State v. Francis ( 2015 )

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STATE v. FRANCIS—DISSENT
ESPINOSA, J., with whom ZARELLA and ROBINSON,
Js., join, dissenting. The majority concludes that a crimi-
nal defendant who insists on taking the stand to testify
in his own defense, but who refuses to cooperate or
even to speak with his assigned counsel so that they
can prepare him for examination, is deprived of his
sixth amendment right to counsel if the trial court con-
cludes that the only way to accommodate his conflicting
demands is to require that he testify in narrative form,
with his public defenders temporarily assisting as
‘‘standby counsel.’’ I disagree that this reasonable solu-
tion to a conundrum entirely of the defendant’s own
making amounts to a constitutional violation. Accord-
ingly, I respectfully dissent, and would affirm the judg-
ment of the Appellate Court.
I
THE DEFENDANT WAS NOT DENIED THE
RIGHT TO COUNSEL
I first conclude that the defendant, Maurice Francis,
was not denied the right to counsel when making his
brief narrative statement. The following facts are rele-
vant to the disposition of this claim. It is undisputed
that defense counsel, Bruce Lorenzen and William
O’Connor, actively and adequately represented the
defendant throughout the pretrial process and during
the state’s presentation of its case. After the state rested,
counsel continued to put on a vigorous defense. Prior
to calling the defendant, counsel called and questioned
four witnesses: Noel Hernandez, a neighbor of the
defendant at the time of the murder of the victim, Tas-
hima Reddick; Brenton Alexander, a former neighbor
and friend of the defendant who had dated the defen-
dant’s mother; and Sachin Parekh and Douglas McAdoo,
two physicians in the emergency department of an area
hospital who treated the victim in the months prior to
her murder. When the defendant then opted to proceed
with his plan to testify, defense counsel questioned him
at some length, asking him twenty-seven questions prior
to inviting his narrative statement. Although the Appel-
late Court characterized these questions as merely ‘‘pre-
liminary’’; State v. Francis, 148 Conn. App. 788, 811, 86
A.3d 1074 (2014); in fact, most of the direct examination
was comprised of substantive questions calculated to
afford the defendant an opportunity to develop the two
theories of the case that he attempted to articulate
throughout the trial: (1) that he was incarcerated at the
time of the murder and, therefore, he could not have
committed it; and (2) that the case was one of mistaken
identity, in which the proper defendant was an alleged
half brother of the defendant with the nearly identical
name of Mourice Francis. For example, defense counsel
questioned the defendant as to: whether he was the
speaker on a 911 tape reporting the victim’s death (he
claimed not to be); whether he had been incarcerated
at the time of the murder (he claimed to have been);
whether he knew the victim or had any knowledge
of the events surrounding her death (he denied any
knowledge thereof); and the nature of his relationship
to other members of the Francis family (he claimed
that his mother’s name was Pam and that Viola Francis,
the woman who claimed to be his mother, was, in fact,
the mother of the purported half brother, Mourice).
Defense counsel also attempted to question the defen-
dant regarding medications that he had been prescribed
while incarcerated, presumably in an effort to raise
doubts as to his mental competence, but the court sus-
tained the state’s objection to that line of inquiry.
Accordingly, although the dozens of questions that
counsel asked the defendant on direct examination may
have been preliminary in the limited sense that they
preceded his narrative testimony, they sought to
develop a substantive defense and to elicit the defen-
dant’s theory of the case, and did not merely set the
table for the brief narrative statement that followed.
After the defendant gave his narrative statement,
defense counsel was available on what the court charac-
terized as a ‘‘standby’’ basis to object to the state’s
brief cross-examination. No objection was warranted,
however, as the prosecutor did not attempt to exceed
the scope of direct examination, and merely questioned
the defendant about his knowledge of the victim, his
relationship to Viola Francis, and his involvement in
the events surrounding the victim’s murder. There was
no redirect examination.
Following the defendant’s testimony, defense coun-
sel resumed their traditional role. They called Viola
Francis as a sixth defense witness and, once again,
attempted to verify the defendant’s story that he had
been mistaken for a half brother named Mourice. The
defense team subsequently cross-examined the state’s
rebuttal witnesses, sought favorable jury instructions,
renewed their request that the court order a compe-
tency evaluation of the defendant, and presented a vig-
orous and substantial closing argument.
It is clear, then, that the only portion of the trial
during which defense counsel was not engaged in fully
and actively representing the defendant was the brief
period when he presented his narrative statement, a
statement that is largely incoherent and spans only eigh-
teen lines of transcript. Defense counsel invited this
narrative statement, following his direct examination
of the defendant, by asking him: ‘‘Is there anything else
you’d like to tell the ladies and gentlemen of the jury
about this case?’’ The defendant responded: ‘‘Well, I
have some notes that I’ve been documenting about what
I’ve been acknowledging, that’s about that. Is it fair that
I state that?’’ After the court offered him the choice
whether to proceed, the defendant stated, ‘‘I’ll proceed,’’
and then, following a brief interruption by the court,
made the following statement: ‘‘Due to today’s session,
I have acknowledged that my whereabouts would con-
tradict any charges that would be brought against me,
and I acknowledge today also that the state of Connecti-
cut and . . . Lorenzen and . . . O’Connor is
attempting to slave, gamble, and incompetent 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 broth-
er’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.’’1 When asked if he wished to add any-
thing further, the defendant responded, ‘‘No, ma’am.’’
Although neither this court nor the United States
Supreme Court has spoken directly to the issue, a num-
ber of our sister courts have concluded that the sixth
amendment right to counsel is not infringed when a
criminal defendant makes this sort of brief narrative
statement to the jury, unmediated by counsel, but other-
wise enjoys the benefit of full legal representation
throughout the trial process. See, e.g., Feole v. Wall,
Docket No. C.A. 02-518S, 2004 WL 350036, *8–9 (D.R.I.
February 23, 2004) (when defense counsel provided
able representation throughout entire trial but was
unprepared and unwilling to examine defendant,
reviewing court found no violation of right to counsel
in trial court’s granting of defendant’s eleventh hour
request to testify, conditioned on his testifying unas-
sisted, in narrative form); People v. Nakahara, 30 Cal.
4th 705, 717–18, 68 P.3d 1190, 134 Cal. Rptr. 2d 223
(2003) (trial court was not required to obtain defen-
dant’s express waiver of right to counsel when defen-
dant had assistance of counsel at all stages of trial
except during narrative statement, in which counsel
was unable to assist); cf. People v. Guzman, 45 Cal. 3d
915, 946, 755 P.2d 917, 248 Cal. Rptr. 467 (1988) (where
defendant was ‘‘ ‘forced’ ’’ to represent himself only
with respect to his own direct testimony and counsel
was available for and participated in all other stages of
trial, it was not necessary that trial court’s warnings
about dangers of self-representation be as complete),
cert. denied, 488 U.S. 1050, 109 S. Ct. 882, 102 L. Ed.
2d 1005 (1989), overruled in part on other grounds by
Price v. Superior Court, 25 Cal. 4th 1046, 25 P.3d 618,
108 Cal. Rptr. 2d 409 (2001).2
The rationale underlying those decisions is compel-
ling. Narrative testimony is, by definition, a form of
testimony in which ‘‘defendants testify without ques-
tioning by counsel . . . .’’ L. Perrin, ‘‘The Perplexing
Problem of Client Perjury,’’ 76 Fordham L. Rev. 1707,
1737 (2007). To the extent that narrative testimony is
appropriate in a given situation, then, the fact that
defense counsel merely asks an open-ended question
inviting the narrative response, and then permits the
defendant to answer, does not deprive the defendant
of legal representation, any more than a defendant is
unrepresented during other stages of the trial during
which counsel plays a more passive role. There is, quite
simply, nothing else for defense counsel to do during
that portion of the trial.
In the present case, although the majority apparently
believes that the use of the narrative format was inap-
propriate, it never tells us exactly what the alternative
might have been. This was a case in which the defendant
refused to meet or even to speak with his defense team.
He specifically refused counsel’s offer to help him pre-
pare to testify. In addition, the defendant’s beliefs and
theories went well beyond the implausible and the far-
fetched. His statements, both to the court and to the
jury, were frequently incoherent. He repeatedly
claimed, for example, that his identity and his alibi
could be established via ‘‘fiber optic’’ or ‘‘fiber optic
audio,’’ and his narrative testimony was a rambling dia-
tribe in which he accused various attorneys of
attempting to ‘‘gamble’’ and ‘‘slave’’ him, and of ‘‘com-
mit[ting] by probate without a cause to embezzle
. . . .’’ Under those circumstances, I do not believe that
defense counsel, having made a valiant effort to elicit
the defendant’s bizarre beliefs through direct ques-
tioning, could have provided any further assistance
beyond what they in fact did: inviting him to tell the
jury anything else he wished to about the case.
To be clear, my view is not that the defendant was
deprived of his right to counsel and that that deprivation
amounted to harmless error, but, rather, that the defen-
dant never was deprived of his right to counsel. There
was, quite simply, nothing more that the defendant’s
attorneys—or any other attorneys who might have
replaced them—could have done to represent him effec-
tively while still allowing him to speak his piece.
In support of its conclusion that the defendant was
deprived of legal representation during his narrative
testimony, the majority argues, first, that ‘‘defense coun-
sel understood the defendant to be self-represented
during his testimony,’’ and, second, that defense coun-
sel ‘‘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.’’3 I disagree with the majority’s characteriza-
tion of the record in both respects. A more accurate
characterization of the record is that defense counsel
never actually stated that they believed the defendant
to be self-represented, nor did they ever threaten to
withdraw if the defendant testified.
With respect to counsel’s understanding of the defen-
dant’s status, the majority relies entirely on statements
made by Lorenzen, statements in which Lorenzen
repeatedly and carefully qualified any allusions to self-
representation. The issue arose when the court, in
response to the defendant’s frequent outbursts,
informed the defendant that, if he wished to make a
statement, he would have to take the stand, testify under
oath and be subject to cross-examination. Lorenzen
responded: ‘‘I understand. But at this point, to the extent
he does choose to take the stand, I would have to take
the position that he is doing so uncounseled and in
essentially in a manner in which he’s representing him-
self.’’ (Emphasis added.) Revisiting the issue at the close
of the state’s case, Lorenzen again represented to the
court that, in light of the defendant’s complete refusal
to cooperate in preparing for his testimony, ‘‘should
[the defendant] take the stand and testify, he will essen-
tially be representing himself.’’ (Emphasis added.) Lor-
enzen then elaborated: ‘‘I don’t see how I can effectively
. . . examine [the defendant] directly. I don’t believe I
have the ability to effectively do that and meet his ends
and that’s why I would assert and I believe he should
be canvassed on representing himself.’’ (Emphasis
added.) In other words, although Lorenzen, out of an
abundance of caution, framed his request to the court
in terms of canvassing the defendant on self-representa-
tion, it is clear in context that his primary concern was
merely to ensure that both the court and the defendant
understood that the defendant was setting forth on a
perilous path—one in which he would exercise his right
to testify on his own behalf, and thereby risk incriminat-
ing himself, without the benefit of informed legal
advice, preparation, and assistance. I am aware of no
authority for the proposition that a criminal defendant
who is assisted by counsel, but who essentially repre-
sents himself insofar as he refuses to cooperate with
counsel in preparing for his direct examination, is
thereby deprived of his sixth amendment rights.
With respect to counsel’s alleged threat to withdraw
if the defendant insisted on testifying, I disagree with
the majority’s characterization of the record. The only
facts of relevance arise from the following colloquy,
which transpired at the close of the state’s case, when
defense counsel informed the court that the defendant,
who wished to testify, believed that defense counsel
was ‘‘working against him’’:
‘‘The Court: [The defendant] hasn’t waived counsel.
‘‘[Defense Counsel]: He has not, but—
‘‘The Court: [The defendant] has the waiver, not you.
Are you withdrawing?
‘‘[Defense Counsel]: Judge, I don’t see how I can
effectively—it would fall to me—based on . . . O’Con-
nor’s and [my] discussion it fall[s] to me to examine
[the defendant] directly. I don’t believe I have the ability
to effectively do that and meet his ends and that’s why
I would assert and I believe he should [be] canvassed
on representing himself.
‘‘The Court: You’re not withdrawing, correct? You’re
not filing a motion to withdraw?
‘‘[Defense Counsel]: He’s—Judge, he’s not asked me
to. If we need to—if we need to do that to flush out
the issue—because I think that’s really the issue about
him representing himself here. Because—
‘‘The Court: You haven’t filed one?
‘‘[Defense Counsel]: I have not filed one, but I will if
that’s what I need to do.’’
I see nothing in this colloquy to support the majority’s
conclusion that ‘‘[d]efense 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.’’ Rather, it
was the court that repeatedly raised the question of
withdrawal. Lorenzen thrice declined to state that he
intended to withdraw. Instead, he merely offered to do
so if the court thought it necessary to ‘‘flush out’’ the
issue. Nor is there any evidence in the record that his
cocounsel, O’Connor, ever threatened to withdraw if
the defendant were to testify.4
I further note that, when it came time for the defen-
dant to give his narrative statement, the court inquired
whether Lorenzen wished to remain seated. Lorenzen
responded: ‘‘I guess it would work best if I did not.’’
The fact that defense counsel stood throughout the
defendant’s testimony strongly suggests that counsel
did not understand the defendant to be unrepresented
during that time, and did not wish to give the jury
such an impression. Accordingly, I reject the majority’s
conclusion that defense counsel understood the defen-
dant to be self-represented during his narrative tes-
timony.
With respect to the trial court’s perspective, I concede
that the trial court canvassed the defendant on self-
representation, indicated to the defendant that he
would be representing himself during his testimony,
and identified Lorenzen as ‘‘standby counsel’’ for the
purposes of the defendant’s testimony, and that the
docket sheet notates these actions. It is well estab-
lished, however, that, in hybrid representation arrange-
ments such as the one that the court imposed here, the
use of labels such as ‘‘self-represented’’ and ‘‘standby
counsel’’ is not dispositive for sixth amendment pur-
poses. Rather, when a criminal defendant participates
in his own defense, but counsel remains available to
assist at all times, the fact that the court has labeled
the defendant as self-represented does not necessarily
tion.5 See, e.g., Commonwealth v. Maynard, 2 Mass.
App. 894, 319 N.E.2d 453 (1974); Phillips v. State, 604
S.W.2d 904, 908 (Tex. Crim. App. 1979); see also United
States v. Schmidt, 105 F.3d 82, 90 (2d Cir. 1997) (envi-
sioning ‘‘a case where standby counsel held that title
in name only and, in fact, acted as the defendant’s
lawyer throughout the proceedings’’); cf. State v. Lay-
ton, 189 W. Va. 470, 477, 432 S.E.2d 740 (1993) (‘‘courts
have . . . recognized that there is a substantial differ-
ence between the colloquy which must be conducted
. . . when a defendant elects to proceed wholly pro se
as opposed to when he proceeds pro se with counsel’’).
Moreover, in situations where defense counsel
believes that a defendant intends to give false or perjuri-
ous testimony, it frequently has been held that requiring
a criminal defendant to present his account of events
in narrative form, without the assistance of counsel,
does not deprive him of the right to counsel. ‘‘Courts
considering the constitutional implications of a defen-
dant’s narrative testimony have overwhelmingly con-
cluded that requiring the defendant to testify in
narrative form strikes an appropriate balance between
preserving the defendant’s right to testify on his own
behalf and his right to counsel and counsel’s ethical
obligation to the court, and does not deprive the defen-
dant of effective assistance of counsel so long as the
defendant is otherwise vigorously defended.’’ Common-
wealth v. Mitchell, Docket No. CRIM. A. 9673CR0312,
2000 WL 33119695, *25 (Mass. Super. December 18,
2000), aff’d, 438 Mass. 535, 781 N.E.2d 1237, cert. denied,
539 U.S. 907, 123 S. Ct. 2253, 156 L. Ed. 2d 118 (2003);
id. (listing relevant cases). The record does not reveal
exactly why defense counsel in the present case sought
to distance themselves from the defendant’s proposed
testimony. Although defense counsel apparently was of
the belief that the defendant’s views were ‘‘sincere,’’
and thus that perjury per se was not a consideration,
counsel was nevertheless convinced that ‘‘[t]he things
that [the defendant] is so vehemently expressing do not
comport [with] the reality that the rest of us see.’’ It is
unclear, however, whether counsel’s primary concern
was that participating more directly in eliciting the
defendant’s account of the events in question could
have run afoul of rule 3.3 (a) (3) of the Rules of Profes-
sional Conduct,6 or simply that the defendant’s weird
and outrageous views were tangential to his defense
and would not have portrayed him favorably before the
jury. In either case, I conclude that it was appropriate
for the trial court to require the defendant to testify in
narrative form, and that, by so doing, the court did not
infringe his sixth amendment right to counsel.
II
THE DEFENDANT WAIVED HIS RIGHT TO COUNSEL
Even if the defendant did not have legal representa-
tion during his narrative, I would conclude, contrary to
the majority, that he waived his sixth amendment right
to counsel. Specifically, I conclude that the defendant,
by insisting on taking the stand but refusing to collabo-
rate or cooperate with his defense counsel, waived his
right to the assistance of counsel with respect to that
portion of the trial.
On more than one occasion, Lorenzen informed the
court that the defendant’s choices had placed defense
counsel in a predicament. Specifically, the defendant
insisted on testifying in his own defense, but he refused
to meet or speak with defense counsel so that they
could prepare him for questioning. Without such prepa-
ration and collaboration, it would be impossible for
them to directly examine him with any effectiveness.
That was especially so in the present case, where the
defendant’s beliefs and theories about the case were
so facially bizarre that his counsel could not reasonably
hope to conduct a meaningful examination thereon
without first having an opportunity to discuss them
with the defendant.
Faced with similar circumstances, other courts have
concluded that, to the extent that a criminal defendant
refuses to cooperate with counsel, he implicitly waives
his sixth amendment right to legal assistance. See, e.g.,
United States v. Scotton, Docket No. I2-60049-CR, 2013
WL 10154297, *2 (S.D. Fla. July 26, 2013) (‘‘[d]efendant’s
refusal to cooperate with counsel constitutes a volun-
tary and knowing waiver of counsel’’); People v.
Vaughn, 116 Ill. App. 3d 193, 197, 451 N.E.2d 898 (1983)
(court properly required uncooperative defendant to
proceed pro se with standby counsel); People v. Kam-
meraad, 307 Mich. App. 98, 126–27, 858 N.W.2d 490
(2014) (concluding that wholly uncooperative defen-
dant ‘‘received exactly what he desired’’ and refusing
‘‘to reward [him] with a new trial on the basis of an
alleged constitutional deficiency that was of [his] own
making’’); cf. Thomas v. Wainwright, 767 F.2d 738, 743
(11th Cir. 1985) (‘‘[a] criminal defendant’s unreasonable
refusal to communicate or cooperate with his attorney
is one of the ‘circumstances’ that must be considered
in determining whether an attorney’s assistance was
reasonably effective’’). For this reason, I agree with
the state that the defendant, who was permitted to do
exactly what he wanted—to exercise his fundamental
right to testify without accepting his counsel’s assis-
tance or advice—cannot now be heard to complain that
his right to counsel was infringed thereby.
Indeed, the majority does not dispute that most of
the criteria for a valid express waiver of counsel were
satisfied here. The trial court: (1) canvassed the defen-
dant as to his desire to represent himself; (2) repeatedly
informed the defendant that he had the right to an
attorney; (3) informed the defendant of the risks he
would be taking in waiving the right to counsel; and
(4) established that the defendant knowingly agreed to
represent himself. The majority merely contends that
this choice to proceed pro se was not freely made,
but was, instead, a ‘‘ ‘Hobson’s choice’ ’’ in which the
defendant improperly was forced to select between
exercising two fundamental rights. It is well established,
however, that the fact that a criminal defendant does
not initiate the request to represent himself, and even
the fact that he agrees to represent himself as the lesser
of two evils, does not in itself vitiate an otherwise valid
canvass. Numerous courts have held that when a defen-
dant refuses the assistance of the public defender
assigned to represent him, his sixth amendment rights
are not violated if the court, sua sponte, forces him
to choose between accepting the unwanted assigned
counsel or representing himself. See, e.g., German v.
State, 268 Ind. 67, 71, 373 N.E.2d 880 (1978); People v.
Longuemire, 77 Mich. App. 17, 22–23, 257 N.W.2d 273
(1977); Gallego v. State, 117 Nev. 348, 359, 23 P.3d 227
(2001), overruled in part on other grounds by Nunnery
v. State, 263 P.3d 235, 253 n.12 (2011), cert. denied,
U.S. , 132 S. Ct. 2774, 183 L. Ed. 2d 643 (2012);
State v. Linsky, 117 N.H. 866, 880, 379 A.2d 813 (1977).
Here, by the same token, while representing himself
may not have been the defendant’s first choice, his
absolute refusal to cooperate with the public defenders
assigned to represent him meant that self-representa-
tion was his only viable alternative. Although the major-
ity suggests that the trial court could have appointed
substitute counsel, the court was under no obligation
to do so because defense counsel had not withdrawn
from the case. See generally State v. Jordan, 305 Conn.
1, 35, 44 A.3d 794 (2012) (Palmer, J., concurring). Ulti-
mately, then, it is the majority’s holding that will force
a trial court to make a Hobson’s choice. For these rea-
sons, I would affirm the judgment of the Appellate
Court.
Accordingly, I respectfully dissent.
1
Attorneys Lorenzen and O’Connor were the defendant’s trial counsel of
record. We are not aware of any participation by Attorney Crockett in the
present case. It also is unclear whether his ‘‘little brother’s name’’ was
properly transcribed as ‘‘Maurice,’’ or, rather, whether the defendant
intended to refer to the previously mentioned ‘‘Mourice.’’
2
The central question raised by this appeal is under what circumstances
a defendant who testifies briefly in the narrative form, but otherwise is
assisted by counsel throughout his trial, can be said to be self-represented
for sixth amendment purposes. I find it striking that the majority, which
fails to cite so much as a single case addressing this question, dismisses
this highly probative case law as ‘‘inapplicable’’ without any discussion
or analysis.
3
The majority also contends that the defendant must have been self-
represented because he had full control over the presentation of his case.
I fail to understand how the fact that the defendant complied with the
requirements imposed by the trial court, and gave his brief, two paragraph
statement in narrative form, after being invited to do so by his attorney,
suggests in any way that he was in control of the presentation of his case.
The United States Supreme Court has indicated that control over one’s case,
for the purposes of assessing self-representation, encompasses factors such
as making significant tactical decisions, controlling the questioning of wit-
nesses, and speaking instead of counsel on matters of importance. McKaskle
v. Wiggins, 465 U.S. 168, 178, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984). Beyond
the mere fact that the defendant exercised his right to testify, a choice that
in no way implicates self-representation, none of that happened here.
4
I find it noteworthy that the majority, which suggests without any expla-
nation that I have ‘‘tak[en] a view of the record that differs from that of
the trial court’’; see footnote 5 of the majority opinion; declines to quote
Lorenzen’s actual colloquy with the court or, indeed, to provide any support
for its conclusion that ‘‘[d]efense counsel made it abundantly clear that they
had no intention of representing the defendant should he testify . . . .’’
5
One reason this is true is that labels such as ‘‘standby’’ and ‘‘advisory’’
counsel are used inconsistently, and may be applied to a broad spectrum
of arrangements in which defense counsel serves the defendant in a range
of capacities, up to and including acting as full cocounsel. See State v.
Powers, 211 W. Va. 116, 122, 563 S.E.2d 781 (2001) (‘‘t]he cases have loosely
used such terms as . . . advisory counsel, standby counsel, and hybrid
representation to describe a multitude of situations in which both the
accused and professional counsel are involved in the presentation of the
defense case’’ [internal quotation marks omitted]). In the present case, for
example, the ‘‘standby’’ role that the trial court established for Lorenzen,
which extended to filing objections to the state’s cross-examination, appears
to exceed that envisioned by our rules of practice. See Practice Book § 44-
5 (‘‘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.’’ [Emphasis added.]).
6
Rule 3.3 (a) (3) of the Rules of Professional Conduct provides in relevant
part that ‘‘[a] lawyer shall not knowingly . . . [o]ffer evidence that the
lawyer knows to be false. . . .’’