 (Internal quotation marks omitted.) United States v. Gonzalez-Lopez, supra, 548 U.S.150.TheSupremeCourtwas,however,silentabout whether the defendant is constitutionally entitled to representation by his previously disqualified attorney at that new trial, regardless of any change in circumstances at that time, such as the defendant becoming indigent.Seeid.,152.OurrescriptinPeelerIissimilarly silent,directingremandfora‘‘newtrial’’withnofurther qualification after concluding that ‘‘[u]nder the particular circumstances of this case, because the state did not demonstrate the compelling need for Mastronardi’s
testimony . . . the appropriate remedy for this court is to order a new trial.’’12 (Citation omitted.) Peeler I, supra,265Conn.478.Indeed,asbothpartiesrecognize, this case appears to present a question of first impression nationally, as neither the parties’ briefs, nor our independent research, reveals any case law directly on point.13 The most persuasive authority we have found in this context is the decision of the United States Court of Appeals for the District of Columbia Circuit in United States v. Childress, supra, 58 F.3d 693, on which the statereliesheavilytosupportitsargumentthatadefendant is not guaranteed representation by a particular attorney at a new trial ordered to remedy an earlier counsel of choice violation. Childress was a complex appeal that arose from three trials at which twentynine defendants were charged with narcotics, murder, and conspiracy charges. Id., 733–34. One of the defendants in that case, Columbus Daniels, was convicted of, inter alia, conspiracy to distribute cocaine and murder in the second and third trials, respectively, and sought reversal of his convictions on the ground that the trial court violated his right to counsel of choice by sua sponte disqualifying his retained attorney, R. Kenneth Mundy. Id. The court concluded that Mundy had been properly disqualified at the second trial, but agreed with Daniels’ argument that the trial court had improperly failed to consider whether Mundy could represent him at the third trial because the possibility of the conflict was no longer present by the time of that trial. Id., 734–35. A gap in the record with respect to whether Mundy ‘‘would have been willing and able to represent Daniels [at the third] trial,’’ however, left the court unable to determine whether the trial court hadactuallyviolatedDaniels’right tochoiceofcounsel at the third trial. Id., 735. Accordingly, the District of Columbia Circuit remanded the case to the trial court ‘‘for an inquiry into whether Mundy would have been willing and able to reenter the case,’’ with direction to order a new trial ‘‘[i]f, after a hearing, the [trial] court concludes that Mundy would have reentered the case on financial terms that Daniels could have met . . . .’’14 (Emphasis added.) Id., 736. The remedies ordered by the District of Columbia Circuit in Childress provide strong support for the state’s argument that a defendant is not guaranteed representation by his previously disqualified attorney at his new trial. First, the court contemplated a new trial as a remedy for any counsel of choice violation, despitethefactthatMundy,theimproperlydisqualified attorney, had died during the pendency of Daniels’ appeal and, therefore, would not be able to represent him at that new trial.15 See id. (‘‘Mundy’s death . . . does not moot this issue because the deprivation of his counsel of choice would entitle Daniels to a reversal of his conviction as a matter of constitutional right.
. . . Mundy’s death does not deprive the [trial] court of its power to grant Daniels the relief to which he would be entitled.’’ [Citation omitted.]). Second, the court emphasized that Daniels’ right to counsel of choice at a new trial would depend on his resources available at that time, stating: ‘‘Should the government elect to retry Daniels on these charges, Daniels must be afforded a reasonable opportunity to retain new counsel of choice with his own resources and be provided with court-appointed counsel if he proves unable to do so.’’ (Emphasis added.) Id. Thus, Childress provides strong support for the proposition that the sole remedy for the violation of the defendant’s right to counsel of choice is a new trial, with the defendant’s entitlement to counsel of choice at that proceeding determined by conditions, financial and otherwise, existing at the time of remand.16 Beyond Childress, courts have acknowledged in other contexts that a defendant’s choice of counsel at a new trial is determined by circumstances existing at thattime, evenwhenthenew trialisordered toremedy an earlier choice of counsel violation. For example, in holding that a pretrial ruling order denying a criminal defendant the right to retained counsel of choice is subject to interlocutory appeal under the Ohio statute providing for appellate review in criminal cases, the Ohio Supreme Court observed that ‘‘postconviction reversalofthetrialcourt’sjudgmentwouldnotbeautomatically effective. A criminal defendant might exhaust his or her resources during the first trial, thereby denying that defendant the counsel of his or herchoice.’’(Emphasisadded.)Statev. Chambliss,128 Ohio St. 3d 507, 511, 947 N.E.2d 651 (2011); see also Stateexrel.Keenanv.Calabrese,69OhioSt.3d176,180, 631 N.E.2d 119 (1994) (Wright, J., concurring) (joining decision holding that order disqualifying criminal defense counsel is not appealable final judgment, but expressing concern that ‘‘the solution in this case that a [postconviction] appeal is an adequate remedy at law may well be illusory’’), superseded by statute as stated in State v. Chambliss, supra, 510–11. Similarly, in dissentingfromadecisionconcludingthatordersdisqualifying criminal defense counsel are not immediately appealable, Justice Zappala of the Pennsylvania Supreme Court described numerous ‘‘consequences of forcing a defendant to wait until after judgment to appeal a disqualification order,’’ including that ‘‘the defendant’s chosen counsel may not be available for a secondtrialduetoillness,relocation,orotherworkthat prevents him or her from representing the defendant in a new trial. If this is the case, then the defendant’s right will have been irreparably lost. There is also the possibilitythatadefendantmaynothavethefinancial resources to obtain the originally chosen attorney a second time. Additionally, the defendant might be hesitant to confide in the new attorney after having been
stripped of his or her first attorney.’’17 (Emphasis added.) Commonwealth v. Johnson, 550 Pa. 298, 310, 705A.2d830(1998);seealsoid.,309(deemingit‘‘fundamentally unfair to require a defendant to proceed to trial without counsel of choice and incur the attendant counsel fees in order to vindicate on appeal the right to be represented by the attorney initially retained’’). In our view, these cases concerning the efficacy of waitinguntilapostjudgmentappealtoaddresspotential choiceofcounselviolationssupportthestate’sposition thatthedefendant’srighttorepresentationbyhiscounsel of choice may change over time, namely, between his first trial and a new trial ordered after a successful appeal.18 Moreover, we agree with the state that the fact of a new trial by itself generally inures to the benefit of the defendant, regardless of who represents him at that trial. See Morris v. Slappy, supra, 461 U.S. 15 (‘‘[t]he spectacle of repeated trials to establish the truth about a single criminal episode inevitably places burdens on the system in terms of witnesses, records, and fading memories, to say nothing of misusing judicial resources’’);accord Statev. Payne,260Conn.446,464– 66, 797 A.2d 1088 (2002) (discussing ‘‘institutional costs’’ of ordering new trial as sanction for deliberate prosecutorialimproprieties,includingwitnesses’potential unavailability and memory loss). Thus, the new trial itself serves as a sanction for the violation of the defendant’s right to counsel of choice, in addition to affordingthedefendantanotheropportunitytoexercise that right. Accordingly, we conclude that, on remand for a new trial to remedy the violation of a criminal defendant’s right to counsel of choice; see United States v. Gonzalez-Lopez,supra,548U.S.150;thetrialcourtisrequired toconsiderwhetheritisfeasibletoallowthedefendant the attorney of his choice at that new trial. If the defendant wishes to engage the services of the attorney who previously had been unable to represent him because of the choice of counsel violation, and that attorney is willing and able to represent that defendant at his new trial under a mutually acceptable fee arrangement, including by assignment if the defendant has become indigent,thetrialcourtshouldhavethatattorneyrepresent the defendant at the new trial.19 If, however, that attorney is unwilling or unable to represent the defendant at the new trial at a mutually agreeable fee, the defendant’s sole relief lies in the new trial itself and the hiring or appointment of new counsel.20 See United Statesv.Childress,supra,58F.3d736;seealsoCaplin& Drysdale, Chartered v. United States, supra, 491 U.S. 624–25; Wheat v. United States, supra, 486 U.S. 159. Turning to the record in the present case, the trial court properly protected the defendant’s right to counselofchoicebyconsideringtheextenttowhichMastro
nardi was willing and able to represent the defendant at his new trial on remand from Peeler I. Given the court’s determination that Mastronardi was not available to represent the defendant because the defendant was indigent and Mastronardi would not accept assigned counsel rates to represent him,21 we conclude that the trial court did not violate the defendant’s right to counsel of choice at his new trial by denying his funding motion.

Outcome: The judgment is affirmed.

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