254 Conn. 637 | Conn. | 2000
Opinion
The defendant, Rafael Fernandez, appeals from the judgment of conviction rendered by a three judge panel of the Superior Court. The panel found the defendant guilty of murder in violation of General Statutes § 53a-54a (a),
The record reveals the following pertinent facts and procedural history. The defendant was arrested on September 14, 1995, and charged with felony murder in violation of General Statutes § 53a-54c,
On May 15, 1996, Gerace made an oral motion to withdraw from the case before Espinosa, J., and inaccu
After the state’s attorney indicated that he had no objection to Gerace’s motion to withdraw, Judge Espinosa stated: “The matter was discussed with the court. The court believes that it is appropriate that Mr. Gerace withdraw from the case.” Consequently, Judge Espinosa granted Gerace’s motion.
Evidently, the defendant did not retain new counsel during the period between May 15 and May 29, 1996. Although the record is unclear at this point, it appears
On June 24,1996, the matter of the defendant’s representation still was not finalized. Michael Isko, a public defender, filed an appearance as standby counsel for the defendant, and Judge Espinosa granted another continuance in light of the defendant’s request for more time to retain private counsel.
On July 10, 1996, however, the defendant appeared in court with Isko and stated that he wanted to represent
Throughout the following months, the defendant filed various pro se motions, including a motion for access to a law library on September 18, 1996, which Judge Barry granted on October 2, 1996, “subject to availability of accommodations within the department] of [correction.”
On October 30,1996, the office of the attorney general appeared on behalf of the commissioner of correction and moved to vacate Judge Barry’s October 2 order granting the defendant access to a law library. Arguments on that motion were heard on October 30. John J. Armstrong, the commissioner of correction, testified that the defendant was then housed at the Walker Reception/Special Management Unit, a high security facility for offenders posing a relatively high risk to public safety and to department of correction personnel. Armstrong further testified that access to the courts was provided to inmates through the office of the public defender and that no correctional facility in Connecticut contained a law library. Armstrong stated that perhaps the largest collection of law books could be found at a facility formerly known as the “state prison at Somers,”
Before indicating how he would decide the motion to vacate, Judge Barry again stressed to the defendant the seriousness of his decision to represent himself:
“The Court: You’re unable to retain your own attorney, I presume, a private attorney? Is that right?
“[The Defendant]: I do not want to retain. I can afford it, but I do not want to retain him.
“The Court: And you don’t want the services of a public defender ... on a full-time basis?”
The defendant indicated that he did not want a public defender, and that he did not wish to receive advice from standby counsel. Judge Barry then inquired of the defendant: “It may be that your only chance is by retaining an attorney or by having access to the courts through the public defender’s office .... Do you understand?” The defendant replied: “Yes.”
On November 25 and December 5, 1996, the defendant was brought to court to review the state’s file. At this point, the record is unclear again. Evidently, the defendant’s pro se status had changed because Isko was appointed as the defendant’s public defender on January 8,1997 and filed an appearance “in lieu” of the defendant on January 15, 1997.
On March 7, 1997, Isko asked for a continuance, claiming that he lacked sufficient time to prepare for trial in light of his relatively recent change in status to full counsel and the somewhat technical nature of the evidence. To accommodate Isko, Judge Norko ordered the office of the public defender to provide Isko with cocounsel and continued the case until March 14, 1997. On March 14, however, Judge Norko declared a mistrial, relying on the fact that the state’s attorney could be called as a witness because of various communications with the defendant while the defendant was proceeding pro se.
On May 29,1998, the panel found the defendant guilty of arson in the first degree and murder. See footnotes 1 and 2 of this opinion and accompanying text. The panel found the defendant not guilty of felony murder, burglary in the first degree and tampering with physical evidence. The defendant was sentenced to a total effective term of fifty-five years imprisonment. The defendant appealed to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
I
WITHDRAWAL OF COUNSEL
The defendant first claims that the trial court, Espinosa, J., abused its discretion in granting Gerace’s motion to withdraw. The defendant further claims that the trial court, Espinosa, J., failed to comply with Practice Book (1978-1997) § 632 by: (1) allowing Gerace to withdraw notwithstanding the fact that he had not filed a written motion requesting permission to withdraw; and (2) failing to assert with any degree of specificity good cause in support of its decision to grant Gerace’s oral motion to withdraw. The defendant argues that, as a result of the court’s alleged failure to comply with Practice Book (1978-1997) § 632, he was deprived of
Decisions regarding the withdrawal of counsel are evaluated under an abuse of discretion standard. See State v. Bethea, 24 Conn. App. 13, 22-23, 585 A.2d 1235, cert. denied, 218 Conn. 901, 588 A.2d 1076 (1991); cf. State v. Watson, 198 Conn. 598, 610, 504 A.2d 497 (1986) (“It is the province of the trial court to determine whether there is a factual basis for disqualification of counsel. In such a determination, the trial court is entitled to consider whether the defendant’s effort to displace existing counsel has substantive merit and is being pursued in good faith.”); State v. Casado, 42 Conn.
The defendant failed to preserve his right to counsel claim in the trial court. He, therefore, seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), under which “a defendant can prevail on a claim of constitutional error
The record in this case does not support a finding that the trial court’s decision to grant Gerace’s oral motion to withdraw deprived the defendant of his right “to have the assistance of counsel for his defense”; U.S. Const., amend. VI; under the sixth and fourteenth amendments to the United States constitution. The only period of time during the course of the proceedings when the defendant did not have the assistance of counsel, whether standby or otherwise, was during the two week period immediately following Gerace’s withdrawal, by the end of which the defendant was expected to have retained new counsel. Furthermore, this two week period occurred approximately two years before the defendant’s trial. At each step in the process, the court provided the defendant with counsel or accommodated the defendant’s request to proceed pro se and appointed standby counsel to assist the defendant if the need arose.
The defendant argues, however, that he was denied his counsel of choice, namely, Gerace. When Judge Espinosa permitted Gerace to withdraw, however, the defendant voiced no objection. He only asked Judge Espinosa to clarify her warning about the effect on the defendant’s right to a speedy trial arising from the two week delay in the proceedings during which the defendant would attempt to retain new counsel. In light of the fact that the defendant filed approximately forty motions while he was representing himself, it is fair to conclude that the defendant had no difficulty asserting himself before the court, and would have done so had he objected to Gerace’s withdrawal.
Although the defendant cannot point to any time during the proceedings when he indicated that he preferred Gerace over any other attorney, he suggests it now. Even if it is assumed that the defendant’s failure to
In addition to his claim under the sixth and fourteenth amendments to the United States constitution, the defendant argues that he was deprived of his right to counsel under article first, § 8, of the Connecticut constitution. However, in light of the textual similarities between the federal and Connecticut constitutional provisions
On the basis of the foregoing, we conclude that the trial court, Espinosa, J., did not abuse its discretion in granting Gerace’s motion to withdraw. We further conclude that, with respect to the defendant’s claim that he was deprived of his right to counsel, he cannot prevail under Golding because he has failed to establish a constitutional violation.
II
LAW LIBRARY ACCESS
The defendant next claims that his lack of access to a law library effectively denied him the right to represent himself under the sixth and fourteenth amendments to the United States constitution,
In Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977), the United States Supreme Court concluded that “the fundamental [federal] constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.”
Rather than offering a specific remedy, Bounds recognizes the criminal defendant’s right of access to the courts. See, e.g., Lewis v. Casey, 518 U.S. 343, 350, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996); Nordgren v. Milliken, 762 F.2d 851, 854 (10th Cir.), cert. denied, 474 U.S. 1032, 106 S. Ct. 593, 88 L. Ed. 2d 573 (1985); Spates v. Manson, 644 F.2d 80, 84-85 (2d Cir. 1981); see also Washington v. Meachum, 238 Conn. 692, 736, 680 A.2d 262 (1996) (“reasonable restrictions on inmate telephone calls to attorneys are constitutional, so long as other viable means are available to the inmates to pursue their legal claims”). The right to self-representation in criminal proceedings “does not carry with it a right to state-financed library resources where state-financed legal assistance is available [to satisfy the dictates of Bounds].” Spates v. Manson, supra, 85 (finding “no adequate basis ... for a conclusion that the programs available to inmates at [a prison in] Somers [Connecticut] do not provide the kind of support and assistance necessary to enable those who wish to act pro se to do so, whether by formal appointment of a standby attorney ... or otherwise” [citation omitted; internal quotation marks omitted]); see also Santiago v. Commissioner of Correction, 39 Conn. App. 674, 681, 667 A.2d 304 (1995) (“[practices or regulations are invalid under Bounds only if the prisoner is denied access to both legal assistance and legal materials” [emphasis added]).
In the present case, the provision of standby counsel afforded the defendant an adequate link to legal information. A public defender served either as standby counsel or as full counsel for the defendant at all times following the two week period after Gerace’s withdrawal, the period of time that the court had given to the defendant as an opportunity to retain new counsel. The defendant failed to retain new counsel during that period, and the court provided him with the services of a public defender. That public defender would serve as full counsel when the defendant so desired and as standby counsel when the defendant wished to proceed pro se. Isleo was appointed as standby counsel so that he could answer the defendant’s questions about the law and offer the defendant advice if he so requested.
It is not within the province of the judiciary to micromanage prisons. See, e.g., Washington v. Meachum, supra, 238 Conn. 734; see also Lewis v. Casey, supra, 518 U.S. 349. In this regard, the courts evaluate the claims asserted by inmates; the other political branches implement the solutions. “It is for the courts to remedy past or imminent official interference with individual inmates’ presentation of claims to the courts; it is for the political branches of the State and Federal Governments to manage prisons in such fashion that official interference with the presentation of claims will not occur.” Lewis v. Casey, supra, 349. In the present case, however, the defendant has failed to demonstrate how “the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim.” Id., 351. On the contrary, the defendant does
We recently stated in State v. Shashaty, 251 Conn. 768, 742 A.2d 786 (1999), cert. denied, 529 U.S. 1094, 120 S. Ct. 1734, 146 L. Ed. 2d 653 (2000), that “we generally have interpreted the state and federal constitutions as providing essentially equivalent protections with respect to a defendant’s right to self-representation.” Id., 780. Our conclusion in the present case that there was no denial of access to the courts and no denial of the right to self-representation under the United States constitution eliminates the need for us to evaluate the defendant’s claim on state constitutional grounds. As in previous cases, we conclude that standby counsel selves as a legal resource to pro se defendants, thereby enabling them to have meaningful access to the courts while still exercising their right to represent themselves. See id. (“the trial court’s use of standby counsel to ensure that the defendant had access to legal materials did not violate the defendant’s right to self-representation under the state constitution”); see also State v. Day, 233 Conn. 813, 854-55, 661 A.2d 539 (1995) (“standby counsel can serve a more active role and exercise a larger degree of independent initiative with
In sum, we clarify our holding on this issue in the form of a bright line rule: A criminal defendant who knowingly and intelligently waives the right to counsel and who has been appointed standby counsel is not constitutionally entitled to access to a law library. Rather, the appointment of standby counsel satisfies the state’s obligation to provide the defendant with access to the courts. We also clarify that the role of standby counsel is essentially to be present with the defendant in court and to supply the limited assistance provided for in Practice Book § 44-5,
The judgment is affirmed.
In this opinion the other justices concurred.
General Statutes § 53a-54a, (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”
General Statutes § 53a-lll (a) provides in relevant part: “A person is guilty of arson in the first degree when, with intent to destroy or damage a building ... he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied . . . .”
Practice Book (1978-1997) § 632 provides: “A motion for withdrawal of appearance shall be served on the prosecuting authority and other attorneys of record, and filed with the cleric in the same manner as entering an appearance. No such motion for withdrawal shall be granted by the judicial authority, except for good cause shown.”
General Statutes § 53a-54c provides in relevant part: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit . . . burglary . . . and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants . . . .”
General Statutes § 53a-101 (a) provides: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with explosives or a deadly weapon or dangerous instrument, or (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.”
General Statutes § 53a-155 (a) provides in relevant part: “A person is guilty of tampering with or fabricating physical evidence if, believing that an official proceeding is pending, or about to be instituted, he: (1) Alters, destroys, conceals or removes any record, document or thing with purpose to impair its verity or availability in such proceeding . . . .”
On February 7, 2000, Judge Espinosa issued an articulation in which she stated that she could not remember the exact reasons behind Gerace’s withdrawal, “other than [that they were] of an incriminating nature that would have prevented [defense] counsel from effectively representing the defendant in the future and might have placed him in jeopardy of violating . . . [professional] [e]thics.”
Practice Book §§44-4 and 44-5 respectively cover the procedure for appointing and the role of standby counsel. Practice Book § 44-4 provides in relevant part: “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 § 44-5 provides: “If requested to do so by the defendant, the standby counsel shall advise the defendant as to legal and procedural matters. 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.”
After attempting to explain the complexity of the criminal trial process to the defendant, Judge Norko asked the defendant: “[D]o you feel that you’re aware of the dangers and disadvantages . . . of self-representation?” The defendant responded: “Yes.” The court continued: “And you still wish to pursue and represent yourself before this court, in this particular matter?” The defendant replied: “Yes.”
It appears that Judge Barry had little factual information available to assess the merits of the law library motion: “I must confess, I don’t know all of the facilities that have law libraries, nor do I know whether any of those that do have available beds . . . .” The state took no position with respect to the defendant’s motion, but did raise the issue of whether any law library existed within the department of correction. The trial court, indicated that, it was the defendant’s responsibility to explore the existence of any such facility.
Armstrong stated that public safety is jeopardized any time an inmate is moved from one facility to another. In addition, Armstrong expressed concern about the budgetary implications arising from such transfers.
At the hearing on the motion to return to pro se status, Judge Espinosa stated: “The court notes for the record the following history of this case, and the court feels that it is appropriate to outline said history because the court believes that [the defendant], if he gets convicted, is then going to come back and say he didn’t know what he was doing. And the court is of the opinion and so finds today that he knows very well what he is doing and that he’s going to have to live with the consequences of representing himself. ’ ’
Judge Norko stated: “[B]ased upon [Isko’s] reading of the file and research, the [defendant] is changing [his] defense, which implicates the present state’s attorney as a possible witness for the state .... With that in mind, the court will declare a mistrial in this particular case. The court will also note that no witnesses were called for the record—that we haven’t finished impanelling an entire jury.”
Furthermore, Judge Norko indicated that he found “no fault” with the state, the office of the state’s attorney or the office of the public defender, and “that the court [was] somewhat at fault for not viewing it as a possible conflict in the future.” Judge Norko continued: “However, I don’t think that anyone could have predicted that we’d end up in this and, if the defense had remained the same, we wouldn’t be in this particular position.”
Article first, § 8, of the constitution of Connecticut provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . . . . ”
The sixth amendment to the United Slates constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.”
The fourteenth amendment of the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or properly, without due process of law . . . .”
The sixth amendment right to counsel is made applicable to the states through the due process clause of the fourteenth amendment. Gideon v. Wainwright, 372 U.S. 335, 342, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963).
The defendant cites no relevant case law in support of this proposition.
Since Golding review is limited to constitutional claims, we will discuss any violation of the rules of practice only insofar as it is relevant to the defendant’s constitutional claim; any unpreserved claim alleging a violation of the rules of practice has no independent significance for purposes of appellate review.
Rule 1.16 (d) of the Connecticut Rules of Professional Conduct requires attorneys, upon withdrawal from representation, to return to a client any unearned portion of a retainer.
The defendant never claimed that Gerace did not return the retainer. In fact, the defendant stated in open court on October 30, 1996: “I do not want to retain. I can afford it, but I do not want to retain him. ” The defendant’s statement indicates that there was no financial impediment to the defendant’s hiring new counsel.
See footnotes 14 and 15 of this opinion.
See footnotes 15 and 16 of this opinion.
See footnote 14 of this opinion.
This right of access is grounded in due process and equal protection principles. See Murray v. Giarratano, 492 U.S. 1, 11 n.6, 109 S. Ct. 2765, 106 L. Ed. 2d 1 (1989).
Practice Book § 44-5 provides: “If requested to do so by the defendant, the standby counsel shall advise the defendant as to legal and procedural matters. 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.”