STATE v. TINESSE TILUS, SC 19503

Judicial District of Fairfield

Criminal; Whether Trial Court Secured Valid Waiver of Right to Conflict-Free Representation; Whether Prosecutorial Impropriety Deprived Defendant of a Fair Trial.  The defendant and Jean Barjon, Guillatemps Jean-Philippe and Jean Louis were charged in connection with the robbery of a Bridgeport convenience store.  The defendant and Barjon initially were represented by the same attorney.  The trial court asked the attorney about the potential conflict of interest arising from the dual representation, and the attorney stated that both men had insisted that he represent them, even after he disclosed the potential conflict of interest, but that they had agreed that Barjon would get another attorney if Barjon’s case proceeded to trial.  The trial court then canvassed the defendant regarding his understanding of the potential conflict of interest and whether he nonetheless wanted the attorney to represent him, and the defendant answered in the affirmative.  The attorney withdrew as Barjon’s attorney before his case proceeded to trial.  At the defendant’s trial, the defendant testified that the store’s owner had lied about the robbery because he ran an illegal lottery and did not want to pay out for a winning ticket purchased by Jean-Philippe.  The prosecutor addressed that testimony during closing argument when he argued that the victim’s alleged criminal activity did not excuse the defendant’s conduct and demonstrated his point by stating that the law does not condone the rape of a prostitute.  During closing argument, the prosecutor also called Jean-Philippe “muscle” that the defendant had solicited to assist with the robbery.  The defendant was convicted of robbery in the first degree and he appealed.  The Appellate Court (157 Conn. App. 453) affirmed the judgment, rejecting the defendant’s claim that the trial court violated his right to conflict-free representation in the pretrial phase of the proceedings in failing adequately to warn him of the problems that could arise from the dual representation.  The Appellate Court determined that the defendant had validly waived his right to conflict-free representation when he confirmed during the canvass that he wished for his attorney to continue his representation, even though he was told about the potential conflict of interest, represented that he understood it, and was given the opportunity to consult with another attorney.  The Appellate Court also rejected the defendant’s claims that the description of Jean-Philippe as “muscle” and the analogy drawn between the victim and a prostitute who has been raped constituted prosecutorial impropriety that denied him a fair trial.  The Appellate Court concluded that the analogy was a relevant rhetorical device employed by the prosecutor with the aim of defeating the possible defense view that the store’s owner deserved to be robbed because he had been running an illegal lottery.  The court also concluded that, while the prosecutor’s description of Jean-Philippe as “muscle” was improper, it did not violate the defendant’s right to a fair trial, noting that the impropriety was isolated and not severe, that the defendant did not object to the argument or request a curative instruction and that the state’s case against the defendant was strong.  The defendant appeals, and the Supreme Court will decide whether the Appellate Court properly determined that (1) the trial court secured a valid waiver of the defendant’s right to conflict-free representation and (2) the prosecutor did not violate the defendant’s right to a fair trial during closing argument.