233 Conn. 813 | Conn. | 1995
Lead Opinion
The principal issue in this capital felony appeal is the extent to which the defendant’s imperfect self-representation is a ground for affording him a new trial. The defendant, Jason Day, was charged with one count of capital felony in violation of General Statutes § 53a-54b (8), four counts of murder in violation of General Statutes § 53a-54a (a), and one count of assault in the third degree in violation of General Statutes § 53a-61 (a) (l).
The defendant thereafter drove Theresa H.’s car to a hospital in New York City, where he requested treatment under an assumed name and was diagnosed as having a fractured toe. Although he was scheduled for surgery, the defendant left the hospital before the operation was due to be performed. He subsequently was apprehended in a hospital in Baltimore by agents of the Federal Bureau of Investigation (FBI) on charges of unlawful flight to avoid prosecution. While in custody, the defendant confessed his role in the killings to FBI agents. Further facts will be related as necessary to address specific claims.
On June 12, 1990, the day after the defendant was charged in a multicount information, he was afforded legal representation by the appointment of William Holden, the public defender for the judicial district of Fairfield. One month later, at the defendant’s probable cause hearing, Patrick J. Culligan of the trial services unit in the office of the chief public defender also
Three weeks later, on March 26, 1991, the defendant moved in open court to waive his right to counsel and to represent himself. After canvassing the defendant, the trial court, McKeever, J.,
The state began presenting its evidence to the jury on May 20,1991. During the first day of the trial, four witnesses téstified. Before the trial resumed on the following day, May 21, the defendant requested that his standby counsel be reappointed to represent him/The trial cpurt immediately granted his request, appointed Culligan and Holden and adjourned for the day.
On May 22, Culligan and Holden moved for a mistrial. When their motion was denied, they requested a thirty day continuance. The trial court acceded to the request for a continuance, but only for thirteen days, until June 4,1991. On that day, after counsel’s renewed request for a longer continuance was denied, the presentation of evidence to the jury resumed. The jury returned a verdict of guilty on all counts on July 22,
On appeal, the defendant argues several grounds for reversal of the judgment against him. To some degree, each claim except the last relates to his decision to represent himself during the initial portion of the trial. The defendant asserts that the trial court improperly: (1) accepted his waiver of the right to counsel and permitted him to represent himself; (2) granted his pro se motion for a speedy trial while he still was represented by counsel; (3) denied his request for a mistrial upon reappointment of counsel; (4) denied various defense motions during voir dire; (5) upon reappointment of counsel, granted a continuance only for two weeks rather than for the one month requested; and (6) failed to instruct the jury on the “two witness” rule, which failure resulted in his conviction upon insufficient evidence. We disagree with each of these contentions and conclude that the judgment of conviction must be affirmed.
I
We first consider the defendant’s claim that the trial court improperly granted his motion to waive his right to counsel and to proceed pro se. The defendant presents two separate claims: (1) that the trial court incorrectly ruled that he was competent to make the decision to waive counsel; and (2) that even if he was competent, his waiver decision was not made knowingly, voluntarily and intelligently. Our analysis of these claims requires examination of the contours of the right to self-representation and of the relevant standards by which to measure a defendant’s decision to exercise that right.
Both the federal constitution and our state constitution afford a criminal defendant the right to forego the assistance of counsel and to choose instead to represent himself or herself at trial. As a matter of federal constitutional law, the right to self-representation is premised on “the structure of the Sixth Amendment, as well as in the English and colonial jurisprudence from which the Amendment emerged.”
Neither the federal nor the state constitution, however, requires that a defendant be permitted simultaneously to exercise the right to self-representation and the right to counsel. McKaskle v. Wiggins, supra, 465 U.S. 183; Gethers II, supra, 197 Conn. 382. Indeed,
“The right to appear pro se exists to affirm the dignity and autonomy of the accused and to allow the presentation of what may, at least occasionally, be the accused’s best possible defense.” McKaskle v. Wiggins, supra, 465 U.S. 176-77; see also Faretta v. California, supra, 422 U.S. 833-34 (allowing defendant to elect self-representation consistent with framers’ belief in “the inestimable worth of free choice”); State v. Carter, supra, 200 Conn. 613 (right “affords protection to the defendant’s interest in personal autonomy”). It is also consistent with the ideal of due process as an expression of fundamental fairness. “To force a lawyer on a defendant can only lead him to believe that the law contrives against him.” Faretta v. California, supra, 834.
We harbor no illusions that a defendant’s decision to waive counsel and proceed pro se generally will lead to anything other than disastrous consequences. See id., 838-39 (Burger, C. J., dissenting). Nonetheless, the values informing our constitutional structure teach that “although [a defendant] may conduct his own defense ultimately to his own detriment, his choice must be honored out of ‘that respect for the individual which is the lifeblood of the law.’ Illinois v. Allen, 387 U.S. 337 [350-51, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970)] (Brennan, J., concurring).” Faretta v. California, supra, 422 U.S. 834.
While a defendant has an absolute right to self-representation, that right is not self-executing. A trial court in this state must satisfy itself that several criteria have been met before a criminal defendant properly may be allowed to waive counsel and proceed pro se. “A waiver [of the right to counsel] will be accepted only after the judicial authority makes a thorough inquiry and is satisfied that the defendant: (1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled; (2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent himself; (3) Comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and (4) Has been made aware of the dangers and disadvantages of self-representation.” Practice Book § 961.
At the same time, we have recognized that this test “ ‘cannot be construed to require anything more for an effective waiver of counsel than is constitutionally mandated, because such a waiver triggers the constitutional right of an accused to represent himself.’ ” State v. Townsend, supra, 211 Conn. 220; Gethers I, supra, 193 Conn. 534. The multifactor analysis of § 961, therefore, is designed to assist the court in answering two fundamental questions: first, whether a criminal defendant is minimally competent to make the decision to waive counsel, and second, whether the defendant actually made that decision in a knowing, voluntary and intelligent fashion. See Molinas v. Commissioner of Correction, 231 Conn. 514, 523, 652 A.2d 481 (1994) (standards for waiver of constitutional right).
As the United States Supreme Court recently recognized, these two questions are separate, with the former
1
The defendant first claims that he was not competent to make the decision to waive the right to counsel. As a result, the defendant argues, he could not validly have waived that right despite his desire to do so. The trial court’s decision allowing him to proceed pro se, therefore, violated his right to counsel guaranteed under the sixth and fourteenth amendments to the federal constitution and article first, § 8, of the state constitution.
Our analysis of this claim begins and ends with the United States Supreme Court’s decision in Godinez v. Moran, supra, 509 U.S. 389. In that case, the court held that the same standard used to determine competency to stand trial also applies to determine competency to plead guilty or to waive the right to counsel. The decision is grounded in two posited equivalencies:
The United States Supreme Court’s opinion does not mandate a particular test for competency, explicitly recognizing that “[s]tates are free to adopt competency standards that are more elaborate” than the formulation used in federal court. Godinez v. Moran, supra, 509 U.S. 402; see Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960) (competency to stand trial in federal court depends on whether defendant “ ‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him’ ”). A state does not, therefore, impermissibly burden the exercise of the right to self-representation by adopting a competency standard more protective than the Dusky formulation. Whatever standard is employed, however, it must be applied equally at the various stages of a trial to pass constitutional muster.
For present purposes, however, the question is settled until such time as the United States Supreme Court chooses to revisit it. Under Godinez, we are bound to rule that a defendant who has been found competent to stand trial as a matter of state law also is competent to waive the right to counsel. Application of a stricter competency test in the latter analysis than was used in the former would place an unconstitutional burden on the exercise of the defendant’s federal constitutional right to self-representation.
In this case, the defendant repeatedly
2
Competency, however, involves only the first half of our analysis. Having determined that the defendant was competent to waive the right to counsel, we next must determine whether the trial court properly found that the defendant actually did waive that right in a knowing, voluntary and intelligent manner.
The trial court’s canvass of the defendant on his motion to waive appointed counsel and represent himself occupies twenty-nine pages of the printed transcript. During its canvass, the trial court specifically addressed each issue enumerated in Practice Book § 961, in addition to other factors recognized in our case law as bearing on the decision to waive counsel. See
With respect to the knowing and intelligent nature of his waiver, the defendant presents two arguments. First, he maintains that § 961 (2), by referring to the “intelligence and capacity to appreciate the consequences of the decision to represent himself,” imposes a threshold standard on a defendant seeking to waive counsel higher than simple competency to stand trial. This argument is foreclosed by our obligation to follow Godinez v. Moran, supra, 509 U.S. 389.
Next, the defendant asserts that the trial court’s inquiry into his understanding of “the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case”; Practice Book § 961 (3); was too superficial to support a constitutionally valid waiver of counsel. He also maintains that the trial court failed adequately to impress upon him the dangers inherent in self-representation. See Practice Book § 961 (4). As a result, he argues, the record is inadequate to support a finding of a constitutionally valid waiver of the right to counsel.
The defendant, however, misunderstands the nature of the inquiry that is required. “[A] defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation .... Faretta v. California, supra, [422 U.S.] 835. Rather, a record that affirmatively shows that [he] was literate, competent, and under
The defendant also argues, that we should look to events occurring after his waiver of counsel was accepted as evidence of his lack of understanding of the consequences of this decision at the time it was made. The defendant cites no authority, however, that such an inquiry is constitutionally compelled. We need not decide whether such an ex post facto inquiry is appropriate, however, because in this case none of the events relied upon by the defendant would change our conclusion that his decision was knowing and intelligent. Cf. United States v. Hurtado, 47 F.3d 577, 583 (2d Cir. 1995) (“fact that [defendant’s] decision to represent himself was ultimately unwise does not render it involuntary”).
With respect to the voluntary nature of his waiver decision, the defendant argues that the record does not indicate that he freely elected self-representation. In particular, the defendant points to a passage in the
“ 'When a defendant is faced with the choice of proceeding with counsel he is not entirely happy with or defending pro se, the trial judge must satisfy himself that if the defendant chooses to proceed pro se, he does so knowingly, with a full understanding of the risks involved.’ Cordoba v. Harris, 473 F. Sup. 643, 637 (S.D.N.Y. 1979).” Gathers II, supra, 197 Conn. 380-81. This requirement, in effect, simply restates the rule that a waiver of the right to counsel must be clear and unequivocal. Faretta v. California, supra, 422 U.S. 835; State v. Carter, supra, 200 Conn. 612, and cases cited
We accordingly reject the defendant’s challenge to the trial court’s decision allowing him to waive his right to counsel. We conclude that the defendant was competent to waive that right and that he did so in a knowing, voluntary and intelligent manner.
II
The defendant next argues that the trial court, Ronan, J., improperly accelerated his case to “on trial” status after the filing of his motion for a speedy trial pursuant to General Statutes § 54-82m.
The speedy trial motion was filed with the trial court on March 4,1991. Two days later, a hearing was held concerning the motion. At that time, the court noted that the motion “was effective on filing so it doesn’t require a court order.” See footnote 14. Although the defendant continued to be represented by counsel on these dates, the transcript also reflects that he had decided by that time to waive his right to counsel and to represent himself, and that the court was aware of his decision. The waiver occurred at the very next court date, less than three weeks later.
In light of these undisputed facts, to conclude that the defendant’s speedy trial motion was ineffective for lack of standing would elevate form over substance. If the speedy trial motion had been denied as filed, the defendant could, and by all indications would, have renewed the motion once he was representing himself.
Ill
The defendant’s next claim, and the centerpiece of his argument on appeal, is the assertion that the trial court improperly denied the defense motion for a mistrial once the defendant had abandoned self-representation and counsel once again had been appointed to represent him. In this court, as in the trial court, the defendant raises numerous grounds in support of his position that a mistrial should have been declared.
A
As a threshold matter, we must decide what standard governs our review of the trial court’s decision. This question arises because every issue cited in support of the contention that a mistrial should have been declared can be traced back, at least in part, to the defendant’s personal decision to waive counsel and represent himself. We therefore must determine whether
The state urges us to adopt the position that a trial court never can order a mistrial at the defense’s request when the errors or defects supporting the motion result from the defendant’s own deficient attempt at self-representation. To allow a mistrial on that basis, the state argues, inevitably will encourage abuses by defendants that will prejudice the orderly process of justice. According to the state, if such mistrials are permitted, virtually every defendant facing serious charges will first elect to proceed pro se, relying on the hope that if he or she sufficiently mismanages the defense, the court will order a new trial at which counsel would not make the same mistakes. This process in turn would lead, at the very least, to added delay and expense imposed on an already overburdened court system. The state maintains that only a per se rule prohibiting mistrials in these circumstances can avoid the incentives leading to this untoward result. We are unpersuaded.
The state’s position relies on two implicit premises of questionable validity. The first is its assumption that criminal defendants generally are animated by a desire to delay the ultimate adjudication of their guilt, and that they will elect self-representation to procure that delay. The facts of this very case, however, belie the universality of that proposition. It is undisputed that the defendant himself, over the objections of his own counsel, filed a speedy trial motion to accelerate his trial date. See part II of this opinion. The record of this case also reflects that one reason the defendant dismissed his attorneys, when they were first appointed to represent him, was their declared unwillingness to proceed directly to trial as he desired. At least in this
The second premise underlying the state’s position is its assumption that defendants are willing to risk the abandonment of possibly meritorious claims or defenses, as a result of their own inexperience, in the pursuit of delay. Otherwise, they would not forgo the assistance of counsel in a first trial when the chances of securing a mistrial were uncertain. We recognize that the federal courts indulge a similar hypothesis to deny review in habeas corpus proceedings of claims subject to state court procedural default rules. See Wainwright v. Sykes, 433 U.S. 72, 89, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977) (positing “sandbagging” as strategic choice underlying procedural defaults). The soundness of this proposition, however, has been seriously questioned. See id., 101-104 (Brennan, J., dissenting); E. Chemerinsky, Federal Jurisdiction (1989) § 15.5, p. 706. In any case, the presumptions governing federal collateral review of state criminal convictions involve a host of considerations that this case does not present.
As a general rule, the decision whether to declare a mistrial is committed to the sound discretion of the trial court. Practice Book § 887;
B
We therefore must address the defendant’s challenge by determining whether the trial court in this case abused its discretion in denying the defendant’s motion for a mistrial. Having thoroughly reviewed the transcript of the trial court proceedings, we conclude that the trial court’s decision did not constitute an abuse of discretion.
While the remedy of a mistrial is permitted under the rules of practice, it is not favored. “[A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided.” (Citations omitted; internal quotation marks omitted.) State v. Wooten, supra, 227 Conn. 693-94. On appeal, we hesitate to disturb a decision not to declare a mistrial. “ ‘The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome.’ ” State v. Rodriguez, 210 Conn. 315, 333, 554 A.2d 1080 (1989); State v. Bausman, 162 Conn. 308, 312, 294 A.2d 312 (1972). The trial court is better positioned than we are to evaluate in the first instance whether a certain occur
As a result, we have affirmed the denial of a mistrial motion under § 887 in numerous cases despite the occurrence of events arguably prejudicial to the defendant. See, e.g., State v. Wooten, supra, 227 Conn. 689-96 (improper in-court identification of defendant); State v. Canty, 223 Conn. 703, 720-22, 613 A.2d 1287 (1992) (improper prosecutorial comment on missing witnesses); State v. Rodriguez, supra, 210 Conn. 333 (juror approached by defendant out-of-court subsequently excused from panel before sworn and testified for state); State v. Gaston, 198 Conn. 490, 496, 503 A.2d 1157 (1986) (improper admission of evidence). Only in extraordinary circumstances have we overturned a trial court’s denial of a mistrial under § 887. See, e.g., State v. Hancich, 200 Conn. 615, 626, 513 A.2d 638 (1986) (trial court, having told defendant he would have eight peremptory challenges, reduced number to four after defendant already had exercised four, and defendant testified that he would not have excused earlier jurors); State v. Binet, 192 Conn. 618, 625-34, 473 A.2d 1200 (1984) (deliberate prosecutorial misconduct); State v. Ubaldi, 190 Conn. 559, 564-75, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983) (same).
The defendant in this case was not entitled to a mistrial simply on the basis of his attempt at, and then abandonment of, self-representation. Indeed, to a large
Nonetheless, even though prejudice to a defendant arises from his or her own conduct following a waiver of counsel, the specific events that transpired thereafter may require a court to order a mistrial. We therefore turn to the specific allegations of prejudice raised by the defendant in this case.
During the period when the defendant represented himself, he unsuccessfully argued motions to prohibit juror death qualification, to suppress his confession to agents of the FBI, and to change venue. In each instance, standby counsel was present for consultation or, in the alternative, to make the legal argument on the defendant’s behalf if he so requested. In support of the motion to prohibit juror death qualification, defense counsel had, prior to the defendant’s decision to proceed pro se, filed a detailed fifty-five page memorandum of law that remained before the court. For the motion to change venue, standby counsel, on order of the court, issued subpoenas and gathered evidence for purposes of demonstrating that pretrial publicity necessitated a transfer to ensure a fair trial. On the suppression issue, the court specifically invited counsel upon reappointment to introduce any other evidence relevant to the admissibility of the confession.
Furthermore, although the defendant cites his failures in arguing these motions as examples of prejudice arising from his pro se performance that required a declaration of mistrial, he does not explain why the trial court’s decisions on the underlying motions were improper. This omission is particularly revealing, since
The defendant also conducted the full voir dire.
The defendant also personally cross-examined the four witnesses presented by the state during the first day of the trial. In one instance, the defendant’s questioning elicited from Gloria S. that when she had asked two year old Marcus G. if the defendant was responsible for his injuries, he had responded: “Yes, Jason hurt me. Jason hurt me.” In the mistrial motion before the trial court, defense counsel argued that, had they been representing the defendant during Gloria S.’s testimony, they “would have made a good faith effort to bar . . . those statements from becoming evidence in this case.” Defense counsel does not suggest, however, that these statements actually would have been barred. See, e.g., State v. Stange, 212 Conn. 612, 617-20, 563 A.2d 681 (1989) (no error in admitting, under Spontaneous utterance exception to hearsay rule, victim’s answers to series of questions asked by police officer as long as thirty minutes after shooting by defendant), and authorities cited therein; State v. Sharpe, 195 Conn. 651, 664, 491 A.2d 345 (1985) (residual hearsay exception).
The defendant also relies on the speedy trial motion to demonstrate prejudice requiring a new trial. To the extent that this claim relates to the defendant's self-representation, there has been no showing that the defendant wanted to conduct any further preparation before going to trial, or that his failure to do so prejudiced his performance as counsel. The claim also fares no better with respect to the defendant’s attorneys. They had nine months to prepare before the trial began. If that amount of time proved inadequate, the proper remedy was a continuance, not a mistrial. See part V of this opinion.
A pro se defendant’s performance, in all likelihood, will be imperfect. That lack of professionalism does not suggest, however, that every pro se defendant who subsequently regrets the decision to waive counsel should be afforded a new trial. Indeed, the very reason a trial court must inform a prospective pro se defendant of the risks inherent in self-representation is that the
The trial court, which had the benefit of observing the proceedings firsthand, concluded that none of the alleged missteps in the defendant’s odyssey into self-representation demonstrated sufficient irreparable prejudice to require a mistrial. “It bears emphasis that our review of this matter is governed by an abuse of discretion standard that, although not unreviewable, affords the trial court broad discretion .... Therefore, the question is not whether any one of us, had we been sitting as the trial judge, would have exercised our discretion differently. Our role as an appellate court is not to substitute our judgment for that of a trial court that has chosen one of many reasonable alternatives.” (Citation omitted.) State v. Hamilton, supra, 228 Conn. 250. Although it might have been within the court’s discretion to have granted a mistrial on this record, the court was not required to do so.
IV
The defendant next challenges two rulings by the trial court during the voir dire, each of which, he maintains, deprived him of his right to a fair trial. The first claim relates to the trial court’s purportedly improper denial of a challenge for cause. The second claim relates to the court’s denial of additional peremptory challenges to the defendant once he had exhausted his allotment. We reject both claims.
A
The claim relating to the for cause challenge concerns a prospective juror who was employed by the Superior Court as a law clerk, assigned to Waterbury, and who formerly had been an intern in the public defender’s office. Through these experiences he was familiar with assistant state’s attorney Jonathan Benedict, the pros
“[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors.” (Internal quotation marks omitted.) Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961); State v. Tucker, 226 Conn. 618, 630, 629 A.2d 1067 (1993); State v. Cubano, 203 Conn. 81, 88, 523 A.2d 495 (1987); State v. Ziel, 197 Conn. 60, 64, 495 A.2d 1050 (1985). Primary responsibility for securing this guarantee rests with the trial court. See General Statutes § 54-82f (voir dire for cause challenges); Practice Book § 848. “ ‘[T]he trial court is vested with wide discretion in determining the competency of jurors to serve, and that judgment will not be disturbed absent a showing of an abuse of discretion.’ ” State v. Esposito, 223 Conn. 299, 310, 613 A.2d 242 (1992); State v. Cubano, supra, 88-89.
B
The defendant’s second claim relating to jury selection involves peremptory challenges. When the voir dire began, in accordance with the applicable state statute, the trial court informed each side that it would have thirty peremptory challenges. See General Statutes § 54-82h. As the voir dire progressed, the defendant made several requests for additional challenges, each of which was denied.
In accordance with constitutional mandate; see footnote 27; state statutes establish the minimum number of peremptory challenges to which a criminal defendant charged with a particular class of crime is entitled. See General Statutes §§ 54-82g and 54-82h. A trial court may allow the parties more peremptory challenges than provided by law. See, e.g., State v. Crafts, 226 Conn. 237, 260 n.16, 627 A.2d 877 (1993); State v. Mercer, 208 Conn. 52, 61, 544 A.2d 611 (1988); State v. Miller, 202 Conn. 463, 480, 522 A.2d 249 (1987); State v. Hancich, supra, 200 Conn. 626. We never have held, however, that a trial court’s denial of a request for additional peremptory challenges, without more, constituted an abuse of discretion. See, e.g., State v. Tucker, supra, 226 Conn. 644 (no abuse of discretion); State v. Marra, 195 Conn. 421, 432, 489 A.2d 350 (1985) (no abuse in denying request for additional peremptory challenges “[ajbsent a showing that this ruling resulted in a jury that could not sit impartially on the defendant’s case”); cf. State v. Esposito, supra, 223 Conn. 313 (grant of additional peremptories could have cured earlier error by court); State v. Hancich, supra, 626 (same).
Y
The defendant’s next claim concerns his request for a continuance once the court had declined to declare a mistrial following the reappointment of counsel. In his written motion, the defendant had requested a sixty day continuance. At oral argument, he reduced the request to thirty days. The trial court granted a continuance for two weeks.
Trial courts are afforded broad discretion in matters of continuances. State v. Hamilton, supra, 228 Conn. 250; State v. Aillon, 202 Conn. 385, 394, 521 A.2d 555
In both this court and the trial court, the defendant cited the need to conduct research, investigation and various tests in support of his continuance motion, all of which had been suspended by counsel during the period of the defendant’s self-representation. The trial court indicated that it had weighed these factors in determining the length of the continuance that it granted. Against these factors, the court also considered its interests in the orderly progress of the trial. Since the jury already had been impaneled and the state had begun to present its evidence, these considerations were of significant weight. See State v. Hamilton, supra, 228 Conn. 247; State v. Beaulieu, supra, 164 Conn. 627-28. While there is no evidence that the continuance was sought with the intent of delaying the proceedings, that fact alone is not controlling. State v. Hamilton, supra, 247 n.12; State v. Beckenbach, supra, 198 Conn. 50.
The defendant has not indicated any specific instances of prejudice resulting from the court’s grant of a continuance for two weeks rather than one month. We therefore will not second-guess the trial court’s determination of the appropriate duration for a continuance. See State v. Hamilton, supra, 228 Conn. 250. Accordingly, we hold that the trial court acted within its discretion.
The defendant’s final claim concerns the “two witness” rule codified at General Statutes § 54-83, which provides that “[n]o person may be convicted of any crime punishable by death without the testimony of at least two witnesses, or that which is equivalent thereto.” Although the defendant neither requested the trial court to charge on the statute nor excepted to the jury charge as given, he now claims that the court’s failure to instruct the jury on the rule requires that his conviction be reversed. We disagree.
As we recognized in State v. Ross, 230 Conn. 183, 219, 646 A.2d 1318 (1994), cert. denied, U.S. 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995), § 54-83 is a statutory enactment that prescribes the nature of the evidence that the state must adduce to prove its case. Unlike the reasonable doubt rule; In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) (due process requires proof beyond reasonable doubt in criminal cases); Summerville v. Warden, 229 Conn. 397, 422-23, 641 A.2d 1356 (1994) (same); the evidentiary burden imposed by § 54-83 is not constitutionally compelled. See State v. Ross, supra, 219 (two witness rule is a “statutory” mandate).
The defendant also asserts that his conviction must be reversed under the plain error doctrine. See Practice Book § 4185.
The defendant cannot prevail under § 4185, however, unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. We repeatedly have observed that plain error is not even implicated unless “the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Boles, 223 Conn. 535, 551, 613 A.2d 770 (1992) (insufficient evidence to make court’s failure to give accomplice charge plain error); State v. Wright, 207 Conn. 276, 288-89, 542 A.2d 299 (1988) (in context of plea found to be knowingly and voluntarily entered, court’s failure to advise defendant of mandatory minimum sentence not plain error); State v. Miller, supra, 202 Conn. 469 (defective oaths to voir dire panel
This court in the past has concluded that some jury instructions that improperly omitted reference to relevant statutory rights constituted plain error justifying reversal. See, e.g., State v. Preyer, supra, 198 Conn. 199 (failure to charge on General Statutes § 53a-67 [b], which provides affirmative defense of cohabitation to sexual assault charge); State v. Burke, 182 Conn. 330, 331-32, 438 A.2d 93 (1980) (failure to charge on General Statutes § 54-84, which requires instruction that
In this case, we conclude that, although the defendant had a statutory entitlement to an instruction on § 54-83; see State v. Boss, supra, 230 Conn. 219; the trial court’s failure to charge on the statute did not result in manifest injustice. To begin with, the defendant’s claim relates to an omission in the jury instructions, which is less likely to be prejudicial than is a misstatement of the law. Henderson v. Kibbe, 431 U.S. 145, 155, 97 S. Ct. 1730, 52 L. Ed. 2d 203 (1977); State v. Preyer, supra, 198 Conn. 198. Furthermore, while colloquially referred to as the “two witness” rule, our cases establish that § 54-83 does not actually require the testimony of two eyewitnesses in order for the jury to convict in a death-eligible prosecution. State v. Boss, supra, 219; State v. Malm, 142 Conn. 113,118-19, 111 A.2d 685 (1955); State v. Taborsky, 139 Conn. 475, 483-85, 95 A.2d 59 (1953). The statute, which explicitly allows the state to have recourse to “equivalent” evi
In presenting its case, the state introduced autopsy reports for the victims that attributed their deaths to gunshot wounds to the head. Agents of the FBI testified that the defendant had confessed to the murders. Gloria S. testified that, two weeks before the murders, the defendant had threatened to kill everyone living in the apartment if Lisa G. attempted to leave him. The defendant’s fingerprints were found on the handle of the shovel used to bludgeon Theresa H. From the car that the defendant admitted driving to the hospital in New York, the police recovered a gun, belonging to Raymond G., which the defendant had been seen to handle on many prior occasions. Ballistics tests demonstrated that the eight shell casings recovered from the murder scene had been fired by that gun.
In light of the overwhelming direct and circumstantial evidence corroborating the defendant’s confession, we are persuaded that the defendant cannot meet his burden. Accordingly, since it is not more likely than not that the trial court’s failure to instruct on § 54-83 affected the verdict, the defendant cannot prevail on his claim of plain error.
VII
Although we affirm the judgment of conviction in this case, the proceedings in the trial court also have convinced us of the need for a reexamination of the role of standby counsel. Our rules of criminal procedure, as currently written, provide an extremely limited role for standby counsel. See Practice Book §§ 962 through
At the outset, we locate our concerns within the general constitutional landscape. As the dissenters in Faretta v. California, supra, 422 U.S. 836, stressed, the state has an independent interest in the reliability of criminal verdicts that transcends its role as an adversary. “Although we have adopted an adversary system of criminal justice . . . the prosecution is more than an ordinary litigant, and the trial judge is not simply an automaton who insures that technical rules are adhered to. Both are charged with the duty of insuring that justice, in the broadest sense of the term, is achieved in every criminal trial.” (Citation omitted.) Id., 839 (Burger, C. J., dissenting); see also id., 849 (Blackmun, J., dissenting) (“the interest of the [s]tate in a criminal prosecution ‘is not that it shall win a case, but that justice shall be done’ ”).
Subsequent case law has recognized, however, that standby counsel can serve a more active role and exercise a larger degree of independent initiative without infringing the right to self-representation. “The pro se defendant must be allowed to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial.” McKaskle v. Wiggins, supra, 465 U.S. 174. The United States Supreme Court has clarified, nonetheless, that actions by standby counsel that do not amount to limitations on the pro se defendant’s own actions are permissible. “[N]o absolute bar on standby counsel’s unsolicited participation is appropriate or was intended. ... In determining whether a defendant’s Faretta rights have been respected, the primary focus must be on whether the
In striking the balance between the pro se defendant’s rights and the permissible role of standby counsel, the United States Supreme Court articulated two overarching principles. “First, the pro se defendant is entitled to preserve actual control over the case he chooses to present to the jury. . . . Second, participation by standby counsel without the defendant’s consent should not be allowed to destroy the jury’s perception that the defendant is representing himself.” Id., 178. The court also recognized that the weight to be accorded the competing concerns of the pro se defendant’s autonomy, on the one hand, and standby counsel’s position as supplemental guarantor both of the defendant’s rights and of the integrity of the trial process, on the other, depended in part on whether standby counsel’s activities occurred in the presence of the jury. Id., 179; see also id., 179-85 (whether defendant consented to standby counsel’s conduct, and whether disagreements between standby counsel and pro se defendant are resolved in defendant’s favor whenever matter normally would be left to discretion of counsel).
We need not explore in detail the specific holdings of the McKaskle decision. For our purposes here, it suffices to recognize that the United States Supreme Court has sanctioned a definition of the role of standby counsel that significantly exceeds the limits imposed by Practice Book § 964. Exercising our inherent authority to safeguard the administration of justice in this state, we urge the standing committee on rules to consider the formulation of new standards that provide for
The judgment of the trial court is affirmed.
In this opinion Callahan, Katz and Palmer, Js., concurred.
General Statutes § 53a-54b provides in relevant part: “capital felony. A person is guilty of a capital felony who is convicted of any of the following ... (8) murder of two or more persons at the same time or in the course of a single transaction.”
General Statutes § 53a-54a provides in relevant part: “murder, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the
General Statutes § 53a-61 provides in relevant part: “assault in the third degree: class A misdemeanor, (a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or (2) he recklessly causes serious physical injury to another person; or (3) with criminal negligence, he causes physical injury to another person by means of a deadly weapon, a dangerous instrument or an electronic defense weapon.”
The original information also charged the defendant with risk of injury to a child in violation of General Statutes § 53-21 and carrying a pistol without a permit in violation of General Statutes §§ 29-35 and 29-37 (b). After the evidentiary portion of the trial had concluded but prior to the jury deliberations, the state filed a substitute information withdrawing those counts.
General Statutes § 53a-46a provides in relevant part: “hearing on imposition of death penalty, aggravating and mitigating factors. . . . (f) ... If the jury or, if there is no jury, the court finds that none of the [aggravating] factors set forth in subsection (h) exist . . . the court shall impose a sentence of life imprisonment without the possibility of release . . . .”
General Statutes § 51-199 (b) provides in relevant part: “The following matters shall be taken directly to the supreme court ... (3) an appeal in any criminal action involving a conviction for capital felony . . . .”
With the exception of the speedy trial motion; see part II of this opinion; all trial court proceedings mentioned in this opinion occurred before McKeever, J.
The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.”
Because denial of the right to counsel constitutes a structural defect rather than a trial error, it is not subject to harmless error analysis. See Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S. Ct. 1246,113 L. Ed. 2d 302 (1991) (Rehnquist, C. J.); Chapman v. California, 386 U.S. 18, 23 and n.8, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).
“Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. . . . Second, is the right to trial by jury. . . . Third, is the right to confront one’s accusers.” (Citations omitted.) Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).
Prior to Godinez, courts were split on the question whether to apply varying standards of competency. See cases cited in Godinez v. Moran, supra, 509 U.S. 395 n.5; Myers v. Manson, supra, 192 Conn. 391 n.8.
A team of state examiners first evaluated the defendant on March 21, 1991. They found the defendant competent to stand trial under both prongs of General Statutes § 54-56d “without qualifications.” Following a second evaluation held on June 25,1991, in which two of the three clinicians who had conducted the first evaluation participated, the team concluded that the defendant was able to understand the proceedings against him, but it was unable to decide whether he was able to assist in his own defense. The
General Statutes § 54-56d provides in relevant part: “(Formerly Sec. 54-40). COMPETENCY TO STAND TRIAL, (a) COMPETENCY REQUIRED. DEFINITION. A defendant shall not be tried, convicted or sentenced while he is not competent. For the purposes of this section, a defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense.”
The defendant filed a motion for a mistrial on July 11,1991, following the second competency evaluation; see footnote 9; on the ground that he was incompetent during the trial. That motion was denied, and the defendant has not renewed that claim on appeal.
The defendant’s statement was made during the following colloquy with the trial court:
“The Defendant: I—I am not really trying to impress upon the court that I really wholeheartedly—that I can stand up and meet the challenge of the situation and that is to say that if I could have a lawyer I would.
“The Court: You can have a lawyer. Maybe I didn’t understand you. “The Defendant: Excuse me. On my own—at my own expense then I would but just as what you just said of fool, a fool represents himself or to say nothing less, I think that I would be just a biggest fool as to put my life in the hands of attorneys who are appointed by the state against the state, I think one hand washes the other and regardless of what the situation may be, that is my situation.
“The Court: Well let me tell you that it is the opinion of the court that you are totally, absolutely wrong if you feel that because you have the benefit of the public defenders that that places you at some disadvantage. I have had personal experiences with Mr. Holden on many, many occasions and I frankly would consider Mr. Holden to be one of the finest trial lawyers in this state.”
The trial court repeatedly informed the defendant during the period when he was representing himself that he could have counsel reappointed at any time simply by asking. When the defendant requested at the start of the second day of the trial that his original attorneys be reappointed, that request was granted immediately.
General Statutes § 54-82m provides: “rules re speedy trial to be ADOPTED BY JUDGES OF SUPERIOR COURT EFFECTIVE JULY 1; 1985. In accordance with the provisions of section 51-14, the judges of the superior court shall make such rules as they deem necessary to provide a procedure to assure a speedy trial for any person charged with a criminal offense on or after July 1,1985. Such rules shall provide that (1) in any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of a criminal offense shall commence within twelve months from the filing date of the information or
Practice Book § 956B provides in relevant part: “[SPEEDY trial]—time LIMITATIONS. . . .
“(b) Except as otherwise provided herein and in Sec. 956C, the trial of a defendant charged with a criminal offense on or after July 1, 1985 . . . shall commence within eight months from the filing of the information or from the date of the arrest, whichever is later, if the following conditions are met:
“(1) the defendant has been continuously incarcerated in a correctional institution of this state pending trial for such offense; and
“(2) the defendant is not subject to the provisions of Gen. Stat., § 54-82c. . . .”
We disagree with the state’s argument that this issue was not properly preserved for appeal. Defense counsel reported to the court during the hearing on March 6, 1991, that counsel was taken by surprise by the motion and was not prepared at that time to respond. For the next court date, defense counsel had prepared a detailed motion and supporting mem
Because the waiver of counsel was constitutionally valid, we reject the defendant’s argument that his subsequent request for reappointment of counsel voided any ratification of the speedy trial motion that had been effected by his waiver.
The defendant’s claim is that the mistrial was required as a matter of due process. Cf. Faretta v. California, supra, 422 U.S. 834-35 n.46 (“whatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of ‘effective assistance of counsel’ ”).
Practice Book § 887 provides in relevant part: “[proceedings at TRIAL-MISTRIAL]--FOR PREJUDICE TO DEFENDANT
“Upon motion of a defendant, the judicial authority may declare a mistrial at any time during the trial if there occurs during the trial an error or legal defect in the proceedings, or any conduct inside or outside the courtroom which results in substantial and irreparable prejudice to the defendant’s case.”
Even if we assume, as the dissent does, that a special capital felony rule requires the application of a more rigorous standard of review to a trial court’s denial of a mistrial motion; see pp. 862-68 of the dissenting opinion; such a rule surely would be confined to cases, unlike this one, in which the defendant actually was sentenced to death.
Prosecutorial misconduct generates “prejudice to the judicial system as well as to the defendant,” creating an added need to declare a mistrial to deter counsel and to “prevent such assaults on the integrity of the tribunal.” State v. Ubaldi, supra, 190 Conn. 574-75.
On appeal, the defendant places great emphasis on the prejudice arising from a situation in which he purportedly incriminated himself to a venireman who was accepted for the jury. The record does reflect that the defendant stated to this prospective juror that during the trial he would be shown a photograph “of a kid, a five year old kid I shot,” and that this venireman initially was accepted for the jury. Before the trial began, however, this juror was excused by the court for personal reasons. We accordingly have no occasion to determine whether, had the juror actually been seated for the trial, a failure to grant a mistrial under the facts of this case would have constituted an abuse of discretion.
In the first instance, the defendant had accepted the final venireman questioned on the first day of voir dire, apparently under the misapprehension that the phrase “one day, one trial” required that at least one juror be selected each day. On the following day, before any other prospective jurors were questioned, the court allowed the defendant to exercise a peremptory challenge to excuse that juror.
In the second instance, the defendant had accepted a juror whom, he subsequently learned, had been an FBI agent. Over the state’s objection, the court again was going to permit the defendant to exercise a peremptory challenge retroactively to dismiss that juror. F'ollowing further reflection and both the state’s and the court’s observation that “the juror probably ■would be an excellent one,” however, the defendant then decided not to excuse him.
Some eighteen other prospective jurors also were excused for cause for indicating that their opposition to the death penalty would preclude them from participating in a decision that would result in a sentence of death, even if it were legally appropriate.
The record does not support the dissent’s suggestion that Marcus G.’s statement “[does] not qualify as either spontaneous, xmreflective or trustworthy.” See p. 878 of the dissenting opinion. At the time, Marcus G. was a two year old boy who had just witnessed the murder of four people, includ
Because the defendant exhausted his supply of peremptory challenges before the end of voir dire, and additional challenges were sought and denied, he has standing to raise this claim on appeal, as the state concedes. See, e.g., State v. Tucker, 226 Conn. 618, 632, 629 A.2d 1067 (1993); State v. Esposito, 223 Conn. 299, 303, 613 A.2d 242 (1992).
The trial court informed the defendant, in denying Ms first request for additional challenges, “that on many, many occasions I have excused the juror without you ever making a request for cause or Mr. Benedict making a request for cause and this has all been done to ensure that you get as fair a trial as I can possibly arrange. I will continue to do that.”
Article first, § 19, of the Connecticut constitution, as amended by article IV of the amendments, provides in relevant part: “In all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law. . .
At that time, the court indicated to defense counsel that it would consider further continuance motions, as necessary, if the case were to proceed to a capital penalty phase. When the trial resumed after the two week continuance, the defendant renewed his previous request for a full thirty day continuance. That request again was denied. The penalty phase, however, did not commence until three months after the guilty verdicts were returned.
Although the defendant attempts to argue that the rule derives from article first, §§ 8 and 9, of the state constitution, his analysis of this claim involves nothing more than the bare assertion, contained in a single sentence, that the long-standing history of the statute makes it “incorporated in the state constitutional guarantees of due process and ordered liberty.” This cursory briefing is insufficient to raise an independent state constitutional claim for review, and we therefore decline to address it. See State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992).
Practice Book § 4185 provides in relevant part: “ERRORS CONSIDERED “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court.”
Nothing in State v. Yurch, supra, 229 Conn. 516, is to the contrary. The test applied in that case to determine whether the defendant could prevail on his claim of plain error was functionally indistinguishable from the test we apply here. The phrasing we use today, moreover, emphasizes that the core of the plain error doctrine, like the Golding doctrine, concerns whether a defendant can prevail on the merits of a claim, not simply whether the claim can be reviewed. See, e.g., State v. Kulmac, supra, 230 Conn. 74 n.19; see also State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989) (establishing criteria to determine if defendant can prevail on unpreserved constitutional claim; final criterion is that claim would survive harmless error analysis).
Because of the constitutional underpinnings of § 54-84; see, e.g., State v. Sinclair, 197 Conn. 574, 582-83, 500 A.2d 539 (1985) (failure to charge on § 54-84 infringes right against self-representation); our decision in Burke more properly should be understood in light of our rule permitting review of unpreserved constitutional claims rather than the plain error doctrine. See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 829 (1989) (clarifying doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 [1973]).
Practice Book § 963 provides: “[right to counsel —standby counsel FOR DEFENDANT REPRESENTING HIMSELF]--APPOINTMENT
“When a defendant has been permitted to proceed without the assistance of counsel, the judicial authority may appoint standby counsel, especially in cases expected to be long or complicated or in which there are multiple defendants.”
Practice Book § 964 provides: “[right to counsel —standby counsel FOR DEFENDANT REPRESENTING HIMSELF]--ROLE
“If requested to do so by the defendant, the standby counsel shall assist the defendant. If there is no objection by the defendant, such counsel may also call the judicial authority's attention to matters favorable to the defendant. Such counsel shall not interfere with the defendant’s presentation of the case and may give advice only upon request.”
We do not mean to suggest that the current rules in any way infringed the defendant’s constitutional rights. Standby counsel enters a criminal proceeding only once the right to counsel has been validly waived. As we already have discussed, the defendant effected such a waiver at the time he elected to represent himself. See part I of this opinion. Our concern here, rather, rests with the societal interests discussed more fully in the body of the opinion.
Dissenting Opinion
dissenting. I disagree with much of the majority’s analysis in this capital murder case, in which the state sought the death penalty for the defendant, Jason Day. Nevertheless, I reach only one issue. In my view, the defendant’s conviction must be reversed and a new trial ordered because the trial court failed to grant the defendant’s motion for a mistrial.
I
Before embarking on an analysis of the precise legal issues involved, it is helpful to begin with a more thorough understanding of the procedural background of the case and of the factual circumstances that led up to the defendant’s motion for mistrial.
The defendant initially was taken into police custody on March 23,1990, when he was arrested in Maryland on suspicion of committing multiple murders in Connecticut.
The defendant was incarcerated prior to trial under conditions that were very oppressive. Because of the nature of the crimes of which the defendant was accused, many inmates threatened him and repeatedly warned prison officials that the defendant’s safety was in danger. The state department of correction continually shuffled the defendant between prisons in an attempt to keep him safe. The deputy warden at the correctional center at Cheshire testified that “there were many, many uprisings [in response to the defendant’s presence]. In fact, when he came through one of the blocks, the [inmates housed in the] blocks started ranting and raving and screaming against him.” When he was at Cheshire, prison officials housed him in a separate cell, apart from the other inmates, and he was not allowed to mingle with the other prisoners. At times when it was necessary for the defendant to leave his cell, two prison officials would escort him in order to assure his safety.
After the defendant had been incarcerated under these conditions for nearly one year, he filed a pro se motion for a speedy trial pursuant to General Statutes § 54-82m and Practice Book § 956B.
Two weeks later, after being declared competent to stand trial, the defendant asked the court on March 26, 1991, to allow him to represent himself and to discharge the two public defenders assigned to represent him. At a hearing on this motion that same day, the defendant explained why he had filed the motion. “[It is] not that I felt they couldn’t do the job, it is just that at the time I am ready to have this issue dealt with, they felt that they are not ready or adequate. So I asked the question, if I wait are you guaranteeing me a win, [and they answered] no we are not, then what is the sense in me waiting if it is not to be. I will do it now and if I have to do it myself then so be it.” At this same hearing, however, the defendant indicated his distrust of the public defenders and his hope that he could contact a private attorney to help represent him. “[I]f I got in touch with someone in time, probably by—at least by the time that my jury was picked, maybe I could have someone to come in as standby counsel that will represent me and could possibly file an appearance on my behalf but not to speak with me but just that I can confer with him to make sime that my rights are not being denied or violated while the trial is taking place. . . . I think that I would be just a biggest fool as to put my life in the hands of attorneys who are appointed by the state against the state, I think one hand washes the other and regardless of what the situation may be, that is my situation.”
The defendant served as his own counsel for only two days, including the first day of jury selection, before having second thoughts. On Thursday, March 28,1991, one of the public defenders appointed as standby counsel informed the court that the defendant “has realized during the course of yesterday’s proceedings that his inexperience in courtroom matters, particularly jury selection, and his lack of knowledge regarding legal proceedings places him at a disadvantage in the selection of the jury and so he feels that he should not proceed any further on his own and wishes to have this continuance so that he could have the opportunity to attempt to obtain private counsel over the weekend, Your Honor.” The trial court granted a continuance until the following Monday so that the defendant could seek out private counsel. The defendant, however, failed to obtain private counsel and continued to represent himself after the weekend.
I agree with the majority that, as a general rule, the decision whether to declare a mistrial lies in the sound discretion of the trial court. State v. Hill, 201 Conn.
Moreover, in a case where the state is seeking the death penalty against a defendant, I believe that the trial court’s range of permissible discretion must be construed more narrowly. The trial court’s decision at
Applying this stricter standard to this capital felony case, I conclude that the trial court was required to grant the defendant’s motion for a mistrial for two reasons: (1) the defendant had not been competent to
A
I disagree with the majority’s narrow approach to the issue of the defendant’s competency. The majority considers his competency only in the context of whether he could have waived his federal constitutional right to counsel and chosen to represent himself. In my view, however, we must also consider the defendant’s competency when reviewing the trial court’s refusal to grant a mistrial after the defendant had relinquished the reins of self representation and had accepted the services of court-appointed attorneys. Moreover, I believe that our capacity to consider the defendant’s competency at this latter stage is not proscribed by any federal constitutional rule.
At the outset, I agree with the majority that, in reviewing whether a trial court properly allowed a defendant to waive his federal constitutional right to counsel and to represent himself, we are bound by the decision of the United States Supreme Court in Godi-nez v. Moran, 509 U.S. 389, 398-99, 113 S. Ct. 2680, 125 L. Ed. 2d 321 (1993). That decision holds that a state must apply the same test of competency to whether a defendant may waive his right to counsel as it does to whether a defendant may stand trial. Id., 398. Because this state determines a person’s competence to stand trial by asking whether he is able to understand the proceedings against him and to assist in his own defense; General Statutes § 54-56d (a);
The rule of Godinez, however, does not prohibit us from taking into consideration a defendant’s degree of competence later in the proceedings, after he has come to his senses and is willing to allow an attorney to represent him. As Justice Blackmun pointed out in his dissent in Godinez, the law always has “recognized that a defendant’s mental condition may be relevant to more than one legal issue, each governed by distinct rules reflecting quite different policies.” (Internal quotation marks omitted.) Godinez v. Moran, supra, 509 U.S. 413. Indeed, once the defendant has realized that he cannot and should not represent himself, the federal constitutional constraints of the Godinez rule vanish. As the majority aptly points out, that rule exists because “[application of a stricter competency test in the [waiver of counsel] analysis than was used in the [competency to stand trial analysis] would place an unconstitutional burden on the exercise of the defendant’s federal constitutional right to self-representation.” Once the defendant relinquishes the reins of self-representation and counsel is reappointed for him, however, we need no longer concern ourselves with burdening that right. Therefore, without regard to whether the defendant was competent to stand trial, the trial court should have taken into account the defendant’s actual degree of competency in determining whether justice required that a mistrial be granted.
The record in this case clearly reveals that, although the defendant may have been competent to stand trial, he surely was not competent to decide whether to represent himself. Charles A. Opsahl, a clinical psychologist and assistant clinical professor at Yale Medical School, conducted both psychological and neuro-
Furthermore, given this psychological and neuro-psychological profile of the defendant, it is easy both to discern the steps that led up to his decision to represent himself and to understand that he did not make this decision competently or voluntarily, as we understand those terms. He had been incarcerated for nearly one year under oppressive prison conditions. His fellow inmates screamed at him and threatened his life, and he had to be locked in a separate cell for his own protection. Such an environment, the equivalent of solitary confinement, could be devastating even for a person without the defendant’s psychological problems.
B
Moreover, the trial court should have granted the defendant’s motion for a mistrial on the basis of what had occurred during the time that the defendant represented himself. Indeed, although the defendant represented himself only through the first day of the presentation of evidence, it is apparent from the record that his attempts at jury selection and cross-examination were total disasters that irreparably affected the remainder of his trial and prejudiced his defense.
The defendant’s use of peremptory challenges obviously was not informed. He accepted one individual as a juror without asking any questions whatsoever, because he was under the mistaken impression that he was required to accept at least one prospective juror per day.
Standby counsel offered little or no help to the defendant during this phase of the proceedings. Their involvement was so limited that the prosecutor, concerned that this was a capital felony prosecution for which the state was seeking the death penalty, asked the court to require them to take a more active role and to assist the defendant in the jury selection. The prosecutor stated that “[w]hat we are doing is we are prosecuting somebody for a crime that has occurred in the city of Bridgeport and it is the state’s position that what has happened thus far is inadequate and inappropriate and I would ask that the court enter orders seeing that Mr. Day receives continuing and more active legal representation.”
Despite the remarks of the prosecutor, however, the defendant’s attorneys indicated that they remained unprepared to assist him, just as they had been when he had filed his pro se motion for a speedy trial. One of the public defenders informed the court that “[w]e are not any more prepared today to provide him with effective representation than we were three weeks ago
The defendant’s attempt at cross-examination also was devastating. One of the four witnesses called by the state on that first day of the presentation of evidence was Gloria S., who shared an apartment with the defendant and the victims and who had discovered three of the bodies. During the defendant’s cross-examination of her, she responded with several outbursts. Amid questioning from the defendant in front of the jury, her responses at various times included “Oh God! Help me!” and “I can’t take this!” She also called the defendant a “son of a bitch!” At no time did the defendant or his standby counsel request, nor did the court on its own give, a cautionary instruction to the jury that it should disregard the outbursts.
Moreover, the defendant elicited damaging statements from Gloria S. during cross-examination. She had testified on direct examination that, upon finding the bodies, she also discovered Marcus G., the two year old son of one of the victims who appeared to have a bruise on his face but was otherwise unhurt. The defendant elicited on cross-examination that Gloria S. had asked Marcus what had happened. “I asked
I disagree with this analysis of whether the statements were prejudicial to the defendant for two reasons. First, the issue of whether the hearsay statements of the child would have been admissible is wholly separate and distinct from the issue of whether the defendant was prejudiced by his own attempts at self-representation. Ordinarily, we consider the admissibility of hearsay in the context of the state’s attempt to introduce hearsay statements into evidence over the timely objection of the defendant. In this case, however, the statements were not introduced by the state. Indeed, the state probably did not attempt to do so because it recognized that these statements would not be admissible under our rules of evidence. Rather, these statements were repeated in front of the jury solely because of the ineptitude of the defendant in acting as his own attorney. As such, an analysis that hinges on the admissibility of the statements is inappropriate.
Second, the majority’s suggestion that these statements of the child would nevertheless be admissible over proper objection stands two recognized hearsay exceptions on their heads and implicates the confrontation clauses of the United States constitution and our
The utterances of the two year old child, Marcus G., do not satisfy these requirements. The witness, Gloria S., testified that she had asked leading questions of the child, suggesting to him the names of people who might have committed the crimes. I can find no Connecticut case (and I doubt whether one exists in any other jurisdiction) in which the court properly admitted as a spontaneous utterance a declarant’s statement that was made in response to a series of leading questions. Moreover, the child’s responses were completely inconsistent with one another.
The majority’s reliance on State v. Stange, 212 Conn. 612, 563 A.2d 681 (1989), as supporting its application and interpretation of the spontaneous utterance exception, is misplaced. In Stange, the statement admitted into evidence neither was made in response to a leading question nor was it inconsistent with a prior statement of the declarant. In that case, the witness was a police officer who had come upon a victim of a shooting. The police officer told the court that when he “asked the victim who had shot him, [the victim] gestured toward the defendant’s house and said, Tom Stange.’ He also gave [the police officer] a description of the defendant.” Id., 615-16. As indicated above, the form of the questions and the answers given by the hearsay declarant in this case were very different.
Likewise, the majority cannot rely on the residual, catchall exception to the rule against hearsay. See generally C. Tait & J. LaPlante, supra, § 11.25, p. 414. “Under the catch-all exception a court may admit a statement that is technically hearsay and does not fall within the traditional hearsay exceptions, provided: (1) there is a reasonable necessity for the admission of such statement, and (2) the statement is supported by
Finally, under the circumstances presented by this case, the admissibility of the hearsay statements, over proper objection, would implicate the defendant’s constitutional right to confront the witnesses against him. See Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980) (“In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is
C
At the end of the first day of trial, at the request of the defendant, the court reappointed standby counsel as his attorneys. By that time, however, the damage already had been done. The jury had been selected and crucial witnesses had testified. Equally important, the public defenders, upon being reappointed, again emphasized to the trial court that they still were not prepared to go forward with the trial. They explained that their heavy case loads and obligations to other indigent clients had prevented them from preparing for the trial of the defendant.
Ill
The majority concludes that “[t]he defendant in this case was not entitled to a mistrial simply on the basis of his attempt at, and then abandonment of, self-representation. Indeed, to a large extent, the defendant assumed the very risk when he elected to represent himself of which he now complains.” Yet the defendant, whose intelligence level borders on mental retardation, who has serious psychological and neurop-sychological problems, who had never before been to trial, and who had been confined for nearly one year under conditions equivalent to solitary confinement, cannot be judged by the same standards as we would judge a college professor. He obviously made his decision to represent himself because the system had failed him.
Furthermore, there is not a scintilla of evidence, nor does the state even suggest, that the defendant was attempting to manipulate the system by moving for a speedy trial and then asking to represent himself. Moreover, there is no indication that his disastrous attempts at jury selection and cross-examination were somehow calculated to delay or hinder justice. The defendant was not a savvy career criminal, but, rather, a person with limited intelligence and serious psychological and neuropsychological problems who was faced for the first time with the intricacies of presenting a defense in a trial by jury.
Most importantly, this case must be viewed through the lens that the state was seeking the death penalty for these murders. The state, in seeking to pursue the
“Timely appointment and opportunity for adequate preparation are absolute prerequisites for counsel to fulfill his constitutionally assigned role of seeing to it that available defenses are raised and the prosecution put to its proof.” Brescia v. New Jersey, 417 U.S. 921, 924, 94 S. Ct. 2630, 41 L. Ed. 2d 227 (1974) (Marshall, J., dissenting). Indeed, the United States Supreme Court has held that a state’s obligation to provide coun
Accordingly, I would reverse the judgment of the trial court and order a new trial.
The defendant was arrested by federal agents on a charge of unlawful flight in violation of 18 U.S.C. § 1073.
See footnote 14 of the majority opinion.
Practice Book § 963 provides: “When a defendant has been permitted to proceed without the assistance of counsel, the judicial authority may appoint standby counsel, especially in cases expected to be long or complicated or in which there are multiple defendants.”
The trial court formally appointed only one public defender, Patrick J. Culligan, as standby counsel for the defendant after he elected to represent himself. The transcripts and the record indicate, however, that another public defender, William Holden, appeared at trial with Culligan and also assisted the defendant. Moreover, Culligan’s comments to the trial court indicate that both he and Holden were assisting the defendant during this time. Accordingly, I refer to both Culligan and Holden as standby counsel.
The motion for mistrial filed by the defendant’s attorneys read as follows: “MOTION FOR MISTRIAL
“Pursuant to Practice Book § 887 the defendant respectfully requests that the Court declare a mistrial in the trial of the instant case. The defendant asserts that a mistrial is required because of events which have transpired both inside and outside of [the] courtroom which have resulted in substantial and irreparable prejudice to the defendant’s case.
“In support of his motion the defendant states the following:
“1. On March 6,1991, the Court granted the defendant’s pro se motion for a speedy trial over the objection of the defendant’s attorneys who informed the Court that they were not prepared to proceed to trial;
“2. On March 26,1991, the Court granted the defendant’s motion to proceed as a pro se defendant and appointed the defendant’s former attorneys as standby counsel pursuant to [Practice Book] § 962;
“3. The defendant engaged in jury selection and a ‘death-qualified’ jury was empaneled.
“a. [The] Defendant’s present attorneys did not voir dire any of the jurors.
“b. Certain veniremen who expressed reservations about their ability to participate in a proceeding and to render a decision which would result in the defendant receiving a death sentence were excused by the Court without sufficient questioning concerning their willingness to follow their oaths and juror’s duties.
“c. The defendant expended his allotted 30 peremptory challenges before the fifth juror was chosen and the Court denied the defendant’s request for additional peremptory challenges.
“4. The defendant argued a Motion for Change of Venue which was denied by the Court.
“a. The defendant did not have the opportunity to conduct a public opinion survey;
“b. The defendant did not introduce any media circulation, broadcast range and viewer population data;
*861 “c. Due to this lack of information, the defendant did not have the ability to demonstrate that some other judicial district venue would provide a more neutral forum for the trial.
“5. The defendant argued a Motion to Suppress his statements to certain FBI officials which was denied by the Court.
“a. The defendant did not address the issue of the voluntary waiver of his Miranda rights during the presentation of evidence and argument.
“b. The State did not honor the standing discovery order to disclose admissions of the defendant prior to the hearing in that the State had not disclosed the contents of the defendant’s telephone call to Elvira Pierce which was testified to by special agent Richard Hoskins. This issue was not addressed by the defendant.
“6. The Court granted the State’s Motion for Production of Non-testimonial Evidence and the defendant subsequently refused to comply with the Court’s order. The defendant’s present attorneys were not able to advise and request him to comply with the Court’s order because of their status as stand-by counsel, which prohibits the giving of unsolicited advice.
“7. The State presented four witnesses on the first day of trial while the defendant was still proceeding pro se.
“a. The defendant did not confer with stand-by counsel before conducting cross-examination of the witnesses.
“b. The defendant elicited several very prejudicial statements from witness Gloria [S.J during cross-examination. [Gloria S.’] cross-examination testimony concerning the alleged statement of the two-year-old victim, [Marcus G.], wherein he accused the defendant of hurting him was only placed in evidence as the result of the defendant’s cross-examination as it had not been the subject of [Gloria S.’] direct testimony in any manner or fashion.
“8. The defendant’s attorneys stopped all preparation for trial on March 26, 1991, when the defendant elected to proceed pro se.
“a. Discovery was not complete as of March 26, 1991, in that the State continued to supply the defendant with discovery after March 26, 1991.
“b. The defendant’s attorneys have not reviewed and analyzed any of the discovery materials submitted by the State to the defendant after March 26, 1991.
“9. The defendant has repeatedly stated that one of his reasons for electing to proceed pro se was his disagreement with defense counsel concerning appropriate trial strategy. Since March 6, 1991, when the defendant*862 requested a speedy trial until today, the defendant and defense counsel have not agreed upon trial strategy.
“10. The defendant submitted a list of defense witnesses to the Court on the opening day of trial for the purpose of requesting the Court’s assistance in having the witnesses subpoenaed to testify in his behalf.
“a. Because of his indigency and because he is incarcerated in lieu of bond, the defendant requested the assistance of the Court to subpoena his witnesses.
“b. The State was given a copy of the defendant’s witness list by the Court, “c. The Court did not inquire of the defendant if the defendant wished to divulge his witness list to the State.
“d. Pursuant to the rules of practice, the defendant was under no obligation to divulge his list of proposed witnesses to the State.
“The defendant asserts that the above-described events individually and in their totality constitute events and conduct which have created substantial and irreparable prejudice to his case. The defendant urges that the Court declare a mistrial, discharge the jury and return the defendant’s capital felony prosecution to the jury list to await his trial in the normal course of docketing.”
For two reasons, I disagree with the majority’s assertion that, even if the trial court’s discretion is narrower in death penalty cases, we should apply that stricter standard upon review only if the defendant ultimately was sentenced to death. See footnote 19 of the majority opinion. First, upon appellate review, we should consider the trial court’s decision whether to grant the motion for mistrial as a moment frozen in time. At that moment, the state is attempting to have the defendant put to death, and the defendant is moving the court to declare a mistrial and start afresh. The trial court’s denial of the defendant’s motion at that moment tips the scale in favor of the state’s attempt to put him to death. For this reason, I believe that we must review the decision of the trial court without regard to whether the defendant, at some later point, was saved from a punishment of death.
Second, but equally important, the majority’s position disregards the fact that even if a capital defendant’s life is spared during the sentencing phase, the mere conviction of a capital felony means that he will face a sentence that is fundamentally different than that imposed on other criminal defendants in this state. A sentence of “life imprisonment” means a definite sentence of sixty years in prison. General Statutes § 53a-35b. A person so sentenced may be released on parole before the expiration of the sixty years. General Statutes § 54-125a (a). In capital felony cases, however, a defendant who is spared the death penalty is required by statute to be sentenced to spend the rest of his natural life in prison without the possibility of release. General Statutes §§ 53a-35a (1), 53a-35b and 54-125a (b). Thus, even if a capital defendant’s life is spared during the sentencing phase, he will be deprived of any opportunity for release.
See footnote 10 of the majority opinion.
Opsahl explained the difference between these two types of analysis. “Neuropsychological testing involves attempting to evaluate possible brain injuries, difficulties in behavior or thinking that people might have as a result of head injuries, for instance, sustained in motor vehicle accidents, head injuries sustained in fights or in falls. . . . Psychological testing, on the other hand, is more concerned with the area of personality problems, personality functioning, psychological issues or problems which do not have a basis for which are not caused by brain injuries per se, body injuries.”
The defendant had heard the phrase “one day, one trial,” and misconstrued this to mean that he was obligated to select at least one juror during each day of jury selection. Thus, at the end of the first day of jury selection, when the defendant had not yet selected any jurors, he accepted the day’s final prospective juror without asking a single question. The following day, when the defendant’s standby counsel explained the misunderstanding to the court, the prosecutor indicated that he had no objection to allowing the defendant to reexamine the chosen juror. The defendant did so, and used a peremptory challenge to disqualify the juror.
The entire remarks of the prosecutor, assistant state’s attorney Jonathan Benedict, were as follows: “I don’t want either the court or Mr. Day or counsel to get the impression that the state is in a rush about this, because we are not, we are certainly willing to stand by and wait for all the time it takes for the defense to accurately defend Mr. Day.
“In view of the seriousness of the charge and the possible punishment in this case where I think there is concern that Mr. Day receive a fair trial as any other party of this courtroom, however, I think perhaps now is—we are at the point—because the state is confused and I think obviously Mr.
“I think that while the public defender’s office may have one opinion as to what that type of a representation should be, I think that is something that at this point should be determined by the court and I think it should be determined with—obviously in view and the nature of the charges and the possible punishment in this case, and I think in an attitude that all we have to do under these circumstances is sit back and let him represent himself is inappropriate and the longer we do this would not be at all fruitful no matter what the outcome of the case is.
“I think at this point it is appropriate that as Mr. Day continues to insist on representing himself, that nevertheless the public defender’s office has been appointed previously, and for a long time, to defend Mr. Day in this case and I think that their efforts from this point on should be more than mere standby and will answer questions if he has questions. It is rather apparent that he does not have either the funds nor the freedom or the time to do all that has to be done for him in his defense. He has two lawyers, one sitting on either side of him as he has had for three or four weeks during the pendency of this trial.
“I think it is appropriate from this point on that the defense be somewhat more active no matter what the public defender’s office thinks that their appropriate stance be. What we are doing is we are prosecuting somebody for a crime that has occurred in the city of Bridgeport and it is the state’s position that what has happened thus far is inadequate and inappropriate and I would ask that the court enter orders seeing that Mr. Day receives continuing and more active legal representation.”
Practice Book § 964 provides: “If requested to do so by the defendant, the standby counsel shall assist the defendant. If there is no objection by the defendant, such counsel may also call the judicial authority’s attention to matters favorable to the defendant. Such counsel shall not interfere with the defendant’s presentation of the case and may give advice only upon request.”
It concerns me that the majority focuses merely on the leading question and the child’s answer to that question. The majority never acknowledges that the previous leading question asked of the child elicited a completely contradictory response from him.
The majority cites an earlier case, State v. Sharpe, 195 Conn. 651, 491 A.2d 345 (1985), for its explanation of the catchall exception to the hearsay rule. Because State v. Boyd, supra, 214 Conn. 132, is a more recent case of this court, and because the language of that case differs slightly from the language employed in the earlier case, I refer to the test as set forth in Boyd.
The attorneys explained their conflicting obligations to the trial court during a hearing on their motion for a mistrial. Between July, 1990, and May, 1991, one of the attorneys tried four other jury trials that occupied approximately three and one-half to four months. The other attorney tried a capital felony case that occupied approximately two and one-half to three months, and also represented defendants in ten to twelve other capital felony cases.
One criminal defendant being represented by one of the public defenders had been arrested one year before the defendant in this case and had been charged with capital felony, but still had not gone to trial as of May, 1991.
