STATE OF CONNECTICUT v. AARON WOOD
(AC 36558)
Alvord, Prescott and Pellegrino, Js.
Argued February 11—officially released September 1, 2015
(Appeal from Superior Court, judicial district of Hartford, geographical area number fourteen, Suarez, J.)
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Brett R. Aiello, special deputy assistant state‘s attorney, with whom, on the brief, were Gail P. Hardy, state‘s attorney, and Mark Brodsky, senior assistant state‘s attorney, for the appellee (state).
ALVORD, J. The defendant, Aaron Wood, appeals from the judgment of the trial court revoking his probation and imposing a seventy-five month prison sentence. On appeal, the defendant claims that the court abused its discretion by: (1) denying his request for new counsel1 and (2) proceeding with the violation of probation hearing without his presence.2 We affirm the judgment of the trial court.
The following facts and procedural history are relevant to the defendant‘s appeal. In January, 2009, the defendant was convicted of risk of injury to a child in violation of
On September 3, 2013, the defendant was again arrested for violating his probation. The state charged that he had violatеd the conditions of his probation by sleeping at an unapproved residence and testing positive for marijuana. On November 21, 2013, the defendant appeared with counsel before the court for his violation of probation hearing. Before the hearing began, the defendant addressed the court and requested new counsel. The defendant complained of a lack of communication with his assigned public defender, Victoria Pells, and a disagreement over hearing strategy. In addition, the defendant claimed that Pells had lied to her supervisor, telling him that the defendant had threatened her. The court asked Pells if she had preparеd the case; she replied that she was prepared and ready to proceed. The defendant continued to protest, prompting the court to again ask Pells if she was prepared. She said, “I have prepared the case, Your Honor. I‘ve talked to [the defendant] about this case on several times when he has been to court. I went out to the jail to see him. I‘ve talked to him over the [tele]phone at jail. The thing he wants me to do is put in an affidavit that I think would be detrimental to his case, and I have chosen not to do so.” The court denied the defendant‘s request for new counsel.
The court stated that the hearing would go fоrward as scheduled, but the defendant responded: “No.” The record shows that the defendant continued to interrupt the court to argue his point. When the court instructed the state to call its first witness, the defendant began singing Christmas carols. At this point, the state asked that the defendant be held in contempt. The court did not rule on the oral motion and instead called a five minute recess.
When the hearing resumed, the defendant repeated
When the hearing resumed, the marshal said that the defendant would not come out of the lockup. On the record, the court stated that the defendant‘s behavior had been disruptive as defined by
With the defendant not present, the violation of probation hearing went forward. Pells began by telling the court that the defendant wanted to testify on his own behalf. The court stated that he сould only do so if he followed the court‘s previous instructions and behaved appropriately.
The state called the defendant‘s probation officer, who testified that the defendant had admitted to spending nights at unapproved housing in violation of the conditions of his probation. In addition, the probation officer testified that the defendant had admitted to using marijuana and tested positive for drug use. Pells cross-examined the probation officer and raised the possibility that the defendant had left his approved housing
After the state rested its case, at her request, Pells was granted a short recess to ask the defendant if he wanted to attend the hearing and testify on his own behalf. Pells returned to the hearing and advised the court that the defendant told her he did not wish to testify or be present in court.
The court found that the defendant had violated the terms of his probation. Pells asked the court for leniency. She represented that the defendant had changed homes because he feared for his safety. The court determined that the beneficial aspects of probation were no longer being served. The court revoked the defendant‘s probation, and imposed the maximum sentence of seventy-five months in prison. This appeal followed.
I
The defendant‘s first claim on appeal is that the court improperly denied his request for new counsel. The defendant argues that his right to effective assistance of counsel, under both the federal and state constitutions, was violated when the court denied his request to obtain new counsel.4 The defendant claims that if the court had conducted a proper investigation, it would have discovered that his counsel was ineffective and burdened by a conflict of interest. We disagree.
“We review the court‘s refusal to appoint new counsel for an abuse of discretion. [T]here is no unlimited opportunity to obtain alternate counsel. . . . It is within the trial court‘s discretion to determine whether a factual basis exists for appointing new counsel. . . . Moreover, absent a factual record revealing an abuse of that discretion, the court‘s failure to allow new counsel is not reversible error.” (Citation omitted; internal quotation marks omitted.) State v. Turner, 133 Conn. App. 812, 819–20, 37 A.3d 183, cert. denied, 304 Conn. 929, 42 A.3d 390 (2012).
“The United States Supreme Court first held in Gagnon v. Scarpelli, [411 U.S. 778, 790, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973)], that due process required the appointment of counsel in some probation revocation hearings. The right to counsel in such hearings was extended to all defеndants in violation of probation hearings by
“[An appellate court] must distinguish between a substantial and timely request for new counsel pursued in good faith, and one made for insufficient cause on the eve or in the middle of trial. . . . In evaluating whether the trial court abused its discretion in denying [the] defendant‘s motion for substitution of counsel, [an appellate court] should consider the following factors: [t]he timeliness of the motion; adequacy of the court‘s inquiry into the defendant‘s complaint; and whether the attorney/client conflict was so great that it had resulted in total lack of communication preventing an adequate defense.” (Citation omitted; internal quotation marks omitted.) State v. Hernaiz, 140 Conn. App. 848, 854–55, 60 A.3d 331, cert. denied, 308 Conn. 928, 64 A.3d 121 (2013).
Here, the record shows that the defendant‘s only request for new counsel came just before the start of his probation hearing. At this stage of the proceeding, a court is not required to afford a defendant unlimited options for his choice of counsel. Foote v. Commissioner of Correction, 151 Conn. App. 559, 567–68, 96 A.3d 587, cert. denied, 314 Conn. 929, 102 A.3d 709 (2014). “Although the court has a responsibility to inquire into and to evаluate carefully all substantial complaints concerning court-appointed counsel . . . the extent of such inquiry lies within the court‘s sound exercise of discretion. After it has given the defendant an adequate opportunity to inform it of his or her complaints, the court has broad discretion in determining whether circumstances warrant the appointment of new counsel or the dismissal of the defendant‘s existing counsel.” (Internal quotation marks omitted.) Id.
The court allowed the defendant to fully air his complaints.5 See id., 567–69. There is little doubt the court was well informed as to why he wanted new counsel. The record shows that the defendant claimed Pells had not been helрing him on his case, she had not communicated frequently enough, and she had lied to her supervisor, telling him that the defendant had threatened her. Ultimately, the defendant stated, “I don‘t trust her.” Hearing these arguments, the court turned to Pells and twice asked if she was prepared. Pells stated that she was. She informed the court that she had spoken to the defendant several times at court and at the jail. She stated that there was a disagreement over the submission of an affidavit as evidence, and that she decided against submission because she believed it would be detrimental to the defendant‘s case. We conclude that the court‘s level of inquiry was adequate.
A court is required to dismiss the defendant‘s existing counsel only if there are exceptional circumstances; see id., 568; in this case none were present. This court has held exceptional circumstances do not include a defendant‘s perception of a breakdown in communica-
The court‘s inquiry also revealed a disagreement over trial strategy. Among his complaints, the defendant told the court that Pells was not helping him prepare for the hearing. Pells said the defendant wanted her to submit an affidavit that she assessed would be detrimental tо his case. Against the defendant‘s wishes, she decided not to submit it. In State v. Drakeford, 202 Conn. 75, 519 A.2d 1194 (1987), our Supreme Court adopted the position that defense counsel has the final word over most tactical decisions: “Differences of opinion over trial strategy are not unknown, and do not necessarily compel the appointment of new counsel.” Id., 83. A disagreement over whether to submit an affidavit is not an exceptional circumstance as to require new counsel. See id. After listening to both the defendant‘s and counsel‘s explanations of the issue, the court decided it did not necessitate the removal of Pells.
The defendant also argues that conflict between himself and Pells had risen to the level of “irreconcilable differences.” General assertions of distrust or a lack of faith in counsel are not exceptional circumstances. In State v. Jenkins, 70 Conn. App. 515, 524–25, 800 A.2d 1200, cert. denied, 261 Conn. 927, 806 A.2d 1062 (2002), this court found no exceptional circumstances were present when a defendant felt uncomfortable with his counsel. Here, the defendant‘s lack of trust in his counsel related to an out-of-court incident that he described to the court. He said Pells had lied to her supervisor, telling the supervisor that the defendant had threatened her. Whatever did occur, Pells did not herself bring the incident to the court‘s attention, and it did not affect her willingness to proceed with the case. As discussed in Jenkins, an exceptional circumstance is more than just the defendant‘s feeling of dissatisfaction. See id., 524. It must be substantiated with evidence that counsel will do an inadequate job in representing the defendant‘s interests. See id. There is no evidence that Pells was not prepared to provide the defendant with an adequate defense.
The defendant also argues that the alleged out-of-
The alleged incident did not create any conflict of interest. It happened outside of court proceedings, and the defendant himself chose to share it with the court. The incident had no relation to the case against the defendant, and neither defense counsel nor the state attempted to raise it during the hearing. Thus, Pells had no personal interest to protect. There was no threat she would be called to testify about the incident, and what she did or did not tell her boss was not conduct worthy of “criminal charges or significant disciplinary actions.” State v. Figueroa, 143 Conn. App. 216, 225, 67 A.3d 308 (2013); cf. id., 228 (defense counsel was accused of facilitating witness intimidation on defendant‘s behalf). If Pells had truly felt threatened she could have requested to withdraw from the case, but she did not. Instead she told the court that she was prepared to go forward. Pells’ performance in the hearing showed no evidence of competing interests between her and the defendant. She informed the court that her client wanted to testify, she cross-examined the state‘s witness, she raised an affirmative defense to the defendant‘s unauthorized change in residence, and she questioned whether the positive drug test could have been a result of drug abuse that occurred before probation began. On its face, the defendant‘s revelations of the alleged threat and lie did not raise the possibility of a conflict of interest. The court was under no obligation to inquire further. See id., 224.
The record demonstrates that the court listened to the defendant‘s request for new counsel and his reasons why substitution was necessary. The court asked Pells
II
The defendant also claims that the court improperly proceeded with his violation of probation hearing without his presence. First, he argues that he did not waive his right to be present. Second, the defendant says his behavior was wrongly classified as disruptive so he should not have been barred from the proceedings. Finally, he claims that the court did not properly inform him of his right to return to the courtroom because the message was not personally delivered by the court. We disagree with all three claims.
At the start, it is important to clarify the court‘s ruling concerning the defendant‘s presence at the hearing. The transcript shows the defendant was warned that if he continued to be disruptive, he would be removed from the hearing and it would proceed without him. The court then took a recess to provide the defendant with time to decide if he was willing to abide by the court‘s conditions. When court resumed, the defendant refused to return from the lockup. At this point, the court ruled that the defendant had waived his right to be present and ordered his removal from the hearing in accordance with
We use the abuse of discretion standard to review both a court‘s determination of waiver of the right to be present; State v. Durkin, 219 Conn. 629, 636, 595 A.2d 826 (1991); and a court‘s removal of a defendant from the courtroom. State v. Jones, 281 Conn. 613, 637, 916 A.2d 17, cert. denied, 552 U.S. 868, 128 S. Ct. 164, 169 L. Ed. 2d 112 (2007). “Probation itself is a conditional liberty and a privilege that, once granted, is a constitutionally protected interest. . . . The revocation proceeding must comport with the basic requirements of due process because termination of that privilege results in a loss of liberty. . . . [T]he minimum due process requirements for revocation of [probation] include written notice of the claimed [probation] violation, disclosure to the [probationer] of the evidence against him, the opportunity to be heard in person and to present witnesses and documentary evidencе, the right to confront and cross-examine adverse witnesses in most instances, a neutral hearing body, and a written statement as to the evidence for and reasons for [probation] violation.” (Internal quotation marks omitted.) State v. Altajir, 123 Conn. App. 674, 682, 2 A.3d 1024 (2010), aff‘d, 303 Conn. 304, 33 A.3d 193 (2012).
A
“[A] trial court need not engage in a colloquy with a defendant expressly focused on the defendant‘s understanding of his right to be present to determine that a waiver of the right of presеnce was valid. Rather, the court may infer the defendant‘s waiver from the totality of his acts and conduct, so long as the defendant has been adequately informed that the trial would continue in his absence.” (Internal quotation marks omitted.) State v. Crawley, 138 Conn. App. 124, 132–33, 50 A.3d 349, cert. denied, 307 Conn. 925, 55 A.3d 565 (2012).
The defendant does not disagree that he disrupted the court hearing with multiple repetitive interruptions and the singing of Christmas carols. In fact, he claims it was his goal to force the court to order a continuance. Five separate times, the court told the defendant that the hearing would go forward without him if he did not stop being disruptive. The defendant ignored the warnings by repeating his request fоr a new attorney, but he did acknowledge the consequences of his actions: “You can do what you want, find me guilty, do whatever you want because I know this whole situation is staged, find me guilty.” This statement shows the defendant did understand that the hearing could proceed without him, and he was aware of the consequences of his actions. See State v. Crawley, supra, 138 Conn. App. 132–33.
In accordance with our rules of practice, the defendant was represented by counsel during his absence from the courtroom. While this was not the counsel he then wanted, we have already held that the court did not abuse its discretion in declining to replace her. The defendant‘s intentional absence was sufficient basis for the court to infer that he was waiving his right to be present at the hearing. Therefore, we conclude that the court did not abuse its discretion.
B
“With respect to waiver of the right of confrontation by disruptive cоnduct, a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings. . . . Finally, the trial court has broad discretion in determining whether the removal of an accused from the cоurtroom is an appropriate measure in light of the nature and severity of the improper conduct.” (Citation omitted; internal quotation marks omitted.) State v. Jones, supra, 281 Conn. 637.
Removal of a disruptive defendant is guided by
The defendant has conceded that his conduct was disruptive and that his intent was to delay the proceedings. At the time, the court advised the defеndant that the hearing would go forward without him if he did not change his behavior; the defendant indicated that he understood. When the court ordered removal, the defendant had already absented himself from the courtroom. This is inconsequential; the defendant‘s refusal to return to court was intended, by the defendant‘s own admission, to disrupt or delay the proceeding. The court explicitly stated it was taking a recess for the defendant to decide if he was willing to behave and remain in the courtroom for his hearing. The court was within its discretion to view the defendant‘s refusal to return as a continuation of his disruptive behavior. The court‘s decision to remove the defendant was justified by the totality of his disruptive conduct.
C
In the alternative, the defendant seeks procedural
The rules of practice require: “At the time of the defendant‘s removal, the judicial authority shall advise the defendant that the defendant may request to be returned to the courtroom if, at the time of making such request, the defendant assures the judicial authority that the defendant shall not engage in disruptive conduct.”
The court was well within its discretion to send defense counsel to advise her client of his right to attend the hearing. After ordering removal, the court stated that the defendant was welcome to return to the proceedings if he agreed to be nondisruptive. In order to preserve the defendant‘s option of returning to the hearing, the court ordered that he remain in the courthouse and instructed Pells to inform him of his right to return. Despite the defendant‘s dislike of his counsel, Pells was an appropriatе person to advise him. She was an officer of the court, and the record provides no evidence why she could not be trusted to complete the task imposed by the judge.
The defendant claims Pells did not advise him of the court‘s instructions, but he provides no evidence to support his claim. The court took a recess so Pells and her supervisor could visit the defendant. When Pells returned, the court confirmed on the record that she: had met with the defendant, informed him that the hearing would go on without him, and explained that he could return if he remained orderly. Pells stated that the defendant had indicated that he would not be returning to the courtroom. After thе state rested, Pells visited the defendant a second time to inquire whether he wanted to attend the hearing and testify; again, he refused. In fact, the defendant concedes that even if he was advised by Pells or in person by the court, he would not have returned because of his desire for new counsel. In circumstances like these, our Supreme Court has found that administrative efficiency would be paralyzed if a defendant could voluntarily absent himself and then demand the court provide personal advisement. See State v. Drakeford, supra, 202 Conn. 81.
We conclude that the court properly followed the rules of practice and provided the defendant with a fair opportunity to be present at his hearing.
In this opinion the other judges concurred.
Notes
“[Defense Counsel]: I did, your honor. Myself and my supervisor, Attorney Cococcia, went in the interview room off of center court and let him know that the proceeding is going forward today regardless of whether or not he‘s present in court, he can choose to be present in court at any time as long as he obeys the rules of the court. He continued to say that he wants a new lawyer, that he doesn‘t trust me. My supervisor has spoken to him about that, that he is not going to be getting a new lawyer. He continued to say that I made up lies about him today, which I did not. If he—he and I very well could have different versions of the conversation we had this morning, but I did not lie to my supervisor about anything that had went on.
“The Court: Well, the court‘s assured that you‘re an officer of the court in good standing, and the court does not question at all any of your statements made to the court whether in chambers or outside of—or in the courtroom. The court is satisfied that you are an attorney in good standing and capable. So that is not an issue for the court, or for this proceeding for the matter, or the public defenders’ office in general. Does your client wish to be part of this proceeding today?
“[Defense Counsel]: I‘m sure he would love to be out here, however, he did not seem to be willing to follow your honor‘s orders to remain silent as to the fact—as to his desire to have a new lawyer.
“The Court: All right. Well, pursuant to [Practice Book] § 44-8 (3), the court directs that this matter should continue in his absence based on his disruptive conduct that the court has previously indicated on the record pursuant to [Practice Book] § 42-46 or -47. So at this point, as long—counsel, as long as you have instructed your client that he‘s welcome to join us at any time—
“[Defense Counsel]: I did, your honor.
“The Court: —then we will proceed until he wants to join us.”