State v. Francis ( 2015 )

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STATE OF CONNECTICUT v. MAURICE FRANCIS
(SC 19305)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued January 12—officially released July 7, 2015
John L. Cordani, Jr., assigned counsel, for the appel-
lant (defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Donna Mambrino and Richard J. Rubino,
senior assistant state’s attorneys, for the appellee
(state).
Opinion
McDONALD, J. Following a jury trial, the defendant,
Maurice Francis, was convicted of murder in violation
of General Statutes § 53a-54a. Thereafter, the defendant
challenged his conviction, claiming that he is entitled
to a new trial because, among other things, the trial
court improperly: (1) forced him to choose between
his constitutional right to counsel and his constitutional
right to testify on his own behalf, after defense counsel
took the position that the defendant would be self-
represented if he testified against their advice; and (2)
dismissed a juror under the mistaken view that a juror’s
internal assessment of evidence during the course of
trial constitutes improper deliberation on the verdict.
The Appellate Court affirmed the judgment of convic-
tion. State v. Francis, 148 Conn. App. 788, 791, 86 A.3d
1074 (2014). In his certified appeal to this court, the
defendant challenges the Appellate Court’s rejection of
these two claims. We conclude that the defendant is
entitled to a new trial because he was not represented
by counsel during his testimony and he did not volunta-
rily relinquish his right to counsel. Accordingly, we
reverse the Appellate Court’s judgment.
The Appellate Court’s opinion sets forth a detailed
account of the evidence supporting the defendant’s con-
viction for the murder of his girlfriend, Tashima
Reddick, which is not directly relevant to the issues in
this appeal and therefore need not be repeated. See
id., 792–96. The record reflects the following facts and
procedural history relevant to the issues before this
court. After the defendant was charged with Reddick’s
murder, public defenders, William O’Connor and Bruce
Lorenzen, were appointed to represent him. The trial
court, Gold, J., initially found the defendant incompe-
tent to stand trial but restorable to competency. Physi-
cians who later examined the defendant concluded that
he was malingering. Subsequently, over defense coun-
sel’s repeated objections, the trial court, Gold, J., and
Alexander, J., found the defendant competent to
stand trial.
The issue of the defendant taking the stand first arose
after the state objected to the defendant making state-
ments on the record, although outside the presence of
the jury, without being subject to cross-examination.
The court, Dewey, J., responded that, if the defendant
wished to make statements, he could do so only if he
chose to testify. The court noted that the defendant
had been consulting with counsel in writing and that
he should continue to cooperate with them. The next
day, defense counsel noted for the record that they
disagreed with the court’s characterization of the defen-
dant’s consultations with them. Lorenzen stated that
defense counsel had limited contact with the defendant,
by the defendant’s choice, and that the defendant’s
views could be characterized as not ‘‘reality based.’’
Lorenzen asserted that the defendant had not sought
their advice on whether to testify and he questioned
whether the defendant had the capacity to listen to any
such advice. Lorenzen then stated that, ‘‘to the extent
that [the defendant] does choose to take the stand, I
would have to take the position that he is doing so
uncounseled and in essentially . . . a manner in which
he is representing himself.’’ The defendant then inter-
jected that he wanted to speak for himself because
counsel was trying to ‘‘legally gag’’ him by saying that
he has a mental disorder. The court reiterated to the
defendant that he was required to speak through
counsel.
At the close of the state’s case-in-chief, defense coun-
sel informed the court that the defendant intended to
testify on his own behalf and that they had advised him
against doing so. Defense counsel indicated that the
defendant had declined their offer to help him prepare
for testifying and expressed concerns about his compe-
tency to make this choice. The court then explained to
the defendant that he had a right to choose whether to
testify. The defendant responded that he had told his
counsel that he wanted to testify, but that they were
‘‘trying to legally gag’’ him. In response to the court’s
suggestion that his counsel might be able to provide
useful advice regarding testifying, the defendant stated:
‘‘I’d rather speak on my behalf than talk to these two
guys here.’’ The court then ruled that the defendant
could not be forced to give up his right to testify.
Defense counsel then requested that the court con-
duct a competency hearing. Counsel asserted that the
defendant’s views did not comport with reality, pointing
to the defendant’s sincere belief that he did not commit
the crime because he was in the custody of the Depart-
ment of Correction at the time of the incident, a fact
that clearly could be disproved. The court denied coun-
sel’s request.
Defense counsel then contended that the court
needed to consider whether the defendant would be a
competent witness. After a brief canvass, the court
ruled that the defendant was a competent witness, not-
ing that even people with severe disabilities can be
competent to testify.
Having failed to persuade the court that competency
issues precluded the defendant from taking the stand,
defense counsel took a different tact. Lorenzen stated
that, based on the defendant’s failure to seek their coun-
sel and his belief that counsel was working against him,
it was Lorenzen’s ‘‘assessment of the situation . . .
that should [the defendant] take the stand and testify,
he will essentially be representing himself.’’ Lorenzen
asserted that he could not effectively examine the
defendant and meet the defendant’s ends, and, there-
fore, the defendant should be canvassed on represent-
ing himself. Lorenzen stated that defense counsel would
file a motion to withdraw if necessary. In response, the
trial court addressed the defendant, stating: ‘‘[Y]our
attorney is indicating that if you testify, you’ll be repre-
senting yourself. Do you understand that?’’ After the
court restated counsel’s position, the court asked the
defendant: ‘‘Is that what you want to do?’’ The defendant
initially responded that it did not make any difference
to him, but when further pressed by the court, he
responded, ‘‘I’ll do so . . . .’’ Twice thereafter, the
court asked the defendant whether he understood that
he had the right to be represented by counsel, to which
he answered in the affirmative. The court warned the
defendant of the disadvantages of self-representation,
and then ruled: ‘‘I have to let him self-represent . . . .
But I’m going to appoint counsel as standby counsel,
certainly for periods of—for purposes of objection dur-
ing the cross-examination. . . . Well, standby counsel
for purposes of his testimony only.’’
Defense counsel examined four defense witnesses,
and then the defendant took the stand. Per the court’s
instruction, Lorenzen asked the defendant some prelim-
inary questions, after which he asked: ‘‘Is there anything
else you’d like to tell the ladies and gentlemen of the
jury about this case?’’ The defendant responded with
a largely incoherent statement.1 The state then con-
ducted its cross-examination, without any objections
being interposed. The defendant declined the court’s
invitation to present additional testimony on redirect
examination. Thereafter, defense counsel examined
another witness and presented closing argument.
During the presentation of the defense, another issue
arose when a juror submitted a note to the court relating
to the testimony of a defense witness. After the court
questioned the juror, it excused him and substituted an
alternate juror. The jury thus constituted returned a
verdict of guilty on the charge of murder. The trial court
rendered judgment in accordance with the verdict and
sentenced the defendant to a fifty year term of incar-
ceration.
In the defendant’s appeal from the judgment of con-
viction before the Appellate Court,2 he claimed, among
other things, that the trial court improperly had: (1)
forced him to choose between two fundamental consti-
tutional rights—his right to counsel and his right to
testify; and (2) dismissed the juror. State v. Francis,
supra, 148 Conn. App. 791. The Appellate Court rejected
both claims, as well as others not relevant to this certi-
fied appeal, and affirmed the judgment. Id. With respect
to the first issue, the Appellate Court concluded that
the record was unclear as to whether defense counsel
was no longer representing the defendant when he testi-
fied. Id., 812. Nonetheless, the court concluded that,
even assuming the defendant had been self-represented,
the trial court properly had canvassed him to ensure
that his choice to proceed pro se had been made in a
knowing and intelligent fashion. Id., 814. With respect
to the second issue, the court concluded that, although
the juror expressly had stated he had not formed an
opinion as to the defendant’s guilt or innocence, the
record nonetheless indicated there was a legitimate
concern that the juror had done so. Id., 818. The Appel-
late Court further noted that the defendant had not
shown that the juror’s dismissal was harmful. Id.
This court thereafter granted the defendant’s petition
for certification to appeal, limited to the following
issues: ‘‘1. Did the Appellate Court properly conclude
that the defendant waived his right to counsel when he
elected to testify at trial?’’; and ‘‘2. Did the Appellate
Court properly conclude that the trial court did not
abuse its discretion when it dismissed a juror and, if
not, did the trial court’s improper dismissal of a juror
constitute reversible error?’’ State v. Francis, 311 Conn.
940, 89 A.3d 349 (2014). We answer the first question
in the negative and conclude that the defendant is enti-
tled to a new trial on that basis, and, therefore, we do
not reach the second question.3
The defendant contends that the record is clear that
he was self-represented during his testimony, but it
does not clearly demonstrate that he understood and
voluntarily waived his right to counsel for that period.
In the trial court, the defendant did not challenge the
propriety of that court’s decision to canvass him or the
substance of that canvass. He seeks review, therefore,
under State v. Golding, 213 Conn. 233, 567 A.2d 823
(1989). See id., 239–40 (permitting defendant to prevail
on unpreserved claim only if: ‘‘[1] the record is adequate
to review the alleged claim of error; [2] the claim is
of constitutional magnitude alleging the violation of a
fundamental right; [3] the alleged constitutional viola-
tion clearly exists and clearly deprived the defendant
of a fair trial; and [4] if subject to harmless error analy-
sis, the state has failed to demonstrate harmlessness of
the alleged constitutional violation beyond a reasonable
doubt’’ [footnote omitted]). We conclude that the defen-
dant has met the requirements for relief under Golding.
The sixth amendment to the United States constitu-
tion guarantees a criminal defendant the right to the
assistance of counsel at trial. Gideon v. Wainwright,
372 U.S. 335, 339, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963).
‘‘This is not to say that a criminal defendant is barred
from waiving his right to counsel. Just as an accused
is entitled to the assistance of counsel, so also is a
criminal defendant guaranteed the right to self-repre-
sentation. Faretta v. California, 422 U.S. 806, 95 S. Ct.
2525, 45 L. Ed. 2d 562 (1975).’’ United States v. Scott,
909 F.2d 488, 489 (11th Cir. 1990). The assistance of
counsel and the right to defend as a self-represented
party ‘‘form a single, inseparable bundle of rights, two
faces of the same coin.’’ United States v. Plattner, 330
F.2d 271, 276 (2d Cir. 1964). Thus, ‘‘[t]he right to counsel
and the right to self-representation present mutually
exclusive alternatives. A criminal defendant has a con-
stitutionally protected interest in each, but since the
two rights cannot be exercised simultaneously, a defen-
dant must choose between them.’’ (Internal quotation
marks omitted.) State v. Henderson, 307 Conn. 533, 546,
55 A.3d 291 (2012). ‘‘The right to defend is personal.
The defendant, and not his lawyer or the [s]tate, will
bear the personal consequences of a conviction. It is
the defendant, therefore, who must be free personally
to decide whether in his particular case counsel is to
his advantage.’’ Faretta v. California, supra, 834.
‘‘Before allowing pro se representation . . . a trial
judge must make sure that certain prerequisites have
been satisfied because an individual who undertakes
self-representation is at a significant disadvantage com-
pared to someone defended by counsel. First, a defen-
dant’s invocation of the right to self-representation must
be contained in unequivocal language.’’ (Internal quota-
tion marks omitted.) United States v. Robinson, 753
F.3d 31, 42 (1st Cir.), cert. denied, U.S. , 135 S.
Ct. 313, 190 L. Ed. 2d 227 (2014); accord State v. Jones,
281 Conn. 613, 648, 916 A.2d 17, cert. denied, 552 U.S.
868, 128 S. Ct. 164, 169 L. Ed. 2d 112 (2007). ‘‘The
threshold requirement that the defendant clearly and
unequivocally invoke his right to proceed pro se is one
of many safeguards of the fundamental right to counsel.
See United States v. Frazier-El, 204 F.3d 553, 558 (4th
Cir.) ([t]he particular requirement that a request for self-
representation be clear and unequivocal is necessary to
protect against an inadvertent waiver of the right to
counsel by a defendant’s occasional musings on the
benefits of self-representation . . .), cert. denied, 531
U.S. 994, 121 S. Ct. 487, 148 L. Ed. 2d 459 (2000). . . .
To invoke his [s]ixth [a]mendment right [to self-repre-
sentation] under Faretta [v. California, supra, 422 U.S.
806] a defendant does not need to recite some talis-
manic formula hoping to open the eyes and ears of the
court to his request. Insofar as the desire to proceed
pro se is concerned, [a defendant] must do no more
than state his request, either orally or in writing, unam-
biguously to the court so that no reasonable person can
say that the request was not made. . . . [I]t is generally
incumbent upon the courts to elicit that elevated degree
of clarity through a detailed inquiry.’’ (Citations omitted;
internal quotation marks omitted.) State v. Flanagan,
293 Conn. 406, 423–24, 978 A.2d 64 (2009).
‘‘Second . . . a waiver of counsel must be knowing,
intelligent and voluntary.’’ (Internal quotation marks
omitted.) United States v. Robinson, supra, 753 F.3d
42. Before deeming such a waiver to have been made,
the trial judge is required to ‘‘indulge in every reasonable
presumption against waiver of the right to counsel’’ and
‘‘investigate as long and as thoroughly as the circum-
stances of the case before him [or her] demand.’’ (Inter-
nal quotation marks omitted.) United States v. Proctor,
166 F.3d 396, 401–402 (1st Cir. 1999); accord Brewer v.
Williams, 430 U.S. 387, 404, 97 S. Ct. 1232, 51 L. Ed.
2d 424 (1977). ‘‘[I]t is important that the court consider
whether the defendant affirmatively made a choice or
whether he proceeded alone only because he felt he
had no choice and thus did not effectively waive his
right.’’ (Internal quotation marks omitted.) United
States v. Calabro, 467 F.2d 973, 985 (2d Cir. 1972), cert.
denied sub nom. Tortorello v. United States, 410 U.S.
926, 93 S. Ct. 1357, 35 L. Ed. 2d 587 (1973). Violation
of the right to counsel at a critical stage of the criminal
proceedings is structural error, requiring a new trial
without proof of actual prejudice. See, e.g., State v.
Mebane, 204 Conn. 585, 588, 595, 529 A.2d 680 (1987)
(reversal required when defendant was prevented from
speaking with counsel during recess in midst of state’s
cross-examination), cert. denied, 484 U.S. 1046, 108 S.
Ct. 784, 98 L. Ed. 2d 870 (1988); see also State v. Brown,
279 Conn. 493, 507 n.5, 903 A.2d 169 (2006); State v.
Peeler, 265 Conn. 460, 475, 828 A.2d 1216 (2003), cert.
denied, 541 U.S. 1029, 124 S. Ct. 2094, 158 L. Ed. 2d
710 (2004).
A criminal defendant also has a right to testify on his
own behalf, secured by the fifth, sixth, and fourteenth
amendments to the federal constitution. See Rock v.
Arkansas, 483 U.S. 44, 51–52, 107 S. Ct. 2704, 97 L. Ed.
2d 37 (1987). ‘‘The right to testify includes the right to
testify fully, without perjury, to matters not precluded
by a rule of evidence.’’ Wilson v. State, 12 So. 3d 292,
297 (Fla. App. 2009), citing Nix v. Whiteside, 475 U.S.
157, 173, 106 S. Ct. 988, 89 L. Ed. 2d 123 (1986); United
States v. Scott, supra, 909 F.2d 491.
It is not uncommon for trial counsel and a defendant
to disagree as to whether the defendant should testify.
The defendant’s right to testify, however, cannot be
waived by counsel. See State v. Davis, 199 Conn. 88,
95, 506 A.2d 86 (1986). Indeed, in the absence of an
intention to offer perjurious testimony, ‘‘[i]f a defendant
insists on testifying, no matter how unwise such a deci-
sion, the attorney must comply with the request.’’
Ortega v. O’Leary, 843 F.2d 258, 261 (7th Cir.), cert.
denied, 488 U.S. 841, 109 S. Ct. 110, 102 L. Ed. 2d 85
(1988); accord United States v. Curtis, 742 F.2d 1070,
1076 (7th Cir. 1984), cert. denied, 475 U.S. 1064, 106 S.
Ct. 1374, 89 L. Ed. 2d 600 (1986). ‘‘[I]f counsel believes
that it would be unwise for the defendant to testify,
counsel may, and indeed should, advise the client in
the strongest possible terms not to testify. The defen-
dant can then make the choice of whether to take the
stand with the advice of competent counsel. It is
important to remember that while defense counsel
serves as an advocate for the client, it is the client who
is the master of his or her own defense. . . . The wis-
dom or unwisdom of the defendant’s choice does not
diminish his right to make it. . . . By exercising his
constitutional right to the assistance of counsel, a defen-
dant does not relinquish his right to set the parameters
of that representation.’’ (Citations omitted; emphasis
omitted; footnote omitted; internal quotation marks
omitted.) United States v. Teague, 953 F.2d 1525, 1533
(11th Cir.), cert. denied, 506 U.S. 842, 113 S. Ct. 127,
121 L. Ed. 2d 82 (1992).
With these foundational principles in mind, we turn
to the facts in the present case to ascertain whether,
as the defendant contends, he was forced to represent
himself in order to vindicate his right to testify on his
own behalf. We begin with the threshold question of
whether the defendant was represented by counsel dur-
ing his testimony. We conclude that the record reflects
that he was not.
The record reflects that the court and defense counsel
understood the defendant to be self-represented during
his testimony. Defense counsel made it abundantly
clear that they had no intention of representing the
defendant should he testify and would file a motion to
withdraw if necessary to avoid doing so. After can-
vassing the defendant regarding the pitfalls of proceed-
ing pro se, the trial court ruled that it would have to
let the defendant ‘‘self-represent . . . during this point
. . . .’’ Consistent with this ruling, the court’s docket
sheet reflects the court clerk’s notations indicating that,
for purposes of the defendant’s testimony only, the
defendant was allowed to represent himself and
standby counsel was appointed. It further indicated
that, for the remainder of the trial, counsel was retained
to represent the defendant. Because of this ruling,
defense counsel did not need to file a motion to with-
draw, as their temporary status as standby counsel rem-
edied the representation problem that they had sought
to avoid.
The presentation of the defendant’s testimony was
consistent with self-representation. The essential fea-
ture of self-representation is the defendant’s actual con-
trol of the presentation of his case. See McKaskle v.
Wiggins, 465 U.S. 168, 177, 104 S. Ct. 944, 79 L. Ed. 2d
122 (1984) (‘‘[i]n determining whether a defendant’s
Faretta rights [to self-representation] have been
respected, the primary focus must be on whether the
defendant had a fair chance to present his case in his
own way’’); State v. Shashaty, 251 Conn. 768, 778, 742
A.2d 786 (1999) (‘‘defendant’s constitutional right to
self-representation requires that he have actual control
over the case he chooses to present to the jury’’ [internal
quotation marks omitted]), cert. denied, 529 U.S. 1094,
120 S. Ct. 1734, 146 L. Ed. 2d 653 (2000). Here, the
defendant was permitted to set forth an unguided, unin-
terrupted narrative to the jury of the facts he deemed
relevant to his case. He also was permitted to amplify
those remarks on redirect examination, but he declined
to do so.
The trial court’s appointment of defense counsel as
standby counsel for the duration of the defendant’s
testimony was consistent with the defendant’s self-rep-
resentation. See State v. Wang, 312 Conn. 222, 263 n.37,
92 A.3d 220 (2014) (‘‘standby counsel’s advisory role
. . . does not supplant the defendant’s fundamental
right to represent himself, and, therefore, does not
amount to legal representation’’); see also Practice
Book § 44-4 (‘‘[w]hen a defendant has been permitted to
proceed without the assistance of counsel, the judicial
authority may appoint standby counsel’’). As the United
States Supreme Court has explained, ‘‘Faretta rights
are . . . not infringed when standby counsel assists
the pro se defendant in overcoming routine procedural
or evidentiary obstacles to the completion of some spe-
cific task, such as introducing evidence or objecting
to testimony, that the defendant has clearly shown he
wishes to complete. Nor are they infringed when coun-
sel merely helps to ensure the defendant’s compliance
with basic rules of courtroom protocol and procedure.
In neither case is there any significant interference with
the defendant’s actual control over the presentation of
his defense.’’ McKaskle v. Wiggins, supra, 465 U.S. 183.
Indeed, in the present case, the trial court assigned
standby counsel the limited role of asking the defendant
introductory questions and asserting objections during
cross-examination, specifically to questions that went
beyond the scope of direct examination, although
standby counsel in fact asserted no objections. The
defendant agreed to standby counsel’s role. Accord-
ingly, we conclude that the defendant was self-repre-
sented during his testimony.
Having resolved this threshold question, we turn to
the matter of whether the requirements for self-repre-
sentation were met. We note at the outset that the
defendant’s appellate counsel represented at oral argu-
ment before this court, without contradiction by the
state, that trial counsel’s reason for seeking to disassoci-
ate themselves from the defendant’s testimony was not
predicated on information or belief that the defendant
intended to commit perjury. Therefore, the defendant
would be entitled to choose whether to be represented
by counsel or to represent himself.
We first observe the absence of a clear, unequivocal
statement by the defendant that he wanted to represent
himself. See United States v. Robinson, supra, 753 F.3d
42; State v. Jones, supra, 281 Conn. 648. Prior to the
court’s canvass on that issue, the defendant never asked
to proceed pro se. Indeed, defense counsel never even
represented that the defendant had expressed a desire
to do so and acknowledged that he had not asked them
to withdraw. Although the defendant made two remarks
indicating that he would rather speak for himself than
talk to counsel, those remarks were made in connection
with the discussion of whether the defendant was com-
petent to decide whether to testify. Thus, the context
surrounding those two remarks made clear that the
defendant was not expressing a desire to represent
himself but rather a desire to testify and his choice not
to discuss that decision further with counsel because
they were trying to thwart his intentions. Indeed, the
court undertook no inquiry regarding representation in
response to those remarks.
The court’s subsequent decision to canvass the defen-
dant regarding waiver of counsel was prompted by
defense counsel’s statement of their position. The can-
vass, therefore, was not in response to any desire that
the defendant had expressed, but, rather, those of
defense counsel. The defendant’s responses to the
court’s questions of whether he wanted to represent
himself reflect first, indifference—‘‘It doesn’t make a
difference, ma’am’’—and then, acquiescence—’’I’ll do
so, ma’am.’’ Neither statement reflects a clear desire to
proceed without the aid of counsel. Cf. People v. Shelley,
156 Cal. App. 3d 521, 533, 202 Cal. Rptr. 874 (1984)
(defendant’s ‘‘mere acquiescence in his trial counsel’s
handling of the case does not constitute an intentional
relinquishment or abandonment of a known right or
privilege’’ [internal quotation marks omitted]), quoting
Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82
L. Ed. 1461 (1938).
Even more problematic, the trial court’s statements
to the defendant in that canvass reasonably would have
been understood by him to mean that, if he elected to
testify, he could do so only if he represented himself.
Although this was defense counsel’s position, the court
twice relayed that position to the defendant without
clearly explaining that he was constitutionally entitled
to the assistance of counsel even if he elected to testify.4
The court’s subsequent statements reminding the defen-
dant that he had the right to counsel, untethered to
his choice of testifying, did not sufficiently clarify this
matter. The court never explained that, despite coun-
sel’s position, the court could compel his counsel to
remain in the case in the absence of a showing of good
cause to withdraw; see Practice Book § 3-10; or it could
appoint substitute counsel. See State v. Harman, 198
Conn. 124, 130, 502 A.2d 381 (1985) (‘‘Trial courts have
an unquestioned obligation, under both the state and
the federal constitutions, to provide indigent defen-
dants with legal representation. . . . If appointed
counsel withdraws from the case for good cause, the
trial court must furnish a new attorney for the defen-
dant.’’ [Citations omitted.]); see also Practice Book § 3-
10 (c) (if counsel seeks to withdraw, the defendant
must be informed by counsel ‘‘that if the motion to
withdraw is granted the [defendant] should request
court appointed counsel, obtain another attorney or file
an appearance on his or her own behalf with the court’’).
Thus, the court effectively conveyed to the defendant
that he had two, and only two, choices: (1) testify and
self-represent; or (2) relinquish the right to testify and
maintain the assistance of counsel.
‘‘[A] defendant will not normally be deemed to have
waived the right to counsel by reluctantly agreeing to
proceed pro se under circumstances where it may
appear that there is no choice.’’ (Internal quotation
marks omitted.) Pazden v. Maurer, 424 F.3d 303, 318
(3d Cir. 2005); see also United States v. Calabro, supra,
467 F.2d 985 (court should consider whether defendant
‘‘proceeded alone only because he felt he had no choice
and thus did not effectively waive his right’’ [internal
quotation marks omitted]). In this case, the defendant
‘‘was put to a Hobson’s choice: decline to testify and
lose the opportunity of conveying his version of the
facts to the jury, or take the stand and [forgo] his funda-
mental right to be assisted by counsel. . . . A defen-
dant in a criminal proceeding is entitled to certain rights
and protections which derive from a variety of sources.
He is entitled to all of them; he cannot be forced to
barter one for another. When the exercise of one right
is made contingent upon the forbearance of another,
both rights are corrupted.’’ (Internal quotation marks
omitted.) United States ex rel. Wilcox v. Johnson, 555
F.2d 115, 120 (3d Cir. 1977); accord United States v.
Midgett, 342 F.3d 321, 327 (4th Cir. 2003) (‘‘in the cir-
cumstances of this case, the court impermissibly forced
the defendant to choose between two constitutionally
protected rights: the right to testify on his own behalf
and the right to counsel’’); United States v. Scott, supra,
909 F.2d 493 (‘‘[t]o advise [the defendant] that he could
be precluded from testifying, without confirmation that
[he] intended to commit perjury, or could proceed pro
se impermissibly forced [the defendant] to choose
between two constitutionally protected rights’’); Wilson
v. State, supra, 12 So. 3d 293 (‘‘This case concerns a
defendant’s desire to testify in greater detail about the
incidents giving rise to the criminal charges, confronted
by his attorney’s belief that more testimony was not a
good idea. The judge offered the defendant the choice
of testifying further by giving up his attorney, and repre-
senting himself. . . . We hold that the trial court
improperly forced a choice between two constitutional
rights . . . .’’); see also Nichols v. Butler, 953 F.2d 1550,
1553 (11th Cir. 1992) (counsel failed to function as coun-
sel guaranteed by sixth amendment by threatening to
withdraw during trial in order to coerce defendant to
relinquish his fundamental right to testify).
In the present case, it is clear that the defendant
cannot be deemed to have voluntarily waived his right
to counsel. ‘‘[T]he very essence of a voluntary waiver
is that it be the product of a free and meaningful choice.
Moore v. Michigan, 355 U.S. 155, 164, [78 S. Ct. 191], 2
L. Ed. 2d 167 (1957); Wilks v. Israel, 627 F.2d 32, 35
(7th Cir. 1980); Maynard v. Meachum, 545 F.2d 273,
278 (1st Cir. 1976).’’ McKee v. Harris, 649 F.2d 927, 931
(2d Cir. 1981), cert. denied, 456 U.S. 917, 102 S. Ct. 773,
72 L. Ed. 2d 177 (1982). Because the defendant was
improperly deprived of counsel, he need not prove prej-
udice and is entitled to a new trial.5
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the judgment of the trial court and to remand
the case to that court for a new trial.
In this opinion ROGERS, C. J., and PALMER and
EVELEIGH, Js., concurred.
1
The defendant stated: ‘‘Due to today’s session, I have acknowledged that
my whereabouts would contradict any charges that would be brought against
me, and I acknowledge today also that the state of Connecticut and Bruce
Lorenzen and William O’Connor is attempting to slave, gamble, and incompe-
tent to commit by probate without a cause to embezzle due to the fact that
this matter does not have a cause of death.
‘‘And I also have some other notes, that I’m not booked or arraigned and
my identity has been gambled by Major Crimes Division also at the same
time—and also by an attorney by the name of Cynthia I. Crockett gambled
my name by settling a claim in my little brother’s name, Maurice Francis,
and that’s fiber optic. On November 16, 80 Washington Street, which can
also be subpoenaed too and sent in for permanencies. I am legally disabled.’’
2
The defendant directly appealed from the judgment of conviction to this
court pursuant to General Statutes § 51-199 (b) (3), raising five claims. We
transferred the appeal to the Appellate Court pursuant to § 51-199 (c) and
Practice Book § 65-1.
3
We make the following observation, however, as to the second certified
question. The defendant contends that the Appellate Court improperly con-
cluded that the trial court did not abuse its discretion in dismissing the
juror for beginning to form an opinion about the verdict because: (1) the
trial court misconstrued the meaning of deliberation as extending to a juror’s
internal thought process during trial about how evidence relates to other
evidence in the case; and (2) there was nothing in the record to contradict
or call into question the juror’s express representations to the trial court that
he had not begun to form an opinion about the verdict, and the prosecutor’s
speculation that the juror’s manner evidenced that he nonetheless had
contravened the court’s instructions was not a proper basis to conclude
otherwise. Our failure to reach these issues in light of our dispositive conclu-
sion as to the first certified question should not be construed as sanctioning
the Appellate Court’s view of the law or the record.
4
The state contends that the defendant is not entitled to review of this
claim because his counsel induced the error. We disagree. We note that the
state never asserted induced error in the Appellate Court, although that
court did, in a footnote, characterize the defendant’s claim as having attri-
butes similar to claims rejected under the doctrine of induced error. See
State v. Francis, supra, 148 Conn. App. 813 n.14. ‘‘We ordinarily decline to
consider claims that [were] not raise[d] properly before the Appellate Court
. . . .’’ State v. Fauci, 282 Conn. 23, 26 n.1, 917 A.2d 978 (2007). We also
observe that the right to counsel could not be waived by counsel and that
the court had an independent obligation to canvass the defendant to ensure
that his waiver was voluntary. See United States v. Midgett, 342 F.3d 321,
326–27 (4th Cir. 2003) (‘‘The issue on appeal . . . is not whether counsel
was ineffective so as to warrant a new trial, but whether the district court
erred by forcing [the defendant] to choose between testifying or retaining
counsel. We believe that, in the circumstances of this case, the court did
err in this regard, given that the court effectively mirrored defense counsel’s
error by deciding that [the defendant’s] testimony would be perjurious.’’).
5
In support of its contrary conclusion, the dissent takes a view of the
record that differs from that of the trial court itself, disagrees with the
state’s own characterization of the questioning that preceded the defendant’s
self-guided narrative, and relies on case law addressing matters inapplicable
to the actual facts and issues in the present case (for example, whether a
less comprehensive warning about the dangers of self-representation can
be given when a defendant elects to testify in the narrative when seeking
to conduct his entire defense, whether a trial court can require a defendant
to testify in narrative form when the court is informed that the defendant
intends to present perjurious testimony, and whether a defendant who
refuses the assistance of counsel may be forced to choose between unwanted
counsel and self-representation). Notably, the state does not rely on any
of them.