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STATE OF CONNECTICUT v. RUSSELL PEELER

(SC 19282)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and

Robinson, Js.

Argued December 14, 2015—officially released March 8, 2016

Lisa J. Steele, assigned counsel, for the appellant

(defendant).

Emily D. Trudeau, deputy assistant state’s attorney,

with whom, on the brief, were John C. Smriga, state’s

attorney, and Joseph Corradino, senior assistant state’s

attorney, for the appellee (state).
Opinion

ROBINSON, J. 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, appeals1from the judgment of the trial court

in two consolidated cases, rendered after a jury trial

conducted on remand from this court’s decision in State

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

in violation of General Statutes § 53a-49 (a) and General

Statutes (Rev. to 1997) § 53a-54a (a), two counts of risk

of injury to a child in violation of General Statutes (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

to effectuate the remedy ordered by this court in Peeler I

forthe improper disqualification of his chosen attorney,

Gary Mastronardi, when it denied his motion to require

the state to pay Mastronardi’s private fee rates, because

he had become indigent and Mastronardi would not

represent him atthe new trial atthe rate paid to assigned

counsel by the Division of Public Defender Services

(division).2 We disagree and, accordingly, we affirm 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 in the police arrest warrant affidavit

dated September 11, 1997, and in the second substitute

information filed January 20, 1998. In the second case,

the state alleged that on May 29, 1998, while he was free

on bond following his arrest for the drive-by shooting in

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, who filed his appearance on July 23, 1998,
in connection with both cases.

‘‘Following the consolidation of the two cases, on

August 11, 1998, the state filed a motion for a protective

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, held on October 6, 1998, the trial court, 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

who had given statements to the police. Pursuant to that

court order, on or about December 23, 1998, [S]enior

[A]ssistant [S]tate’s [A]ttorney C. Robert Satti, Jr., provided Mastronardi with the statement by Brown regarding the drive-by shooting and filed with the clerk of the

court notice of service of disclosure with an attached

supplemental disclosure listing, inter alia, the statement

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 defendant in connection with the Brown andClarke murders.3

‘‘On June 9, 1999, the state moved to disqualify Mastronardi from representing the defendant in the two

cases involving [Rudolph] Snead on the ground that the

state intended to call Mastronardi as a witness in the

defendant’s capital felony case for the murder of Brown

and Clarke.’’ (Footnote altered.) Id., 463–65. After a

hearing, the trial court, Thim, J., granted the state’s

motion to disqualify Mastronardi, concluding that ‘‘ ‘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

appointed Attorney Robert Sullivan as assigned counsel

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

this court, claiming that, ‘‘in the absence of a compelling

need for Mastronardi’s testimony at the trial involving

the Brown and Clarke homicides, the trial court improperly granted the state’s motion to disqualify Mastronardi

in the [two] cases [involving Rudolph Snead]. The defendant 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, Mastronardi stated that he did not ‘‘believe that

[he] would be able’’ to represent the defendant,

explaining that the defendant had made ‘‘substantial

payments toward the trial,’’ and that‘‘after my disqualification, 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

position atthis time to represent[the defendant].’’5 Sullivan advised the court thatthe defendant no longer could

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.

The defendant subsequently filed that motion, 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,
the parties established that the defendant was now indigent 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 Mastronardi would not accept assigned counsel rates to represent 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

conclude that his argument ‘‘focus[ed] in on one phrase

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

counsel means the right to privately compensated counsel. That’s our history in America. . . . [U]ntil we had

public defenders, that’s how people got [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

court further denied the defendant’s request for ‘‘public

funding of . . . Mastronardi’s fee,’’ concluding that

Peeler I did not require it. Accordingly, the trial court

scheduled the matter for a trial at which Sullivan would

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, and sentenced the defendant to a total effective

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

pay Mastronardi’s fees to represent him at his new trial,

or in the alternative, to dismiss the charges against him.

He contends that to ‘‘deprive him again of Mastronardi’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] had never been able to afford private counsel, 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

argues that the order of this court in Peeler I remanding

the case for a new trial because ofthe improper disqualification 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

anything on remand beyond inquire about whether ‘‘the

previously disqualified counsel is willing to resume representation at a rate the defendant can afford, and, if

the disqualified counsel is unwilling to do so, there is

no error when the trial court assigns a different attorney

and proceeds to trial.’’ We agree with the state, and

conclude thatthe defendant was not entitled to anything

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.

Whether an indigent defendant is entitled to the services

of a particular attorney at a new trial ordered by an

appellate court, as a remedy for the violation of his

right to counsel of choice, is a question of constitutional

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).

Our analysis is guided by the following general principles 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]ssistance of [c]ounsel for his [defense]. We have previously

held that an element of this right is the right of a defendant who does not require appointed counsel to choose

who will represent him. . . . [T]he [s]ixth [a]mendment guarantees a defendant the right to be represented

by an otherwise qualified attorney whom that defendant

can afford to hire, or who is willing to represent the

defendant even though he is without funds.’’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,

491 U.S. 624–25; Wheat v. United States, supra, 486 U.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

insist on representation by an attorney he cannot afford

or who for other reasons declines to represent the

defendant.’’ Wheat v. United States, supra, 486 U.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

wide latitude in balancing the right to counsel of choice

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 United States Supreme Court

held that ‘‘erroneous deprivation of the right to counsel

of choice, with consequences that are necessarily

unquantifiable and indeterminate, unquestionably qualifies as structural error.’’11 (Internal quotation marks

omitted.) United States v. Gonzalez-Lopez, supra, 548

U.S. 150. The Supreme Court was, however, silent about

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. See id., 152. Our rescript in Peeler I is similarly

silent, directing remand for a ‘‘new trial’’ with no further

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, 265 Conn. 478. Indeed, as both parties recognize,

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

state relies heavily to support its argument that a defendant 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

had actually violated Daniels’ right to choice of counsel

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,

despite the fact that Mundy, the improperly disqualified

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

that time, even when the new trial is ordered to remedy

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

reversal of the trial court’s judgment would not be automatically effective. A criminal defendant might

exhaust his or her resources during the first trial,

thereby denying that defendant the counsel of his or

her choice.’’ (Emphasis added.) State v. Chambliss, 128

Ohio St. 3d 507, 511, 947 N.E.2d 651 (2011); see also

State ex rel. Keenan v. Calabrese, 69 Ohio St. 3d 176, 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 dissenting from a decision concluding that orders disqualifying 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

second trial due to illness,relocation, or other work that

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

possibility that a defendant may not have the financial

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,

705 A.2d 830 (1998); see also id., 309 (deeming it ‘‘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

waiting until a postjudgment appeal to address potential

choice of counsel violations support the state’s position

that the defendant’s right to representation by his counsel 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 State v. Payne, 260 Conn. 446, 464–

66, 797 A.2d 1088 (2002) (discussing ‘‘institutional

costs’’ of ordering new trial as sanction for deliberate

prosecutorial improprieties, including witnesses’ 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

affording the defendant another opportunity to exercise

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, 548 U.S. 150; the trial court is required

to consider whether it is feasible to allow the defendant

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, the trial court should have that attorney represent 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

States v.Childress, supra, 58 F.3d 736; see alsoCaplin &

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 counsel of choice by considering the extent to which Mastro-
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.22

The judgment is affirmed.

In this opinion the other justices concurred.

1 The defendant appeals directly to this court pursuant to General Statutes

§ 51-199 (b) (3).

2 As the parties observe, the division now refers to attorneys in private

practice appointed to represent indigent criminal defendants as ‘‘assigned

counsel’’; it previously had referred to them as ‘‘special public defenders.’’

In this opinion, we refer to such attorneys as assigned counsel unless quoting

from judicial opinions or transcripts using the former parlance.

3 With respect to the Brown and Clarke murders, ‘‘the defendant was

convicted of one count of murder in violation of General Statutes [Rev. to

1999] § 53a-54a (a), two counts of capital felony in violation of General

Statutes (Rev. to 1999) § 53a-54b (8) and (9), respectively, and one count

of conspiracy to commit murder in violation of [General Statutes (Rev. to

1999) § 53a-54a (a) and General Statutes § 53a-48 (a)].’’ (Footnotes omitted.)

State v. Peeler, 271 Conn. 338, 343–44, 857 A.2d 808 (2004), cert. denied,

546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005) (Peeler II). In convicting

the defendant of these charges, the jury found that the defendant had

arranged for Adrian to kill Brown and Clarke, with the aid of two other

people. Id., 352–55. The state sought the death penalty, and following a

penalty phase hearing, the jury deadlocked on whether to sentence the

defendant to death. Id., 355–56. The trial court then denied the state’s motion

for a mistrial, ‘‘subsequently dismissed the penalty phase proceedings, rendered a judgment of guilty in accordance with the verdict and, merging the

two capital felony counts and the murder count, sentenced the defendant

to a total effective sentence of life imprisonment without the possibility of

release.’’ Id., 356–57. Following appeals by the state and the defendant from

this judgment, this court affirmed the defendant’s convictions in Peeler II,

but reversed the sentence of life imprisonment without the possibility of

release, and remanded the case for a new penalty phase hearing. Id., 456;

see also id., 422–23 (agreeing with state’s claim that trial court improperly

denied its motion for mistrial and improperly instructed jury that deadlock

would result in sentence of life imprisonment without parole). After a new

penalty phase hearing was held on remand from Peeler II, a jury unanimously

concluded that a death sentence was appropriate, and the trial court rendered judgment in accordance with the jury’s verdict, from which the defendant again appealed to this court. That appeal remains pending before this

court under Docket No. SC 18125.

4

‘‘Additionally, the court, [Thim, J.] pursuant to a motion by the state,

consolidated all of the cases against the defendant with the case against his

brother, Adrian Peeler, in connection with the Brown and Clarke homicides.

Later, the trial court, Ford, J., granted the defendant’s motion to sever the

cases against him involving [Rudolph] Snead from the capital felony cases

against the defendant and his brother involving Brown and Clarke.’’ Peeler

I, supra, 265 Conn. 468.

5 Mastronardi advised the court that he and the defendant had entered

into a fee arrangement requiring the payment of separate pretrial and trial

fees. He stated that he had refunded the trial portion of the fee to the

defendant.

6 The defendant also sought, and the trial court denied, dismissal on double

jeopardy grounds. The defendant does not challenge that aspect of the trial

court’s ruling in the present appeal.

7 There was some discussion about the amount of trial fees that Mastronardi had returned to the defendant, with the defendant arguing through

Sullivan that the fee Mastronardi had negotiated at the defendant’s first trial

was based on dramatically different circumstances, insofar as the new trial

presented far more significant discovery and trial preparation obligations.

8 The defendant argued that the state was obligated to pay Mastronardi
to represent him because the state had created the problem by filing the

original motion to disqualify Mastronardi, emphasizing that the defendant

had the ability to pay Mastronardi at the time of the original motion. The

defendant also argued that not paying Mastronardi to represent him would

require dismissal of the charges against him because it would mean that

the violation of his right to counsel of choice could not be remedied.

9 Acknowledging the defendant’s expressed intention to file an interlocutory appeal from this decision, the trial court stated that the trial date would

be subject to any appellate stays. The defendant did not, however, file an

interlocutory appeal; he observes in his brief in this appeal that: ‘‘In general,

an order disqualifying counsel is not immediately appealable.’’ But see footnote 18 of this opinion.

10 In his brief, the defendant also relies on the state constitutional right

to counsel. See Conn. Const., art. I, § 8. Because he does not provide any

independent analysis asserting greater protections under the state constitution; see, e.g., State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d 1225 (1992);

‘‘we deem abandoned any state constitutional . . . claim. . . . Accordingly, we analyze the defendant’s . . . claim under the federal constitution

only.’’ (Citation omitted.) State v. Skok, 318 Conn. 699, 701–702 n.3, 122 A.3d

608 (2015).

11 In so concluding, the Supreme Court observed that: ‘‘Different attorneys

will pursue different strategies with regard to investigation and discovery,

development of the theory of defense, selection of the jury, presentation of

the witnesses, and style of witness examination and jury argument. And the

choice of attorney will affect whether and on what terms the defendant

cooperates with the prosecution, plea bargains, or decides instead to go to

trial. In light of these myriad aspects of representation, the erroneous denial

of counsel bears directly on the framework within which the trial proceeds

. . . or indeed on whether it proceeds at all. It is impossible to know what

different choices the rejected counsel would have made, and then to quantify

the impact of those different choices on the outcome of the proceedings.

Many counseled decisions, including those involving plea bargains and cooperation with the government, do not even concern the conduct of the trial

at all. [Harmless error] analysis in such a context would be a speculative

inquiry into what might have occurred in an alternate universe.’’ (Citation

omitted; internal quotation marks omitted.) United States v. GonzalezLopez, supra, 548 U.S. 150.

12 As the defendant recognized in arguing this case to the trial court, this

court stated in the body of its opinion in Peeler I that, ‘‘if the trial court in the

present case improperly disqualified Mastronardi, the appropriate remedy is

to reverse the judgment of conviction and grant the defendant a new trial

with his counsel of choice.’’ Peeler I, supra, 265 Conn. 476. This court did

not, however, provide in Peeler I: (1) any citation to support the proposition

that the defendant is guaranteed the right to representation by his counsel

of choice at his new trial, regardless of any change in circumstance; or (2)

guidance with respect to what would happen if the defendant’s chosen

counsel were not available, willing, or able to represent him on remand.

13 Our independent research reveals several decisions from other state

courts with language similar to Peeler I, supra, 265 Conn. 476, in the body

or rescript portions of opinions, stating that remand for a new trial with

counsel of choice is the appropriate remedy for choice of counsel violations.

See State v. Roberts, 569 So. 2d 671, 677 (La. App. 1990) (stating that remedy

for improper denial of continuance to engage new attorney ‘‘is to reverse

[the defendant’s] conviction and sentence and remand the case for a new

trial with counsel of his choice’’); People v. Johnson, 215 Mich. App. 658,

670, 673, 547 N.W.2d 65 (1996) (reversing conviction and remanding case

‘‘for a new trial before a different judge in accordance with this opinion,’’

at which ‘‘defendant may be represented by [improperly disqualified public

defender] if he requests such representation’’), appeal dismissed, 560 N.W.2d

638 (Mich. 1997); Commonwealth v. Rucker, 563 Pa. 347, 352, 761 A.2d 541

(2000) (stating that ‘‘[a]ppellant is entitled to a new trial with representation

to be provided by his privately-retained counsel,’’ with rescript stating that

‘‘[j]udgment of sentence [is] reversed, and a new trial [is] granted’’); Commonwealth v. Prysock, 972 A.2d 539, 545 (Pa. Super. 2009) (reversing denial

of motion for continuance to allow defendant to substitute retained counsel

for public defender, with rescript remanding case ‘‘for a new trial with

retained counsel’’). Like Peeler I, however, none of these cases provide any

guidance, either directly or through their subsequent history, with respect

to further remedies should the defendant no longer be able to retain his

choice of counsel on retrial.
14 Alternatively, the District of Columbia Circuit stated: ‘‘If, on remand,

the district court concludes that Mundy would not have reentered the case

on terms that Daniels could have met, we hold that Daniels was not denied

counsel of choice and that his murder . . . [conviction] must stand.’’ United

States v. Childress, supra, 58 F.3d 736.

15 We note that one member of the panel in Childress disagreed with the

majority’s conclusion that Mundy’s death did not moot Daniels’ appeal.

United States v. Childress, supra, 58 F.3d 736–37 (Williams, J., dissenting

in part). The dissenting judge stated that this aspect of Daniels’ appeal was

moot insofar as a retrial was not an appropriate remedy because, ‘‘[o]n any

retrial, there are only two possibilities for [Daniels’] representation. First,

Daniels may be as unable as he was before to find someone who will

represent him for what he could pay, so that he might again receive appointed

counsel. In that case, the retrial would be an exact duplicate of the first

one in all matters relevant to this issue. On the other hand, Daniels may

now be able to arrange for paid counsel. But Daniels never claimed he was

forbidden from using paid counsel other than Mundy, and a retrial under

these circumstances would be responsive only to an error never claimed

and give Daniels something completely different from what (by hypothesis)

the trial court erroneously denied. Against the very slight value of this

relief—relief that is at best only marginally responsive to the error made—

stand the costs of requiring a new trial.’’ (Emphasis omitted.) Id., 737. Thus,

the dissenting judge concluded that ‘‘it would be better to let the error go

uncorrected than to force the system to incur the burdens of another trial,

welcome as the prospect of such a windfall may be to Daniels.’’ Id.

16 In a footnote in his reply brief, the defendant appears to acknowledge

that his right to representation by Mastronardi at his new trial is not absolute,

positing that the substitution of assigned counsel would be appropriate if

Mastronardi had become ‘‘incapacitated, disbarred, or no longer willing to

represent’’ him on remand—just as that measure would be appropriate had

those events happened at the time of the first trial. See Practice Book § 3-

10 (c). This concession, however, belies the weakness in the defendant’s

constitutional argument, which seeks the sixth amendment equivalent of

time travel with respect to the restoration of his right of counsel of choice.

17 The majority in Commonwealth v. Johnson, 550 Pa. 298, 305–306, 705

A.2d 830 (1998), did not respond to these points, stating only that: ‘‘Like

the denial of a suppression motion, an order disqualifying counsel is reviewable after [a] judgment of sentence. If a judgment is obtained and it is

determined on appeal that the trial court improperly removed counsel, the

right to counsel of choice is not lost. There will be a new trial and the

defendant will have his counsel of choice.’’

18 We note that whether the granting of a motion to disqualify counsel in

a criminal case is an appealable final judgment under State v. Curcio, 191

Conn. 27, 31, 463 A.2d 566 (1983), appears to be an open question under

this court’s case law. See State v. Vumback, 247 Conn. 929, 932–33, 719 A.2d

1172 (1998) (Berdon, J., dissenting from denial of certification) (concluding

that Burger & Burger, Inc. v. Murren, 202 Conn. 660, 669–70, 522 A.2d

812 [1987], which held that disqualification of attorney in civil case is not

appealable final judgment, did not overrule, in criminal cases, that aspect

of State v. Rapuano, 192 Conn. 228, 229 n.1, 471 A.2d 240 [1984], which

held to contrary, and that majority’s decision not to grant certification

‘‘threatens the fundamental right of an accused to counsel of his choice’’);

but see Peeler I, supra, 265 Conn. 469 n.7 (discussing Flanagan v. United

States, 465 U.S. 259, 269, 104 S. Ct. 1051, 79 L. Ed. 2d 288 [1984], which

held that disqualification order is not appealable final judgment in federal

appellate courts); State v. Lantz, 120 Conn. App. 817, 820–21, 993 A.2d 1013

(2010) (disqualification of counsel in violation of probation proceeding,

which is civil matter, is not appealable final judgment). We note that the

federal courts and our sister state courts are split on this question. Compare,

e.g., Flanagan v. United States, supra, 269 (disqualification of criminal

defense counsel is not appealable final judgment), and Commonwealth v.

Johnson, supra, 550 Pa. 305–306 (same), with, e.g., Stearnes v. Clinton, 780

S.W.2d 216, 225 (Tex. Crim. App. 1989) (An interlocutory appeal is appropriate to challenge a removal of appointed counsel because ‘‘a criminal

defendant should not be subjected to a trial and appeal process without

the appointed counsel he had grown to accept and gain confidence in. The

utilization of the appellate process in this situation to correct this particular

ill would be too burdensome and would only aggravate the harm and most

likely would result in a new trial compelling relator to again endure a trip

through the system, creating in turn needless additional cost to the taxpayers
of this state.’’ [Footnote omitted.]), and State v. Chambliss, supra, 128 Ohio

St. 3d 511 (‘‘a pretrialruling removing a criminal defendant’s retained counsel

of choice is a final order, subject to immediate appeal’’).

19 We note that the defendant expressly disclaims any argument that the

trial court should have compelled Mastronardi to represent him at the

assigned counsel rate. We do, however, agree with the defendant that, had

Mastronardi been willing to accept assigned counsel rates, the trial court

could have exercised its discretion to appoint Mastronardi to represent the

defendant at his new trial—regardless of whether Mastronardi is on the

assigned counsel list maintained by the Chief Public Defender pursuant to

General Statutes § 51-291 (11). See General Statutes § 51-293 (a) (2) (judges

to appoint assigned counsel in ‘‘an appropriate case’’ ‘‘[w]henever possible’’

from Chief Public Defender’s list).

20 We note that the defendant considers it ‘‘iron[ic]’’ that he was represented by Sullivan at his new trial, despite the fact that Sullivan was

appointed to represent him at his firsttrial afterthe trial court had improperly

disqualified Mastronardi. To this end, the defendant posits in a footnote in

his reply brief that, in ‘‘light of the remand, it might be appropriate to permit

[him] to request a different assigned counsel if he could find one willing to

represent him who might make different strategic and tactical choices than

the attorney who represented him’’ at the first trial. Because the defendant

fails to point to anything in the record indicating his dissatisfaction with

representation by Sullivan at the second trial—beyond the fact that Sullivan

is not Mastronardi—we decline to considerthe extent to which the defendant

was entitled to different assigned counsel on remand in connection with

the remedy for his counsel of choice violation.

21 Because we conclude that the defendant was not entitled to state paid

representation by Mastronardi on remand given his changed financial circumstances, we need not consider his arguments that the mechanics of

such payments would be governed by State v. Wang, 312 Conn. 222, 92 A.3d

220 (2014).

22 We briefly address the defendant’s claim that he is entitled to dismissal

as a remedy for the violation of his right to counsel of choice. Acknowledging

that dismissal is ‘‘a harsh sanction,’’ he posits that ‘‘it may be the only

available sanction if this court rejects having his chosen counsel paid at

public expense.’’ The defendant contends that not utilizing dismissal in

cases like this one ‘‘leaves the defendant without remedy and provides little

disincentive for the state to attempt to disqualify counsel—if the motion is

successful, by the time the case is appealed and remanded, many defendants

will have exhausted their resources and be unable to exercise their right

to chosen counsel on remand. The prospect of dismissal in such rare circumstances provides an alternative sanction to a violation otherwise without

practicalremedy.’’ The defendant further emphasizes that dismissal is appropriate in this ‘‘unique’’ case because ‘‘it would not have any practical effect

on the length of [his] incarceration,’’ as he already is serving a life sentence

on federal charges, and faces either the death penalty or life without parole

as a result of the convictions pertaining to the murder of Brown and Clarke.

See footnote 3 of this opinion. We disagree with the defendant’s arguments

in support of dismissal.

First, the defendant’s entreaty aside, we do not have the luxury of ignoring

the precedential effect of our decisions, even in apparently ‘‘unique’’ cases

like this one. See, e.g., Stuart v. Stuart, 297 Conn. 26, 45–46, 996 A.2d 259

(2010). Second, we acknowledge that dismissal may well be an appropriate

sanction for counsel of choice violations that result from severe prosecutorial impropriety. See United States v. Stein, 495 F. Supp. 2d 390, 427–28

(S.D.N.Y. 2007) (dismissing indictments against defendants, who were

employees of accounting firm, because of federal prosecutors ‘‘deliberately’’

and ‘‘callously’’ took actions, pursuant to cooperation policy outlined in

Department of Justice ‘‘Thompson Memorandum,’’ to coerce, via threat of

indictment, accounting firm to change its policy of paying attorney’s fees

for personnel, which had effect of depriving defendants of their counsel of

choice in complex tax fraud case); accord State v. Lenarz, 301 Conn. 417,

451, 22 A.3d 536 (2011) (ordering dismissal to avert ‘‘miscarriage of justice’’

when ‘‘prosecutor clearly invaded privileged communications that contained

a detailed, explicit road map of the defendant’s trial strategy’’ and failed to

disclose invasion before trying ‘‘case to conclusion more than one year after

the invasion occurred’’), cert. denied, U.S. , 132 S. Ct. 1095, 181 L. Ed.

2d 977 (2012).Although a majority of this court determined in Peeler Ithat the

trial court had abused its discretion in ruling on the state’s disqualification

motion, the record in this case does not disclose even a colorable claim of
egregious and severe prosecutorial interference with the defendant’s right

to choice of counsel that would warrant dismissal, insofar as the state’s

disqualification motion was consistent with the prosecutor’s duty to act in

good faith to ‘‘protect the case against conflicts of interest’’—the discharge

of which requires the prosecutor to notify the court of the existence of

‘‘potential conflicts of interest’’ that affect defense counsel’s representation

of the defendant. United States v. McKeighan, 685 F.3d 956, 969 (10th Cir.),

cert. denied, U.S. , 133 S. Ct. 632, 184 L. Ed. 2d 411 (2012).