State v. Barjon

186 Conn.App. 320

199 A.3d 1119

STATE of Connecticut

v.Jean BARJON

AC 40477

Appellate Court of Connecticut.

Argued September 11, 2018

Officially Released December 4, 2018

Stephen A. Lebedevitch, assigned counsel, for the appellant (defendant).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Joseph J. Harry, senior assistant state's attorney, for the appellee (state).

Keller, Moll and Beach, Js.

BEACH, J.

The defendant, Jean Barjon, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (2), robbery in the second degree in violation of General Statutes (Rev. to 2011) § 53a-135 (a) (1), and conspiracy to commit robbery in the second degree in violation of § 53a-48 and General Statutes (Rev. to 2011) § 53a-135 (a) (1).¹ On appeal, the defendant claims that the trial court violated his right to conflict free counsel under the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. We affirm the judgment of the trial court.

The defendant and his codefendant, Jacques Louis, were tried together. In State v. Louis , 163 Conn. App. 55, 58–60, 134 A.3d 648, cert. denied, 320 Conn. 929, 133 A.3d 461 (2016), this court held that a jury reasonably could have found the following facts: "On December 28, 2011, at approximately 8:15 p.m., [Louis], [the defendant], Tinesse Tilus, and Guailletemps Jean-Philippe (conspirators) together entered the Caribbean-American Market (market) on Wood Avenue in Bridgeport. They called for the owner, Rene Adolph, who was in the kitchen cooking, to come out. Adolph recognized Tilus and [the defendant], but not [Louis] and Jean-Philippe, who stood on either side of him. The conspirators demanded money from Adolph, and Jean-Philippe displayed a firearm. Adolph, fearing for his life, ran from the market to the laundry next door and called out for help. [Louis], [the defendant], and Tilus chased Adolph, who held the door to the laundry closed as [Louis] attempted to open it. Margarita Avcolt, a laundry employee, observed the activity, and telephoned the police. She saw one man trying to open the door and two others standing a ‘meter’ away.

"Meanwhile, Jean-Philippe, who had remained in the market, walked into the walled-in area occupied by the cashier, Ramon Tavares. Jean-Philippe displayed his gun and ordered Tavares to give him money. Jean-Philippe took the money Tavares gave him, as well as his phone.

"Back at the laundry, Adolph saw a police cruiser passing by, so he ran out and flagged down Officer Elizabeth Santoro. The three conspirators, who had followed Adolph to the laundry, ran and got into a car. Adolph pointed to the three conspirators in the car, who were getting ready to ‘take off.’ Adolph told Santoro that the men had tried to rob him. He also pointed to Jean-Philippe, who by that time was running away from the market on Wood Avenue. Adolph saw him ‘toss the gun.’ Santoro was able to detain Jean-Philippe, and told [the defendant], the driver of the car, not to move. Tilus and [Louis] were passengers in the car. According to Santoro, all of the conspirators were dressed in suits as if they were going somewhere.

"Officer Christopher Martin arrived on the scene as backup for Santoro. Martin seized $635 from Jean-Philippe and found a loaded, operable firearm that Jean-Philippe had discarded near a trash receptacle. A fire-arms expert, Marshall Robinson, examined the gun that Martin recovered and the casings it ejected when fired. As part of his investigation, Robinson learned that the gun had been used to fire cartridges in an incident in New Jersey. Both [Louis] and Jean-Philippe were from New Jersey.

"[Louis] and [the defendant] were each charged with robbery in the first degree, conspiracy to commit robbery in the first degree, robbery in the second degree, and conspiracy to commit robbery in the second degree, and stood trial together. [Louis'] theory of defense was that he was ‘merely present’ at the time of the robbery and that Adolph's testimony was not believable. [The defendant] also claimed that he merely was present at the time of the robbery, that Adolph was not credible, and that Jean-Philippe acted alone in order to collect an unpaid debt from Adolph, who allegedly ran an illegal lottery from the market."

From the outset of the criminal proceedings against the defendant, Attorney Eroll Skyers represented both the defendant and Tilus, who had criminal charges arising from the same events pending against him but was tried in a separate proceeding. On February 7, 2012, the defendant entered a plea of not guilty to the charges. Over the course of the following months, the state and the defendant were not able to agree upon a disposition, and the case was placed on the trial list. On October 2, 2012, Attorney Skyers appeared in court with the defendant, who at that time had communicated through counsel his intention to plead guilty under the Alford² doctrine to the charge of conspiracy to commit robbery in the first degree. The following colloquy occurred between the trial court, Devlin , J. , and the defendant during the plea canvass:

"The Court: Do you believe, Mr. Barjon, that even though you disagree with [the prosecutor's statement of facts], even though you don't agree that it happened the way the prosecutor said, do you think [that] if you went to trial and ... they put forward their evidence in court, there's at least a risk that the jury might believe their side of the case and convict you on this charge and the other charge pending against you. Do you think there's a chance of that?

"[The Defendant]: No, not so ever. No.

"The Court: All right. So, why are you pleading guilty?

"[The Defendant]: I'm risking ... losing my job, taking time—I already have a job, I have a good job of making sixty something thousand dollars every year.

"The Court: Right.

"[The Defendant]: So, taking [time] off every day to come to court, to trial every day. And then I take the plea to help my friend that I put in trouble for not doing anything—

"The Court: Right, but you know—

"[The Defendant]: —Tinesse

"The Court: But—

"[The Defendant]: So, I do it in my heart.

"The Court: Yes, but here's the thing, Mr. Barjon, the plea bargain here calls for a potential sentence of up to four years in jail. You know that, right?

"[The Defendant]: Well ... my lawyer said ... they're ... right to argue.

"The Court: Right. But there's no guarantee you're going to get less than that, there's none whatsoever. So, you should not be pleading guilty thinking you're going to go back to work on the day of your sentencing. You should not do that. If you're ... taking this plea to keep your job or taking this plea to—and really, honestly, Mr. Barjon, while I commend your ... concern about your friend, this is your decision to make, and you need to make it based on your own interests. Okay....

"The Court: ... So, I can't take your plea, Mr. Barjon, if you're not going to acknowledge there's at least a risk that you could be convicted."

After the court declined to accept the defendant's plea, it addressed Attorney Skyers about a potential problem regarding his continuing to represent both the defendant and Tilus:

"The Court: ... Okay. So, what's the situation? So, I've called in Mr. Barjon and Mr. Tilus for trial. From the very first moment they came to our court, they were jointly represented by—by yourself, Attorney Skyers. And now it looks like, as we had before, [we're] unable to resolve the case on any kind of a plea negotiation. We have a judge available. And these cases are going to start trial. But ... my understanding is that you believe there's some problem ... at this point ... [with] your representation of both defendants?

"Attorney Skyers: I— I—

"The Court: Well, I don't know, maybe these further discussions [have] clarified that. I'm not sure. But if there is, this is the time to put [it] on the record, so we can address it directly.

"Attorney Skyers: At the time—that's correct. At the time that Mr. Barjon and Mr. Tilus came to my office, I indicated to both of them that potentially there could be a conflict for my representation of both. Do you agree with that, Mr. Barjon?

"[The Defendant]: Yes, I did.

"Attorney Skyers: And they persisted in their desire to have me represent them. And so, what I represented was that in the event that there could not be a disposition without trial, that at that point the conflict would have come to a real crux, and that I was suggesting to Mr. Barjon that he would have to have his own counsel representing him and he understood that. Is that not so?

"[The Defendant]: Yes.

"Attorney Skyers: And so, that coming here this morning prior to court opening up the session, I indicated that likely that's where we were today, and that Mr. Barjon would probably have to get his own counsel unless we were able to dispose of this by plea.

"The Court: See, that's very unfair to the court because the court goes through a process where we talk about these cases, we work out the discovery, we make a proposal to settle the cases. Sometimes that works, sometimes it doesn't. But then the case moves to being [on] a trial list. And I assume that all [of] these issues about potential conflicts are ... resolved. I mean ... to me this is highly inappropriate."

The court subsequently granted Attorney Skyers' motion to withdraw as counsel for the defendant and continued the defendant's case to enable the defendant to obtain new counsel. The defendant's case proceeded to trial in January, 2013, and the jury found the defendant guilty on all counts. The court subsequently sentenced the defendant to a total effective sentence of ten years of incarceration, execution suspended after five years, followed by five...