State v. Bush , 325 Conn. 272 ( 2017 )

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STATE OF CONNECTICUT v. RICHARD BUSH
(SC 19492)
Rogers, C. J., and Palmer, Eveleigh, McDonald and Robinson, Js. *
Argued October 12, 2016—officially released April 18, 2017
Adam E. Mattei, assistant state’s attorney, with
whom were C. Robert Satti, Jr., supervisory assistant
state’s attorney, and, on the brief, John C. Smriga,
state’s attorney, and for the appellant (state).
Pamela S. Nagy, assistant public defender, for the
appellee (defendant).
Opinion
ROBINSON, J. This certified appeal presents two sig-
nificant issues, namely: (1) whether a court, in
determining if sufficient evidence of an enterprise exists
to sustain a conviction of racketeering in violation of
the Corrupt Organizations and Racketeering Activity
Act (CORA), General Statutes § 53-393 et seq., may con-
sider the entire record, or is limited to the evidence
concerning only those predicate ‘‘incidents of racke-
teering activity’’ found by the jury in the special verdict
required by General Statutes § 53-396 (b);1 and (2) the
degree to which a trial court has discretion to deny a
motion for a continuance filed by a criminal defendant
that seeks time to prepare for trial after that defendant
had elected, pursuant to Faretta v. California, 422 U.S.
806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), to discharge
his attorney and proceed as a self-represented party.
The state appeals, upon our grant of its petition for
certification,2 from the judgment of the Appellate Court
reversing the judgment of the trial court, rendered after
a jury trial, convicting the defendant, Richard Bush, of
six counts of the sale of narcotics by a person who is
drug-dependent in violation of General Statutes § 21a-
277 (a), six counts of sale of narcotics within 1500
feet of a school by a person who is drug-dependent in
violation of General Statutes §§ 21a-277 and 21a-278a
(b), one count of conspiracy to sell narcotics in violation
of General Statutes §§ 53a-48 and 21a-278 (b), and one
count of racketeering in violation of General Statutes
§ 53-395 (c).3 State v. Bush, 156 Conn. App. 256, 258–59,
112 A.3d 834 (2015). On appeal, the state claims that
the Appellate Court improperly concluded that: (1) the
defendant was entitled to a judgment of acquittal with
respect to the racketeering conviction because the two
predicate acts of racketeering, identified by the jury
pursuant to § 53-396 (b), did not constitute sufficient
evidence of an enterprise; and (2) a new trial was
required for the remaining offenses because the denial
of a continuance effectively deprived the defendant of
his right of self-representation. With respect to the rack-
eteering conviction, we conclude that the Appellate
Court improperly circumscribed its sufficiency of the
evidence analysis by limiting it to the two predicate
acts, but nevertheless properly determined that there
was insufficient evidence to support the racketeering
conviction. With respect to the other convictions, we
conclude that the Appellate Court improperly deter-
mined that the denial of a continuance effectively
deprived the defendant of his right of self-representa-
tion. Accordingly, we affirm in part and reverse in part
the judgment of the Appellate Court.
The record and the opinion of the Appellate Court
set forth the following background facts and procedural
history. ‘‘The charges upon which the defendant was
brought to trial were all based upon his alleged involve-
ment in seven separate sales of cocaine to a police
informant, David Hannon, during an undercover police
investigation of illegal drug activity in the area of Pem-
broke and Ogden Streets in Bridgeport between late
June through early November, 2010.’’ Id., 259. As will
be discussed more fully in part I B of this opinion,
during that time period, the investigating task force of
officers from the Bridgeport Police Department and the
Connecticut State Police obtained extensive audiotape
and videotape surveillance footage of these sales, in
which the defendant, working from the porch of his
duplex home, which directly abutted the sidewalk on
Pembroke Street, sold cocaine to Hannon, or facilitated
sales to Hannon by six other drug dealers, namely,
David Moreland, Jason Ortiz, Willie Brazil, Raymond
Mathis, Carlos Lopez, and Kenneth Jamison.4
‘‘In an amended long form information dated January
3, 2012, the state charged the defendant, more particu-
larly, with: one count each of sale of narcotics by a
person who is not drug-dependent and sale of narcotics
within 1500 feet of a school by a person who is not
drug-dependent in connection with each such alleged
sale; and one count each of conspiracy to sell narcotics
and racketeering based upon his alleged involvement
in all seven such alleged sales, as specially pleaded both
in the conspiracy count, as overt acts in furtherance of
the alleged conspiracy, and in the racketeering count,
as incidents of racketeering activity claimed to prove
his involvement in a pattern of racketeering activity, as
required by . . . § 53-396 (a). The jury found the defen-
dant guilty of the lesser included offenses of sale of
narcotics by a person who is drug-dependent and sale
of narcotics within 1500 feet of a school by a person
who is drug-dependent based upon his proven involve-
ment in sales of cocaine to Hannon on six of the seven
dates specified in the information, particularly June 30,
July 14, July 16, August 6, August 24, and November 9,
2010. It found him not guilty, however, of all charges
based upon the alleged sale of drugs to Hannon on June
25, 2010, the first date specified in the information. The
jury also found the defendant guilty of both conspiracy
to sell narcotics and racketeering, specifying as to the
latter charge, in a special verdict returned pursuant to
§ 53-396 (b), that the sole basis for its finding that the
defendant had engaged in a pattern of racketeering
activity as a member of an enterprise was his involve-
ment in the sale of cocaine on two of the seven dates
specified in the information, June 30 and November 9,
2010, which it found to have constituted ‘incidents of
racketeering activity.’ The trial court later sentenced
the defendant on all charges of which he was convicted
to a total effective sentence of twenty years incarcera-
tion.’’ (Footnote omitted.) Id., 259–60.
The defendant appealed from the judgment of convic-
tion to the Appellate Court. Although the defendant
raised numerous claims on appeal, the Appellate Court
only reached the two that it deemed dispositive.5 See id.,
259 n.2. Specifically, the Appellate Court first concluded
that the defendant was entitled to a judgment of acquit-
tal on the racketeering charge on the ground that ‘‘there
was insufficient evidence to support his racketeering
conviction because the state failed to prove either the
existence of an enterprise formed for the common pur-
pose of selling narcotics or that he was associated with
such an enterprise.’’ Id., 265. The Appellate Court fur-
ther concluded that a new trial was required with
respect to the other charges because the trial court had
abused its discretion in denying the defendant’s request
for a continuance after he elected, during jury selection,
to represent himself. Id., 288–89. This certified appeal
followed. See footnote 2 of this opinion. Additional facts
and procedural history will be set forth as necessary.
I
We begin with the state’s claim that the Appellate
Court improperly concluded that there was insufficient
evidence to support the defendant’s racketeering con-
viction. The record sets forth the following additional
relevant facts and procedural history. Although the jury
convicted the defendant of a total of six cocaine sales
to Hannon that took place between the dates of June
30 and November 9, 2010, the Appellate Court noted
that the special verdict form, rendered pursuant to § 53-
396 (b), indicated that the ‘‘defendant’s racketeering
conviction was expressly predicated’’ on the two
cocaine sales that occurred on June 30 and November
9, 2010.6 State v. Bush, supra, 156 Conn. App. 263. The
Appellate Court confined its analysis of the defendant’s
racketeering conviction only to the events of those two
days. Id. It observed that, ‘‘[o]n June 30, 2010, Hannon
met with members of a task force of officers from the
Bridgeport Police Department and the Connecticut
State Police Department to arrange for a controlled buy
of cocaine from . . . Ortiz at the defendant’s home on
Pembroke Street in Bridgeport. To that end, Hannon
telephoned Ortiz before arriving at the defendant’s
home, and also telephoned the defendant’s home phone
number. Prior to Hannon’s arrival at the defendant’s
home, Ortiz, who was then under surveillance by other
members of the task force, went to the rear of the home,
then returned to the front porch with a small blue bag
in his hand, which he later put in his mouth.7 When
Hannon arrived at the defendant’s home, the defendant
emerged from his backyard, walked past Hannon’s vehi-
cle while looking inside it, then continued to the street
corner, where he gestured to Ortiz by raising his hand
in the air. Ortiz then approached Hannon’s vehicle and
opened the door, whereupon the defendant came up
behind Ortiz, reached inside the vehicle, and tapped
hands with Hannon. Hannon gave Ortiz money, in
exchange for which Ortiz gave Hannon the blue bag of
cocaine that had been in his mouth. Meanwhile, another
man approached the defendant. After completing the
transaction with Hannon, when the defendant gestured
. . . once again, [and] Ortiz handed something to the
other man in exchange for money. Ortiz and the defen-
dant then walked together toward the defendant’s
backyard.8
‘‘On November 9, 2010, Hannon met once again with
task force members to prepare to buy drugs from the
defendant. This time Hannon called the defendant,
using the same cell phone number he had called on
June 30, 2010, and told the defendant that he was on
his way to meet him. When Hannon arrived at the defen-
dant’s home, the defendant was standing on the street
corner with . . . Brazil. The defendant got into Han-
non’s vehicle, and he and Hannon drove off. During their
ride, the defendant made a phone call in an apparent
attempt to procure cocaine, which Hannon had
requested. After the call, Hannon and the defendant
drove back to the defendant’s home. On the way back,
Hannon told the defendant that he also wanted to buy
a gun, which the defendant said was ‘doable.’ When
they returned, Hannon dropped off the defendant to
speak to Brazil, then pulled around the corner onto
Pembroke Street, as the defendant had directed. Once
he did so . . . Moreland, approached Hannon’s vehi-
cle. When Hannon told Moreland that he had given
money to the defendant, Moreland gave Hannon a quan-
tity of cocaine. The defendant later called Hannon to
confirm that Moreland had given him the cocaine and
to discuss further his stated interest in purchasing a
gun.’’ (Footnotes in original.) Id., 264–65.
Applying this court’s explication of CORA in State v.
Rodriguez-Roman, 297 Conn. 66, 82, 3 A.3d 783 (2010),
the Appellate Court held that there was insufficient
evidence of an association in fact enterprise to sustain
the defendant’s racketeering conviction under § 53-395
(c). State v. Bush, supra, 156 Conn. App. 265. In conduct-
ing its sufficiency analysis, the Appellate Court confined
its factual and legal analysis to the June 30 and Novem-
ber 9, 2010 sales that the jury found to be the predicate
acts of racketeering in its special verdict rendered pur-
suant to § 53-396 (b), citing Cole v. Arkansas, 333 U.S.
196, 202, 68 S. Ct. 514, 92 L. Ed. 644 (1948), for the
proposition that, ‘‘[w]here . . . the verdict includes
answers to interrogatories specifying the particular fac-
tual or legal [basis] upon which the verdict [rests], the
court must evaluate the sufficiency of the evidence to
support that verdict under the theories so specified.’’
State v. Bush, supra, 261–63. The Appellate Court
observed that, ‘‘[i]n the present case, there is no ques-
tion that the defendant was personally involved in both
sales of cocaine that the jury specially found to have
been incidents of racketeering activity,’’ but stated that,
for purposes of liability under CORA, the ‘‘question . . .
is whether those two sales, as alleged and proved at
trial, were committed by the defendant and his confed-
erate as members of a single enterprise, whose mem-
bers had joined together with one another in a web of
interlocking relationships to pursue a common criminal
purpose, or as separate groups of individuals who had
joined together on the occasions in question to commit
separate, though similar, crimes.’’ Id., 266. The Appel-
late Court stated that, ‘‘[a]lthough the defendant’s evi-
dent purpose on both occasions was to sell cocaine and
thereby make an illegal profit—a purpose he impliedly
shared with Ortiz on June 30, 2010, and with Moreland
on November 9, 2010—there was no evidence either
that the defendant had a long-term relationship with
either of his confederates for the common purpose of
selling drugs or that his two confederates had any rela-
tionship at all with each other.’’ Id. Thus, the Appellate
Court determined that the state had not established
the ‘‘continuing unit’’ that is ‘‘required to prove . . .
membership in an association in fact enterprise under
§ 53-395 (c).’’9 (Internal quotation marks omitted.) Id.,
267. Accordingly, the Appellate Court reversed the rack-
eteering conviction and remanded the case to the trial
court ‘‘with direction to render a judgment of acquittal’’
on that charge. Id., 289.
In challenging the Appellate Court’s conclusion that
there was insufficient evidence of the existence of an
enterprise, the state claims that the Appellate Court
improperly limited its sufficiency analysis to the evi-
dence specifically supporting the two predicate acts of
racketeering as found by the jury on the special verdict
form mandated by § 53-396 (b), rather than considering
the totality of the evidence in the record encompassing
all of the defendant’s narcotics convictions. The state
relies on several federal court decisions under the Rack-
eteer Influenced and Corrupt Organizations Act (RICO),
18 U.S.C. § 1961 et seq., including United States v.
Cianci, 378 F.3d 71 (1st Cir. 2004), and contends that
the ‘‘evidence relating to the five other sales that were
not marked on the [special verdict] form as proven to
be acts of racketeering was still available to the jury
in determining whether the state met its burden of prov-
ing an enterprise existed and the defendant associated
with the enterprise.’’ The state argues that the Appellate
Court’s analysis to the contrary is inconsistent with the
standard by which we review sufficiency claims, as well
as the purpose of CORA, which the legislature enacted
in part to allow the jury to consider the entire crimi-
nal operation.
In response, the defendant argues that the Appellate
Court properly restricted its analysis to the June 30 and
November 9, 2010 sales, which were the two predicate
acts found by the jury pursuant to § 53-396 (b), because
‘‘the jurors rejected the five other alleged acts of racke-
teering . . . .’’ Citing State v. Wassil, 233 Conn. 174,
658 A.2d 548 (1995), State v. Anderson, 86 Conn. App.
854, 864 A.2d 35, cert. denied, 273 Conn. 924, 871 A.2d
1031 (2005), and Sanchez v. State, 89 So. 3d 912 (Fla.
App. 2012), the defendant contends that the special
verdict established key material facts, namely, that the
only incidents of racketeering activity that occurred
were the two sales considered by the Appellate Court.
Put differently, the defendant contends that the jury’s
failure to find in its special verdict that the other five
sales constituted ‘‘racketeering activity’’ operated as an
acquittal, particularly insofar as the jury also found the
defendant drug-dependent and acting by himself in four
of the proven sales. The defendant further argues that,
even if the entire record is considered, the present case
is distinguishable from numerous reported federal rack-
eteering decisions sustaining findings of an association
in fact enterprise because the present case lacks even
informal organizational hallmarks. The defendant con-
tends, specifically, that the present case lacks evidence
of the following: (1) of a single source for the drugs
sold; (2) of sharing of weapons or profits; (3) of specific
job functions; and (4) that the cocaine sold in this case
came from inside the defendant’s home. Finally, the
defendant contends that, even if an enterprise existed
among the other six dealers, there was insufficient evi-
dence that he had associated with that enterprise.
Although we agree with the state that the Appellate
Court improperly circumscribed its inquiry in determin-
ing whether there was sufficient evidence of an enter-
prise, we nevertheless agree with the defendant that
the Appellate Court properly determined that there was
insufficient evidence to sustain the defendant’s racke-
teering conviction.
‘‘The standard of review we apply to a claim of insuffi-
cient evidence is well established. In reviewing the suffi-
ciency of the evidence to support a criminal conviction
we apply a two-part test. First, we construe the evidence
in the light most favorable to sustaining the verdict.
Second, we determine whether upon the facts so con-
strued and the inferences reasonably drawn therefrom
the [finder of fact] reasonably could have concluded
that the cumulative force of the evidence established
guilt beyond a reasonable doubt. . . .
‘‘We note that the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, [but] each of the
basic and inferred facts underlying those conclusions
need not be proved beyond a reasonable doubt. . . .
If it is reasonable and logical for the jury to conclude
that a basic fact or an inferred fact is true, the jury is
permitted to consider the fact proven and may consider
it in combination with other proven facts in determining
whether the cumulative effect of all the evidence proves
the defendant guilty of all the elements of the crime
charged beyond a reasonable doubt. . . .
‘‘Moreover, it does not diminish the probative force
of the evidence that it consists, in whole or in part, of
evidence that is circumstantial rather than direct. . . .
It is not one fact, but the cumulative impact of a multi-
tude of facts which establishes guilt in a case involving
substantial circumstantial evidence. . . . In evaluating
evidence, the [finder] of fact is not required to accept
as dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [finder of fact]
may draw whatever inferences from the evidence or
facts established by the evidence it deems to be reason-
able and logical. . . .
‘‘Finally, [a]s we have often noted, proof beyond a
reasonable doubt does not mean proof beyond all possi-
ble doubt . . . nor does proof beyond a reasonable
doubt require acceptance of every hypothesis of inno-
cence posed by the defendant that, had it been found
credible by the [finder of fact], would have resulted in
an acquittal. . . . On appeal, we do not ask whether
there is a reasonable view of the evidence that would
support a reasonable hypothesis of innocence. We ask,
instead, whether there is a reasonable view of the evi-
dence that supports the [finder of fact’s] verdict of
guilty.’’ (Internal quotation marks omitted.) State v.
Crespo, 317 Conn. 1, 16–17, 115 A.3d 447 (2015).
The following background principles governing crim-
inal liability under CORA are relevant to the issues in
this certified appeal. The defendant was convicted of
racketeering in violation of § 53-395 (c), which provides
in relevant part as follows: ‘‘It is unlawful for any person
employed by, or associated with, any enterprise to
knowingly conduct or participate in, directly or indi-
rectly, such enterprise through a pattern of racke-
teering activity . . . .’’ (Emphasis added.) General
Statutes § 53-394 (e), in turn, defines ‘‘ ‘[p]attern of rack-
eteering activity’ ’’ as ‘‘engaging in at least two incidents
of racketeering activity that have the same or similar
purposes, results, participants, victims or methods of
commission or otherwise are interrelated by distin-
guishing characteristics, including a nexus to the same
enterprise, and are not isolated incidents, provided the
latter or last of such incidents occurred after October
1, 1982, and within five years after a prior incident
of racketeering activity.’’10 Section 53-394 (c) further
defines ‘‘ ‘[e]nterprise’ ’’ as ‘‘any individual, sole proprie-
torship, corporation, business trust, union chartered
under the laws of this state or other legal entity, or any
unchartered union, association or group of individuals
associated in fact although not a legal entity, and
includes illicit as well as licit enterprises and govern-
mental, as well as other entities. In determining whether
any unchartered union, association or group of individu-
als exists, factors which may be considered as evidence
of association include, but are not limited to: (1) A
common name or identifying sign, symbols or colors
and (2) rules of behavior for individual members.’’
Although the pattern of racketeering and enterprise
elements of racketeering are distinct under CORA, they
may well share common proof.11 See State v. Rodriguez-
Roman, supra, 297 Conn. 81–83.
A
We begin with the state’s claim that the Appellate
Court improperly concluded that, in determining
whether the state proved the existence of an enterprise
under CORA, it could consider only evidence concern-
ing the predicate acts that the jury found to have consti-
tuted a pattern of racketeering pursuant to § 53-396
(b), namely, the June 30 and November 9, 2010 sales.
Whether CORA, and, particularly, the special verdict
provision of § 53-396 (b), requires that the jury’s finding
as to the existence of an enterprise to be based solely
on the evidence concerning the predicate acts specified
in the special verdict presents a question of statutory
interpretation over which we exercise plenary review.
See State v. Moreno-Hernandez, 317 Conn. 292, 299,
118 A.3d 26 (2015). ‘‘When construing a statute, [o]ur
fundamental objective is to ascertain and give effect to
the apparent intent of the legislature. . . . In seeking
to determine that meaning, General Statutes § 1-2z
directs us first to consider the text of the statute itself
and its relationship to other statutes. If, after examining
such text and considering such relationship, the mean-
ing of such text is plain and unambiguous and does
not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be
considered. . . . The test to determine ambiguity is
whether the statute, when read in context, is susceptible
to more than one reasonable interpretation. . . . When
a statute is not plain and unambiguous, we also look
for interpretive guidance to the legislative history and
circumstances surrounding its enactment, to the legisla-
tive policy it was designed to implement, and to its
relationship to existing legislation and common law
principles governing the same general subject matter
. . . .’’ (Internal quotation marks omitted.) Id. ‘‘In inter-
preting the [statutory] language . . . however, we do
not write on a clean slate, but are bound by our previous
judicial interpretations of the language and the purpose
of the statute.’’ (Internal quotation marks omitted.) Id.
We begin with the text of § 53-396, which governs
the state’s pleading and proof in a prosecution for racke-
teering under CORA. In particular, we focus on § 53-
396 (b), which requires a special verdict, because that
is the subsection that led the Appellate Court to confine
its sufficiency analysis in the present case to the inci-
dents of racketeering activity that the jury found to
have occurred on June 30 and November 9, 2010. See
State v. Bush, supra, 156 Conn. App. 263. Section 53-
396 (b) provides: ‘‘In any prosecution under this chapter
the court or the jury, as the case may be, shall indicate
by special verdict the particular incidents of racke-
teering activity that it finds to have been proved by the
state beyond a reasonable doubt.’’
Nothing in the text of § 53-396 (b) requires a special
verdict as to the enterprise element of CORA, or in any
way suggests that the proof of that element is limited
to particular evidence, in contrast to its express require-
ment that the jury specify the ‘‘incidents of racketeering
activity’’ that satisfy the ‘‘pattern’’ element. This is par-
ticularly evident when subsection (b) is read in context
with subsection (a) of § 53-396, which governs the
pleading of a racketeering claim under CORA. Section
53-396 (a) is silent with respect to enterprise, and only
requires the state to allege specifically ‘‘the existence
of a pattern of racketeering activity based upon at least
two incidents of racketeering activity, which shall be
specified in such information . . . .’’ Tellingly, § 53-396
(a) expressly contemplates that the fact finder may
well be exposed to evidence of other criminal activities
during a prosecution for racketeering, as it specifically
authorizes the state, ‘‘where otherwise permitted by
law, [to] individually charge in separate counts of the
same information or by indictment any offense notwith-
standing that such offense may also constitute an inci-
dent of racketeering activity specified in the count
charging a violation of this chapter.’’ Read in context,
the fact that neither subsections (a) nor (b) of § 53-396
mandate special pleading and proof of the enterprise
element and specifically contemplate exposure to other
aspects of criminal activity during the trial suggests
that the legislature did not intend to otherwise limit the
proof of the enterprise element solely to that evidence
used to prove the predicate incidents of racketeering
activity. To hold otherwise would run afoul of the
maxim that ‘‘[w]e are not permitted to supply statutory
language that the legislature may have chosen to omit.’’
(Internal quotation marks omitted.) Dept. of Public
Safety v. State Board of Labor Relations, 296 Conn.
594, 605, 996 A.2d 729 (2010).
‘‘To the extent that any ambiguity remains, the legisla-
tive history of [CORA] supports this interpretation.’’
State v. Rodriguez-Roman, supra, 297 Conn. 78. The
legislature contemplated the jury’s broad consideration
of evidence with respect to the existence of an enter-
prise. As we noted in Rodriguez-Roman, in a memoran-
dum to the Joint Standing Committee on the judiciary,
Austin J. McGuigan, the then chief state’s attorney,
observed that, although ‘‘in the ordinary criminal prose-
cution the admissibility of evidence of other crimes
is often severely limited, in the [CORA] prosecution
evidence of criminal activity related to an ongoing
enterprise is not only admissible, it is essential. The
act thus provides the jury with an opportunity to see
the whole picture of the criminal operation and not
merely a part of it.’’ (Emphasis in original; internal quo-
tation marks omitted.) Id., quoting Conn. Joint Standing
Committee Hearings, Judiciary, Pt. 3, 1982 Sess., pp.
667–68; see also Hatt v. Burlington Coat Factory, 263
Conn. 279, 314, 819 A.2d 260 (2003) (‘‘[T]estimony
before legislative committees may be considered in
determining the particular problem or issue that the
legislature sought to address by the legislation. . . .
This is because legislation is a purposive act . . . and,
therefore, identifying the particular problem that the
legislature sought to resolve helps to identify the pur-
pose or purposes for which the legislature used the
language in question.’’ [Internal quotation marks
omitted.]).
Given the general similarity of the statutes, we pre-
viously have found federal case law applying RICO to
be instructive in our interpretation and application of
CORA. See State v. Rodriguez-Roman, supra, 297 Conn.
81–83. Under RICO, as under CORA, the pattern and
enterprise elements are doctrinally separate, although
‘‘the proof used to establish these separate elements
may in particular cases coalesce . . . .’’ United States
v. Turkette, 452 U.S. 576, 583, 101 S. Ct. 2524, 69 L.
Ed. 2d 246 (1981). Although the government may use
common evidence to prove the pattern and enterprise
elements of RICO, the federal courts have held that the
government is not limited to that evidence in establish-
ing the existence of an enterprise and the defendant’s
participation therein, and that a sufficiency of the evi-
dence review may consider all relevant evidence in the
record. We find particularly persuasive the decision of
the United States Court of Appeals for the First Circuit
in United States v. Connolly, 341 F.3d 16, 25–26 (1st
Cir. 2003), in which the court observed that fourteen
predicate acts over more than two decades had been
submitted to the jury; of those fourteen, the jury found
that nine instances had been proven beyond a reason-
able doubt. The court rejected the defendant’s reliance
on a decade long gap in the predicate acts in support
of his argument that the ‘‘government had failed to
prove ‘continuity’ in the enterprise, i.e., that the enter-
prise had functioned as an ongoing organization over
the period of time alleged, from September 1975 to
September 1998.’’ Id. The court stated that ‘‘the govern-
ment introduced significant evidence of the existence
of the enterprise apart from the specified racketeering
acts,’’ including testimony about incidents of bribery
that did ‘‘not appear in the alleged racketeering acts.’’
(Emphasis added.) Id., 26. Significantly, the First Circuit
emphasized that, ‘‘simply because the jury found a spec-
ified racketeering act as ‘unproven beyond a reasonable
doubt’ does not mean that the jury found the evidence
relating to that act unpersuasive, in combination with
other evidence in the case, on the existence of an [asso-
ciation in fact] enterprise. Rather, it may only mean
that the government did not prove a requisite element
of the underlying crime alleged as a racketeering act.’’
(Emphasis added.) Id. Thus, the ‘‘evidence relating to
those acts remained available to the jury in its evalua-
tion of the enterprise element of the RICO charge.’’12
Id., 27.
Indeed, in United States v. Cianci, supra, 378 F.3d
90–94, the First Circuit specifically rejected the defen-
dants’ argument that express acquittals of predicate
offenses on the special verdict form eliminated the asso-
ciated evidence from the jury’s consideration for other
RICO purposes. The court observed that ‘‘the specific
purpose of the special verdict form is to limit the facts
found at trial for the purpose of assessing on appeal
the sufficiency of the prevailing party’s case,’’ and that
the ‘‘special verdict form allows juries to specifically
identify the predicates for the general verdict.’’13 Id., 91.
In upholding a sufficiency challenge to the enterprise
element of a RICO conspiracy charge, the First Circuit
held that even the ‘‘evidence relating to those [predi-
cate] acts that were found ‘unproven’ by the jury [with
respective to substantive RICO charges] was still avail-
able to the jury in its evaluation of the overall RICO
charge.’’ Id., 93; see also id. (‘‘though the evidence might
not have shown completed commission of the racke-
teering acts, it could have led the jury to find the requi-
sites of a RICO conspiracy among the defendants to
commit the racketeering acts’’ [emphasis omitted]).
Having considered the relevant statutory language,
legislative history, and persuasive federal case law, we
conclude that the jury, and a reviewing court, may con-
sider the entire record in determining whether the state
has proven the existence of an enterprise, and are not
limited to evidence concerning the predicate acts that
the jury has found to constitute the pattern of racke-
teering.14 Accordingly, the Appellate Court improperly
limited its inquiry to evidence concerning the predicate
acts in considering whether there was sufficient evi-
dence that an enterprise, in which the defendant partici-
pated, existed for purposes of liability under CORA.
B
Having reviewed the full record in this case, we agree
with the defendant that there is insufficient evidence
of an enterprise under an association in fact theory,
and the defendant’s participation in that enterprise, to
sustain his conviction for racketeering under § 53-395
(c). In particular, we conclude that the jury could not
reasonably have found that the state had proven beyond
a reasonable doubt the existence of an association in
fact between the defendant and the six other drug deal-
ers who sold narcotics from the porch of his Bridge-
port home.15
Before turning to a review of the evidence in the
present case, we note the following background princi-
ples concerning proof of an association in fact enter-
prise, as defined by § 53-394 (c).16 Following the United
States Supreme Court’s interpretation of RICO in Boyle
v. United States, 556 U.S. 938, 129 S. Ct. 2237, 173 L.
Ed. 2d 1265 (2009), we held in Rodriguez-Roman that
‘‘evidence of an ascertainable structure that exists for
a purpose [b]eyond that inherent in the pattern of racke-
teering activity’’ is not required.17 (Internal quotation
marks omitted.) State v. Rodriguez-Roman, supra, 297
Conn. 82. Nonetheless, we noted that, consistent with
the terms of RICO, an association in fact enterprise
must have a structure, which requires proof of: ‘‘(1) a
purpose, (2) relationships among those associated with
the enterprise, and (3) longevity sufficient to permit
the associates to pursue the purpose of the enterprise
. . . .’’ (Citation omitted.) Id.; see Boyle v. United
States, supra, 945–46. ‘‘[T]he requirements for proving
an association in fact enterprise do not include a hierar-
chical structure, fixed roles for its members, a name,
regular meetings, dues, established rules and regula-
tions, disciplinary procedures and induction or initia-
tion ceremonies.’’ (Emphasis added.) State v.
Rodriguez-Roman, supra, 82–83. Rather, an association
in fact enterprise is ‘‘a group of persons associated
together for a common purpose of engaging in a course
of conduct that could be proven by evidence of an
ongoing organization, formal or informal, and by evi-
dence that the various associates function as a continu-
ing unit.’’ (Internal quotation marks omitted.) Id., 82;
see id., 83–84 (jury reasonably could have found that
‘‘the defendant and [the coconspirator] entered into
an association during the years 2002 and 2003 for the
purpose of issuing fraudulent licenses to illegal immi-
grants in exchange for a substantial fee,’’ evidenced by
well coordinated scheme with distinct roles for each
partner that required independent actions for enterprise
to succeed); accord United States v. Ramirez-Rivera,
800 F.3d 1, 19 (1st Cir. 2015) (‘‘[T]he law is clear that
the government . . . must prove that the enterprise
existed in some coherent and cohesive form. . . . It
follows that the enterprise must have been an ongoing
organization operating as a continuous unit.’’ [Internal
quotation marks omitted.]), cert. denied, U.S. ,
136 S. Ct. 908, 193 L. Ed. 2d 800 (2016); United States
v. Hosseini, 679 F.3d 544, 558 (7th Cir.) (individuals
acting ‘‘independently and without coordination’’ do not
constitute enterprise under RICO [emphasis omitted]),
cert. denied, U.S. , 133 S. Ct. 623, 184 L. Ed. 2d
396 (2012); United States v. Rogers, 89 F.3d 1326, 1337
(7th Cir.) (‘‘[t]he continuity of an informal enterprise
and the differentiation among roles can provide the
requisite structure to prove the element of enterprise’’
[internal quotation marks omitted]), cert. denied, 519
U.S. 999, 117 S. Ct. 495, 136 L. Ed. 2d 387 (1996).
Applying these principles to the record in the present
case, we conclude that the evidence of an association
in fact enterprise is insufficient to sustain the jury’s
verdict, even when the evidence is viewed in the light
most favorable to the state. We begin our review of the
evidence with the June 25, 2010 transaction.18 Specifi-
cally, Hannon went to the corner of Pembroke and
Ogden Streets intending to make a controlled narcotics
purchase from the defendant. Prior to Hannon’s arrival,
Detective Jason Amato had observed the defendant
standing in front of his house with Moreland and Mathis
and then observed the defendant leaving the area. After
Hannon arrived, Moreland informed him that the defen-
dant had gone to the police station to seek victims’
compensation for injuries he had sustained in a shoot-
ing. Hannon purchased cocaine from Moreland, who
had returned to the porch of the defendant’s home to
obtain it from Mathis. A review of the videotape evi-
dence demonstrates that the porch of the defendant’s
home, and its short set of access steps, directly abutted
the sidewalk on Pembroke Street.
With respect to the June 30, 2010 sale, which the jury
found to be one of the two predicate acts in the pattern
of racketeering, Hannon called Ortiz, an ‘‘associate’’
of the defendant on Ortiz’ mobile phone, looking to
purchase drugs. While Hannon was on his way to the
corner of Pembroke and Ogden, the defendant called
Hannon to ask why he had not yet arrived. When Han-
non arrived at that location, he called the defendant to
indicate his arrival. Once Hannon arrived at the defen-
dant’s home, the defendant gestured to Ortiz and the
two of them made the sale to Hannon as described by
the Appellate Court. See State v. Bush, supra, 156 Conn.
App. 263–64.
The state also relied on evidence from sales on August
6, 2010, and August 24, 2010. In particular, the August
24, 2010 sale was precipitated by a telephone call from
Hannon to the defendant’s home phone number, which
the defendant had given to Hannon after selling him
cocaine on August 6. To complete the August 24, 2010
sale to Hannon, the defendant obtained cocaine from
Lopez on his front porch.
Finally, we review the November 9, 2010 sale, which
the jury found to be the second predicate act of racke-
teering. First, Hannon set up the purchase by calling
the defendant on the mobile phone number that he
previously had used to contact Ortiz,19 to let him know
that he was on the way to meet him. The remainder of
the transaction took place as described by the Appellate
Court, including the fact that the defendant, upon learn-
ing of Hannon’s desire to purchase cocaine, called
Moreland to obtain the cocaine. The defendant took
Hannon’s money, and Moreland himself delivered the
cocaine to Hannon on Pembroke Street. The defendant
later contacted Hannon to confirm that the delivery
had occurred, and discussed further Hannon’s stated
interest in having the defendant help him purchase a
gun. See id., 264–65.
We conclude that this evidence was insufficient to
prove the association in fact necessary to establish an
enterprise for purposes of CORA. Even accepting that
the individuals involved shared a common purpose of
selling drugs on the eastern side of Bridgeport, there
is no evidence that they functioned as a continuing unit
or even an informal organization. See State v. Rodri-
guez-Roman, supra, 297 Conn. 82. Although the evi-
dence demonstrated that the individuals the defendant
permitted to deal drugs from his porch were by no
means strangers to him, it does not establish the requi-
site relationships necessary to sustain a finding of an
enterprise. Indeed, it is well short of the evidence that
two United States Courts of Appeal have characterized
as minimally sufficient to establish the existence of an
association in fact under RICO. For example, in United
States v. Nascimento, 491 F.3d 25, 33 (1st Cir. 2007),
cert. denied, 552 U.S. 1297, 128 S. Ct. 1738, 170 L. Ed.
2d 543 (2008), the First Circuit deemed the evidence
‘‘barely’’ enough to prove that a street gang constituted
a RICO enterprise. Although the defendants in Nasci-
mento relied on the testimony of ‘‘cooperating wit-
nesses who described [the gang] as a loose aggregation
of friends that lacked colors, initiation rites, and a for-
mal hierarchy,’’ the court emphasized that other testi-
mony supported the jury’s verdict that the group was
an enterprise, including ‘‘a shared cache of firearms
that were regarded as property of the gang,’’ and used
to shoot rivals. Id., 32–33. The court also cited testimony
demonstrating that members of the group ‘‘self-identi-
fied’’ as being part of the gang, ‘‘displayed an ability to
distinguish between members and friends,’’ trained
each other ‘‘in the use of night vision goggles, binocu-
lars, and police evasion tactics to enable them more
efficiently to carry out their shared purpose of killing
[rival group] members,’’ ‘‘kept tabs on one another and
informed one another when things would be ‘hot’
because of a recent shooting,’’ and ‘‘acted on behalf of
one another by attempting to assassinate witnesses to
each other’s crimes.’’ Id., 33. The court ultimately con-
cluded that, although the gang ‘‘lacked some of the
accouterments of more structured street gangs, a
rational jury could find that it had a sufficiently well-
defined shape to constitute an enterprise in the requisite
sense’’ because it ‘‘exhibited group cohesion over time;
its membership pooled and shared resources; the indi-
viduals involved had a sense of belonging and self-
identified as [gang] members; and the group had a well-
honed set of goals.’’ Id.
Similarly, in United States v. Burden, 600 F.3d 204,
214–16 (2d Cir.), cert. denied sub nom. Buchanan v.
United States, 562 U.S. 953, 131 S. Ct. 251, 178 L. Ed.
2d 251 (2010), the United States Court of Appeals for
the Second Circuit described the evidence of enterprise
as ‘‘ ‘somewhat contradictory’ ’’ and having ‘‘limita-
tions’’ given the lack of structure in the narcotics group,
but ultimately rejected a sufficiency challenge. The
court cited evidence that the organization had ‘‘multiple
members who joined in the shared purpose of selling
drugs and promoting such sales’’ from one common
location, ‘‘where they were able to traffic drugs out of
the public’s eye, stored guns, and planned the violent
acts they undertook.’’ Id., 215. The court cited testimony
that one member of the group was indeed the ‘‘ ‘master-
mind’ ’’ who acted as ‘‘the head of the [o]rganization,
controlling the flow of cocaine and cocaine base,
organizing acts of violence, recruiting members, and
directing members’ activities.’’ Id. The court also cited
testimony from dealers who discussed the organiza-
tion’s narcotics supply chain, and the use of
‘‘enforcer[s]’’ who used violence to retaliate against
rival gangs. Id. Finally, the court cited testimony that
the enterprise continued while the de facto leader was
incarcerated, with shifting roles and responsibilities
until his release. Id., 215–16; see also United States v.
Payne, 591 F.3d 46, 60–61 (2d Cir.) (sufficient evidence
of enterprise to distribute narcotics in neighborhood,
despite lack of hierarchical structure, when individuals
acted as ‘‘ ‘street family’ ’’ and cooperated with selling
drugs at specific locations, protected those spots by
use of violence, shared funds and narcotics with each
other, and aided each other during periods of incarcera-
tion), cert. denied, 562 U.S. 950, 131 S. Ct. 74, 178 L.
Ed. 2d 246 (2010); United States v. Crenshaw, 359 F.3d
977, 991 (8th Cir. 2004) (‘‘[t]he distinct-structure ele-
ment can be shown by patterns of retaliation and intimi-
dation undertaken to protect and defend the
enterprise’s business and associates . . . and by regu-
lar training, oversight, and coordination of associates’’
[citation omitted]); United States v. Connolly, supra,
341 F.3d 27 (The court noted that the defendant and
his associates ‘‘worked together in an [association in
fact] enterprise over a period of almost two decades,
joining forces to protect themselves from prosecution
and to further other criminal activities—some alleged
in the indictment, and others not specifically alleged.
There was cohesion in the group over time; the member-
ship shared resources and revenues; there was, in fact,
a sense of membership.’’).
The facts of this case pale in comparison to the fed-
eral courts’ decisions in Burden and Nascimento, which
we view as illustrative of the baseline level of ‘‘ongoing
organization’’ or ‘‘function as a continuing unit’’; (inter-
nal quotation marks omitted) State v. Rodriguez-
Roman, supra, 297 Conn. 82; necessary to establish an
association in fact for purposes of CORA.20 In contrast
to those cases, there is no evidence of cooperation
among the various alleged participants with respect to
protecting the alleged enterprise from competitors21 or
the police; indeed, there was no evidence of weapons
seized from the defendant’s house or any of the partici-
pants.22 There also is no evidence of common narcotics
sourcing at the wholesale or retail level or profit sharing
among the various alleged participants beyond the
drugs accepted by the defendant for his personal use
from individual dealers as a gratuity or tribute after
their sales from his porch.23 Although the evidence dem-
onstrated that the defendant served as a point of cus-
tomer contact though his home telephone or Ortiz’
mobile telephone for those seeking to purchase drugs
from the vicinity of his porch—either sold by himself
or obtained from other nearby dealers24—there is simply
no evidence that demonstrates the minimal level of
cohesive organization necessary to sustain a verdict
finding the existence of an enterprise that exists to
sell narcotics for purposes of criminal liability under
CORA.25 Indeed, the defendant acted alone in making
four of the six sales of narcotics of which he was con-
victed, and, in three of those sales, obtained the narcot-
ics from three different locations away from his home
that had no apparent relationship to each other or to the
other members of the alleged enterprise. With respect to
the two other sales that involved other persons, they
involved different persons with no apparent relation-
ship to each other.26 Put differently, all that the evidence
in the present case proves is an aggregation of appar-
ently friendly individuals involved in various narcotics
transactions, with no indication of ties to demonstrate
a sustained pattern of cooperation among them.27
We acknowledge the well established precepts that,
in considering the sufficiency of the evidence, ‘‘[w]e do
not sit as a thirteenth juror who may cast a vote against
the verdict based upon our feeling that some doubt of
guilt is shown by the cold printed record. . . . Rather,
we must defer to the jury’s assessment of the credibility
of the witnesses based on its firsthand observation of
their conduct, demeanor and attitude. . . . This court
cannot substitute its own judgment for that of the jury
if there is sufficient evidence to support the jury’s ver-
dict.’’ (Internal quotation marks omitted.) State v. Mor-
gan, 274 Conn. 790, 800, 877 A.2d 739 (2005). ‘‘[O]nce
a defendant has been found guilty of the crime charged,
a reviewing court conducts its review of all the evidence
in the light most favorable to the prosecution. In short,
[t]he evidence must be given a construction most favor-
able to sustaining the jury’s verdict.’’ (Internal quotation
marks omitted.) Id., 800–801. Nevertheless, upholding
the jury’s verdict in the present case would mean that
virtually any cooperation by a defendant with others
in connection with the sale of narcotics would have the
impermissible result of turning ‘‘garden variety criminal
activity undertakings’’ into racketeering punishable
under statutes such as CORA.28 Gross v. State, 765 So.
2d 39, 46 n.5 (Fla. 2000), cert. denied, 532 U.S. 948, 121
S. Ct. 1416, 149 L. Ed. 2d 357 (2001); see id. (emphasizing
that elements of state racketeering statute render target
of racketeering ‘‘prosecutions . . . appropriately, the
professional or career criminal and not non-racketeers
who have committed relatively minor crimes’’ and that
‘‘[s]tate should equally not be able to routinely invoke
the [racketeering] statute for prosecuting any ordinary
set of crimes’’). Accordingly, we conclude that the
Appellate Court properly determined that there was
insufficient evidence to support the defendant’s convic-
tion for racketeering under CORA.29
II
We next turn to the state’s claim that the Appellate
Court improperly concluded that the trial court violated
the defendant’s sixth amendment right to self-represen-
tation by allowing him to elect self-representation, but
refusing to grant his request for a continuance to pre-
pare for trial, effectively forcing him to accept represen-
tation by an attorney he did not want, namely, assigned
counsel, Vicki Hutchinson. State v. Bush, supra, 156
Conn. App. 271.
The Appellate Court’s opinion comprehensively sets
forth the following additional relevant facts and proce-
dural history: ‘‘On the first day of voir dire, March 12,
2012, the defendant told the court that he and Hutchin-
son ‘don’t connect at all,’ and that he was ‘very uncom-
fortable’ with her. In response, the court told the
defendant: ‘Sir, this case is over a year old . . . approx-
imately a year old, you were arrested about a year ago,
around July. You were brought to this courthouse in
July of [2011], you plead[ed] not guilty, and . . . Hutch-
inson has represented you since then. This is . . . and
we’re ready to start picking the jury, and this is the first
request, [a] request to have someone other than . . .
Hutchinson represent yourself. . . . Hutchinson is an
extremely well experienced defense attorney, we’re
going forward with the trial at this time.’
‘‘The next day, March 13, 2012, the defendant again
voiced his dissatisfaction with Hutchinson’s representa-
tion. The defendant also complained that he had not
had the opportunity to review with his attorney various
documents and videotapes she had procured through
discovery. In response, the court reiterated that the
defendant’s trial had already begun and that Hutchinson
was a very experienced attorney. The court explained
that the trial would proceed with jury selection that
morning, but that the defendant would be given the
afternoon to meet with Hutchinson. At that point, the
state suggested to the court that the court may have
an obligation, pursuant to State v. Flanagan, 293 Conn.
406, 978 A.2d 64 (2009), to canvass the defendant as to
his request to represent himself. The court responded,
‘We’re not at that point yet.’ Voir dire resumed.
‘‘Shortly thereafter, when the defendant interrupted
the voir dire proceedings, the court asked him if he
wanted to represent himself. When the defendant
responded in the affirmative, the court canvassed him
both to determine if he had the desire and the capacity
to represent himself, and to warn him of the dangers
and disadvantages of self-representation. After asking
the defendant several questions on these subjects, the
court proposed to the defendant that he agree to have
Hutchinson pick the jury, and then it would revisit the
issue of whether he should be allowed to represent
himself going forward. The defendant initially agreed
to that proposal. Voir dire thus continued until 1:15
p.m., with Hutchinson still representing the defendant.
Thereafter, as promised, the defendant was afforded
the rest of the day to meet with Hutchinson to review
the state’s disclosure.
‘‘The next day, March 14, 2012, the defendant notified
the court that technical difficulties prevented him from
being able to watch certain of the videotapes that he
had sought to watch on the previous afternoon. Follow-
ing an exchange with the defendant and a discussion
with counsel, the court decided not to proceed with
voir dire that day so as to give the defendant another
opportunity to view the videotapes that he had not been
able to view the day before.
‘‘After the defendant reviewed the videotapes, the
court revisited the defendant’s request to represent him-
self, and the defendant reiterated his desire to do so.
The court then thoroughly canvassed the defendant and
determined that he validly waived his right to counsel.
The court asked Hutchinson to remain present as
standby counsel for the defendant, and then adjourned
for the day.
‘‘On the next day, March 15, 2012, Hutchinson asked
the court what she should do with all of the disclosure,
approximately 900 pages of documents, that she had
received from the state. She asked, more particularly,
whether she should turn everything over to the defen-
dant, which would be problematic because there was
a protective order in effect that prevented the defendant
from bringing those documents back to prison with
him because other codefendants were also being held
there.’’ State v. Bush, supra, 156 Conn. App. 271–73. At
that point, the defendant asked the court for ‘‘time to
look over’’ those documents. (Internal quotation marks
omitted.) Id., 273. The trial court denied the defendant’s
request for additional time, explaining it would not pro-
vide a continuance because he had ‘‘made the decision
to represent [himself] in the middle of a trial.’’ Id., 275.
The trial court emphasized that, because trial had
begun, it would not have granted a continuance even
if the defendant ‘‘had hired another lawyer to come in
at this moment . . . .’’ (Internal quotation marks omit-
ted.) Id., 274. The trial court advised the defendant that
he would ‘‘have time during the trial and after the jury
is selected [to review those documents] but at this time
we’re going to complete the jury selection.’’ (Internal
quotation marks omitted.) Id., 275. Hutchinson then
suggested that the defendant could be given time to
come to court and prepare the next day, when court
was not scheduled to be in session, a suggestion with
which the defendant disagreed because he claimed to
‘‘need to find [his] witnesses.’’ (Internal quotation marks
omitted.) Id. Over the defendant’s protests, the trial
court then proceeded with jury selection.30 See id.,
275–77.
‘‘The jury panel was brought into the courtroom and,
as the court began to address the panel, the defendant
stated that he wanted to be taken downstairs. The court
admonished the defendant that he would waive his right
to represent himself if he refused to participate in the
proceedings. The defendant explained that he did not
study or practice law and that there were a lot of compli-
cated things that he needed to go through. The defen-
dant repeated that he wanted to go downstairs.’’ Id.,
277. At that point, the trial court informed the jury
panel that the proceedings would be moved to another
courtroom to allow the defendant to ‘‘sit in a glassed
in room and hear the proceedings’’ while Hutchinson
represented him for purposes of jury selection, as he
was waiving his constitutional right to represent him-
self. (Internal quotation marks omitted.) Id., 277–78.
After another discussion about the defendant’s desire
for a different attorney to replace Hutchinson and
whether he intended to participate personally, the trial
court moved the proceedings to the courtroom with an
observation booth.31 Id., 278–79.
After a brief recess, the proceedings resumed in the
courtroom that had the glass observation booth for
the defendant. Id., 279. At that point, the trial court
questioned the defendant about a report that he had
stated to the marshals that he did not want to sit in the
observation room, either. Id. The defendant reiterated
that he felt that he was being treated unfairly, and the
trial court emphasized that the defendant’s only choices
were to represent himself or be represented by Hutchin-
son.32 Id., 280–81. After the trial court emphasized its
desire to assure the defendant a fair trial, Hutchinson
interjected and advised the court that she had reviewed
the 900 page disclosure, much of which pertained to
the charges pending against the other dealers, and ‘‘sep-
arated the six distinct sale charges against this particu-
lar defendant, and they are at the beginning of the
books. So, it’s maybe fifty pages that pertain to just his
six sale charges. And I would suggest that he take those
pages out of the binder, and take them back with him
to review. And I would also advise the court that
whether [he represents himself] or there’s an attorney,
whoever is defending the case would be looking at
these papers all weekend long. And I know the state is
concerned about all the other defendants who are in
the rest of the book.’’ (Internal quotation marks omit-
ted.) Id., 282. At that point, the defendant stated that
he had changed his mind and wanted to be represented
by Hutchinson moving forward, and the trial court
granted that request after confirming the defendant’s
desire to elect representation by counsel.33 Id., 282–83.
The Appellate Court concluded that the trial court’s
denial of the defendant’s request for a continuance to
allow him to review the state’s ‘‘voluminous disclosure’’
was an abuse of discretion because it effectively denied
him his right of self-representation guaranteed by the
sixth amendment to the United States constitution
under Faretta v. California, supra, 422 U.S. 806. See
State v. Bush, supra, 156 Conn. App. 283–89. Specifi-
cally, the Appellate Court disagreed with the state’s
claim that ‘‘the defendant reasserted his right to coun-
sel, thus waiving his right to represent himself, follow-
ing the court’s denial of his request for a continuance’’
because it agreed with the defendant’s argument that
the trial ‘‘court rendered meaningless its prior permis-
sion for him to represent himself by denying his request
for time to review the state’s 900 page disclosure, effec-
tively denying him the opportunity to effectively repre-
sent himself.’’ Id., 286; see id., 287–88 (noting that
defendant could not bring documents back to prison,
and that it was ‘‘doubtful that there would have been
any meaningful period of time after jury selection and
prior to the commencement of the trial when the defen-
dant would have had the opportunity to review the
state’s disclosure at the courthouse’’). The Appellate
Court further concluded that this abuse of discretion
was structural error entitling the defendant to a new
trial because it ‘‘effectively undermined his right to self-
representation . . . .’’ Id., 288–89.
On appeal to this court, the state claims that the
Appellate Court improperly determined that the trial
court had abused its discretion by denying the defen-
dant’s request for a continuance, which was an error
that had the effect of denying him his right to self-
representation. Relying on, for example, State v. Flana-
gan, supra, 293 Conn. 406, Morris v. Slappy, 461 U.S.
1, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983), United States
v. Hurtado, 47 F.3d 577 (2d Cir.), cert. denied, 516 U.S.
903, 116 S. Ct. 266, 133 L. Ed. 2d 188 (1995), and State
v. Hamilton, 228 Conn. 234, 636 A.2d 760 (1994), the
state contends that the defendant’s right to elect self-
representation is ‘‘ ‘sharply curtailed’ ’’ once trial begins
with jury selection, and the trial court retains the discre-
tion to balance it against the orderly administration of
justice in determining whether a continuance is appro-
priate. The state argues that the Appellate Court’s con-
clusion that ‘‘Thursday night, Friday, Saturday, and
Sunday was an inadequate amount of time for the defen-
dant to meaningfully review the state’s disclosure,’’ was
inaccurate, particularly given Hutchinson’s representa-
tion to the trial court that ‘‘she had culled the most
important documents’’ from the original disclosure, ren-
dering adequate time on Friday for the defendant’s
review. The state further emphasizes that the defen-
dant’s request for a continuance came after some jurors
had already been selected based on their availability
given the communicated expectation that the court
would start taking evidence on the following Monday.
Thus, the state contends that, because the trial court
did not abuse its discretion in denying a continuance,
the defendant’s ultimate decision to proceed with coun-
sel, even if influenced by the denial of the continuance,
was a voluntary waiver of his right to self-represen-
tation.
In response, the defendant relies on several cases
from the United States Court of Appeals for the Ninth
Circuit, namely, United States v. Farias, 618 F.3d 1049
(9th Cir. 2010), United States v. Royal, 43 Fed. Appx.
42 (9th Cir. 2002) (unpublished opinion), and Armant
v. Marquez, 772 F.2d 552 (9th Cir. 1985), cert. denied
sub nom. Bunnell v. Armant, 475 U.S. 1099, 106 S. Ct.
1502, 89 L. Ed. 2d 902 (1986), in support of his con-
tention that the Appellate Court properly determined
that the trial court’s refusal to grant his request for
a continuance violated his right of self-representation
because it left him unable to prepare, thus, ‘‘effectively
depriv[ing] [him] of his right to self-representation.’’
The defendant argues that a continuance was necessary
because: (1) the record demonstrates that he had never
seen the records disclosed by the state and the protec-
tive order precluded him from bringing those records
back to prison to prepare over the weekend; (2) he
needed time to locate witnesses whom Hutchinson did
not want to present; and (3) he had not had the opportu-
nity to review the audiotape and videotape evidence
while incarcerated awaiting trial. Thus, the defendant
contends that the Appellate Court properly determined
that the trial court’s ‘‘insist[ence] that the trial go for-
ward even though [he] was unprepared and would not
have time to effectively prepare’’ constituted a forced
waiver of his right to self-representation, which was a
structural error requiring a new trial. We, however,
agree with the state, and conclude that the Appellate
Court improperly determined that the trial court abused
its discretion by denying the defendant’s request for a
continuance, thus, effectively depriving him of his right
to self-representation.
This ‘‘case involves the intersection of principles
involving the right to self-representation and the discre-
tionary authority of the trial court in managing trial
schedules.’’ Commonwealth v. Brooks, 628 Pa. 524, 526,
104 A.3d 466 (2014). As the United States Supreme Court
has explained, ‘‘[t]rial judges necessarily require a great
deal of latitude in scheduling trials. Not the least of
their problems is that of assembling the witnesses, law-
yers, and jurors at the same place at the same time,
and this burden counsels against continuances except
for compelling reasons. Consequently, broad discretion
must be granted trial courts on matters of continuances
. . . .’’ Morris v. Slappy, supra, 461 U.S. 11.
Thus, the ‘‘determination of whether to grant a
request for a continuance is within the discretion of
the trial court, and will not be disturbed on appeal
absent an abuse of discretion.’’ (Internal quotation
marks omitted.) State v. Hamilton, supra, 228 Conn.
239. ‘‘A reviewing court is bound by the principle that
[e]very reasonable presumption in favor of the proper
exercise of the trial court’s discretion will be made.
. . . To prove an abuse of discretion, an appellant must
show that the trial court’s denial of a request for a
continuance was arbitrary. . . . There are no mechani-
cal tests for deciding when a denial of a continuance
is so arbitrary as to violate due process. The answer
must be found in the circumstances present in every
case, particularly in the reasons presented to the trial
judge at the time the request is denied. . . .
‘‘In appellate review of matters of continuances, fed-
eral and state courts have identified multiple factors
that appropriately may enter into the trial court’s exer-
cise of its discretion. Although the applicable factors
cannot be exhaustively catalogued, they generally fall
into two categories. One set of factors focuses on the
facts of record before the trial court at the time when
it rendered its decision. From this perspective, courts
have considered matters such as: the timeliness of the
request for continuance; the likely length of the delay;
the age and complexity of the case; the granting of
other continuances in the past; the impact of delay on
the litigants, witnesses, opposing counsel and the court;
the perceived legitimacy of the reasons proffered in
support of the request; the defendant’s personal respon-
sibility for the timing of the request; the likelihood that
the denial would substantially impair the defendant’s
ability to defend himself; the availability of other, ade-
quately equipped and prepared counsel to try the case;
and the adequacy of the representation already being
afforded to the defendant. . . . Another set of factors
has included, as part of the inquiry into a possible abuse
of discretion, a consideration of the prejudice that the
defendant actually suffered by reason of the denial of
the motion for continuance.’’ (Citations omitted;
emphasis omitted; internal quotation marks omitted.)
Id., 240–41.
A trial court’s discretion with respect to trial schedul-
ing may well be tempered by the right to counsel under
the sixth amendment to the United States constitution,
which also affords ‘‘a defendant in a state criminal trial
. . . [a] right to proceed without counsel when he vol-
untarily and intelligently elects to do so.’’ (Emphasis
omitted.) Faretta v. California, supra, 422 U.S. 807.
‘‘This court consistently has recognized the inviolability
of the right of self-representation . . . and that the
right is also consistent with the ideal of due process
as an expression of fundamental fairness. To force a
lawyer on a defendant can only lead him to believe that
the law contrives against him. . . . The 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. When the right to have
competent counsel ceases as the result of a sufficient
waiver, the right of self-representation begins. . . . Put
another way, a defendant properly exercises his right
to self-representation by knowingly and intelligently
waiving his right to representation by counsel.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Flanagan, supra, 293 Conn. 418. Upon a ‘‘clear and
unequivocal’’ request, the trial court must canvass the
defendant in accordance with Practice Book § 44-3,
which ‘‘implement[s] the right of a defendant in a crimi-
nal case to act as his own attorney’’ and aids the court
in determining ‘‘the defendant’s decision to waive coun-
sel is knowingly and intelligently made.’’ (Internal quo-
tation marks omitted.) Id., 419–20.
Continuances and the right to self-representation
relate because, as a general proposition, a ‘‘criminal
defendant does not simply have the right to represent
himself, but rather has the right to represent himself
meaningfully. Meaningful representation requires time
to prepare.’’ United States v. Farias, supra, 618 F.3d
1053. Reasonable continuances may well be required
to allow that preparation to occur. See id., 1054–55.
Indeed, consistent with the Appellate Court’s ultimate
conclusion in this case; see State v. Bush, supra, 156
Conn. App. 288–89; an abuse of discretion in denying
such a continuance may ‘‘effectively’’ deprive the defen-
dant of his right of self-representation, thus, requiring
a new trial. See United States v. Farias, supra, 1054;
Barham v. Powell, 895 F.2d 19, 22 (1st Cir.), cert. denied,
495 U.S. 961, 110 S. Ct. 2572, 109 L. Ed. 2d 754 (1990);
Armant v. Marquez, supra, 772 F.2d 557–58; accord
State v. Hamilton, supra, 228 Conn. 249 (denial of con-
tinuance may deprive defendant of due process rights
or sixth amendment right to counsel of choice ‘‘if a
defendant is arbitrarily deprived of a fair opportunity
and reasonable time to employ counsel of the defen-
dant’s own choosing’’).
The right of self-representation is not, however, unfet-
tered. With respect to disruption of the proceedings,
the court may deny a defendant the right of self-repre-
sentation if the request is ‘‘untimely.’’34 (Internal quota-
tion marks omitted.) State v. Flanagan, supra, 293
Conn. 431. A ‘‘criminal defendant must make a timely
and unequivocal request to proceed pro se in order to
ensure the orderly administration of justice and prevent
the disruption of both the [pretrial] proceedings and a
criminal trial. . . . Assuming, however, that a defen-
dant’s request to proceed pro se is informed, voluntary
and unequivocal, [t]he right of a defendant in a criminal
case to act as his own lawyer is unqualified if invoked
prior to the start of the trial. . . . Distinct considera-
tions bear upon requests made after a trial has begun.
. . . After the commencement of a trial, the right of
self-representation is sharply curtailed . . . and a
trial court faced with such an application must bal-
ance the legitimate interests of the defendant in self-
representation against the potential disruption of the
proceedings already in progress.’’35 (Citations omitted;
emphasis altered; internal quotation marks omitted.)
Id. ‘‘Trial commences, for this purpose, at voir dire.’’
(Internal quotation marks omitted.) State v. Pires, 310
Conn. 222, 252, 77 A.3d 87 (2013). ‘‘Trial courts’ deci-
sions to deny requests for self-representation that are
made after the commencement of trial are reviewed for
abuse of discretion.’’ Id., 253.
After trial commences, consistent with the defen-
dant’s ‘‘ ‘sharply curtailed’ ’’ freedom to elect self-repre-
sentation; State v. Flanagan, supra, 293 Conn. 431; the
trial court’s obligation to afford a self-represented
defendant a continuance for purposes of meaningful
preparation is similarly diminished, given the trial
court’s prerogative to manage the trial in light of the
schedules of the court, witnesses, counsel and the jury.
See, e.g., Morris v. Slappy, supra, 461 U.S. 11–12; State
v. Hamilton, supra, 228 Conn. 239–41; see also Com-
monwealth v. Brooks, supra, 628 Pa. 538–39 (emphasiz-
ing that ‘‘right to self-representation . . . is not
absolute’’ and that ‘‘this appeal is not simply about the
right to self-representation; it also involves the timing
of such requests, and the trial court’s authority to man-
age its docket and trial schedule’’ because ‘‘defendants
should not be permitted to unreasonably clog the
machinery of justice, or hamper and delay the effort to
administer justice effectively’’ via assertion of right of
self-representation [internal quotation marks omitted]).
Thus, once trial commences, a trial court is not obli-
gated to delay the proceedings in order to enable or
facilitate a belated request for self-representation. See
People v. Jenkins, 22 Cal. 4th 900, 1039, 997 P.2d 1044, 95
Cal. Rptr. 2d 377 (2000) (‘‘in ruling on [the] defendant’s
midtrial motion to represent himself, the court correctly
noted that it had authority to deny the motion if self-
representation required a continuance, and, in advising
the defendant of the perils of self-representation, it
asked [the] defendant whether he understood, among
other things, that he would receive ‘no extra time for
preparation’ ’’), cert. denied, 531 U.S. 1155, 121 S. Ct.
1104, 148 L. Ed. 2d 975 (2001); Commonwealth v.
Brooks, supra, 538, 545 (trial court did not abuse discre-
tion in denying request for continuance made on first
day of jury selection because right to self-representation
‘‘is not absolute’’ and, insofar as ‘‘disruptive behavior
might affect a trial judge’s exercise of discretion’’ the
‘‘lateness of a continuance request itself can be disrup-
tive’’). Put differently, granting a late request for permis-
sion to proceed as a self-represented party, while
denying a continuance for preparation, does not neces-
sarily present the defendant with ‘‘a Hobson’s choice
between either proceeding with appointed counsel or
representing himself with no time to prepare such repre-
sentation,’’ as ‘‘this predicament was a product of [his]
own making.’’36 United States v. Wright, 682 F.3d 1088,
1090 (8th Cir. 2012).
In particular, a denial of a continuance to enable a
midtrial election of self-representation is not an abuse
of discretion if the trial court has thoughtfully consid-
ered the status of the case and otherwise made reason-
able efforts to accommodate the needs of the defendant,
such as the provision of standby counsel or breaks
during the scheduled trial itself. For example, in United
States v. Hurtado, supra, 47 F.3d 584, the Second Circuit
rejected a claim that ‘‘the district court failed to afford
[the defendant] enough time to prepare his case once
he chose to represent himself’’ by giving him ‘‘more
time to review certain documents that he claimed he
had not received previously.’’ The court emphasized
that the defendant was advised he would be expected
‘‘to adhere to the same standards as any attorney’’ and
materials had been in possession of defense counsel
for an adequate period of time, and that the defendant
had in fact received time during trial to review docu-
ments, notwithstanding the denial of the continuances.
Id.; see also Commonwealth v. Brooks, supra, 628 Pa.
538–44 (trial judge did not abuse discretion by denying
continuance request made on day scheduled for jury
selection to enable defendant to represent himself given
disruption of schedule and assurances from defense
counsel that he had conferred with defendant about
strategy, and was personally well prepared).37
Having reviewed the record in this case in light of
these principles, along with the guiding factors of State
v. Hamilton, supra, 228 Conn. 239–41, we conclude that
the trial court did not abuse its discretion in denying
the defendant’s request for an apparently indefinite con-
tinuance in order to review the state’s disclosure. It is
significant that the defendant, who had elected self-
represented status after trial started, did not request a
continuance until three jurors had been selected, and
the trial court had already informed those jurors and
other venirepersons of the trial schedule. Moreover, the
trial court reasonably relied on the representation of
Hutchinson, who was prepared for trial and whom the
court had appointed as standby counsel after the defen-
dant elected to proceed as a self-represented party, that
she had culled the most important documents from the
900 page disclosure for the defendant’s review, in order
to assist with the preparation over the several days
between jury selection and the anticipated start of evi-
dence.38 Further, in declining to grant the defendant’s
request for preparation time, the trial court aptly
observed, consistent with the balancing test of State v.
Flanagan, supra, 293 Conn. 431–33, which is applicable
to midtrial requests, that self-representation was not in
the defendant’s best interests given Hutchinson’s com-
petence and experience, along with the complexity of
the case. See State v. Pires, supra, 310 Conn. 253–55
(trial court did not abuse discretion in denying request
for self-representation made at sentencing because it
observed, inter alia, that appointed counsel did ‘‘fantas-
tic legal work,’’ and delay of sentencing to allow self-
representation would not ‘‘be beneficial either to you
and, or, to the family of the victims in this case and,
or, to the judicial process’’ [emphasis omitted; internal
quotation marks omitted]); State v. Silva, 166 Conn.
App. 255, 275–76, 141 A.3d 916 (2016) (trial court did
not abuse discretion in denying midtrial motion for self-
representation, even when defendant did not request
delay, because it ‘‘determined that the defendant’s rea-
sons for wanting to represent himself would ultimately
waste the court’s time and be prejudicial to the defen-
dant’’). Indeed, the potentially disruptive nature of the
defendant’s request for a continuance was further estab-
lished by his own behavior, insofar as he had refused
to participate in the proceedings after electing to pro-
ceed as a self-represented party—to the point that the
proceedings were moved to a different courtroom and
required the active participation of Hutchinson as
standby counsel.
In reviewing the trial court’s denial of the defendant’s
request for a continuance, we are mindful that ‘‘the
question is not whether any one of us, had we been
sitting as the trial judge, would have exercised our dis-
cretion differently. Our role as an appellate court is not
to substitute our judgment for that of a trial court that
has chosen one of many reasonable alternatives.’’ State
v. Hamilton, supra, 228 Conn. 250. When the delay
inherent in an apparently indefinite continuance is con-
sidered in juxtaposition with the sharply curtailed right
of self-representation following the commencement of
trial, we conclude that the Appellate Court improperly
determined that the record in the present case indicates
that the trial court had abused its discretion by denying
the defendant’s request for a continuance. The Appel-
late Court, therefore, improperly held that the defen-
dant was entitled to a new trial because the trial court’s
denial of a continuance effectively deprived him of his
right to self-representation.
The judgment of the Appellate Court is affirmed with
respect to the defendant’s conviction of racketeering.
The judgment of the Appellate Court is reversed with
respect to the defendant’s motion for continuance and
the case is remanded to that court with direction to
consider the defendant’s remaining claims on appeal.
In this opinion ROGERS, C. J., and PALMER and
McDONALD, Js., concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eve-
leigh, McDonald and Robinson. Thereafter, Justice Zarella retired from this
court and did not participate in the consideration of the case. Although
Justice Palmer was not present when the case was argued before the court,
he has read the briefs and appendices, and listened to a recording of the
oral argument prior to participating in this decision.
1
General Statutes § 53-396 (b) provides: ‘‘In any prosecution under this
chapter the court or the jury, as the case may be, shall indicate by special
verdict the particular incidents of racketeering activity that it finds to have
been proved by the state beyond a reasonable doubt.’’
2
We granted the state’s petition for certification to appeal limited to the
following issues: (1) ‘‘Did the Appellate Court properly conclude that the
state failed to adduce sufficient evidence to convict the defendant of a
violation of General Statutes § 53-395 (c)?’’; and (2) ‘‘Did the Appellate
Court properly conclude that the trial court violated the self-represented
defendant’s sixth amendment right to self-representation by denying his
request for a reasonable continuance to review his attorney’s case before
the start of evidence at trial?’’ State v. Bush, 317 Conn. 903, 903–904, 114
A.3d 1219 (2015).
3
General Statutes § 53-395 (c) provides: ‘‘It is unlawful for any person
employed by, or associated with, any enterprise to knowingly conduct or
participate in, directly or indirectly, such enterprise through a pattern of
racketeering activity or through the collection of an unlawful debt.’’
4
We note that the state did not specifically allege in the operative informa-
tion that Brazil, Jamison, and Lopez had participated in any of the narcotics
sales of which the defendant was convicted, including those alleged as
predicate acts for the racketeering charge. Jamison and Lopez were, how-
ever, specifically alleged to be coconspirators for purposes of the conspiracy
count. The evidence adduced at trial, discussed in detail in part I of this
opinion, demonstrates that Brazil and Lopez had some involvement in the
narcotics sales of which the defendant was convicted.
5
Beyond the issues discussed in this certified appeal, the defendant also
claimed before the Appellate Court that the trial court: (1) violated the
defendant’s right of self-representation by ignoring his first request, and
subsequently denying his second request without conducting a full canvass;
(2) improperly instructed the jury on the elements of racketeering; (3)
improperly instructed the jury with respect to conspiracy; and (4) imposed
an illegal sentence for conspiracy, given the acquittal of the underlying crime
of sale of narcotics by a person who is not drug-dependent.
Subsequent to our grant of certification to appeal, the defendant filed a
statement pursuant to Practice Book § 84-11 (a) raising these claims as
alternative grounds for affirming the judgment of the Appellate Court. We
subsequently denied the state’s motion to strike this statement of alternative
grounds. Because the defendant has not, however, included any analysis of
these issues in his brief in this certified appeal, we decline to consider them
further, leaving them to the Appellate Court to consider in the first instance
on remand.
6
As the Appellate Court noted, the ‘‘jury was provided with a verdict form
to complete and submit to the court upon rendering its verdict. The form
first asks whether the jury finds the defendant guilty or not guilty of the
racketeering charge. It then goes on to direct the jury, if it finds the defendant
guilty, to indicate which two or more incidents of racketeering activity
that you have found beyond a reasonable doubt were committed by the
defendant . . . . The form lists the dates of the seven alleged cocaine sales
in connection with which the defendant was charged, with a blank line next
to each date on which the jury was to place a check mark if it determined
that that alleged sale, if committed by the defendant, constituted an incident
of racketeering activity. The jury submitted the completed form to the court,
indicating that it found the defendant guilty of racketeering based upon the
following incidents of racketeering activity:
‘‘1. Sale of cocaine on June 25, 2010
‘‘2. Sale of cocaine on June 30, 2010 X
‘‘3. Sale of cocaine on July 14, 2010
‘‘4. Sale of cocaine on July 16, 2010
‘‘5. Sale of cocaine on August 6, 2010
‘‘6. Sale of cocaine on August 24, 2010
‘‘7. Sale of cocaine on November 9, 2010 X ’’ (Empha-
sis added; internal quotation marks omitted.) State v. Bush, supra, 156 Conn.
App. 263 n.4.
7
‘‘Detective Jason Amato testified that drug dealers routinely keep contra-
band in their mouths.’’ State v. Bush, supra, 156 Conn. App. 264 n.5.
8
‘‘There is no claim that the transaction with this other man was part of
the pattern of racketeering activity charged in this case.’’ State v. Bush,
supra, 156 Conn. App. 264 n.6.
9
The Appellate Court further rejected the use of a ‘‘hub and spokes’’
theory to prove the enterprise, observing that ‘‘there is no evidence that the
defendant’s consummation of either sale with one confederate present and
assisting him involved, much less required, the collaboration or cooperation
of any other confederate, or relied on or benefitted from the actions of the
other confederate in any way.’’ State v. Bush, supra, 156 Conn. App. 270;
see also footnote 15 of this opinion.
10
We note that General Statutes § 53-394 (a) also provides in relevant part
that ‘‘ ‘[r]acketeering activity’ means to commit, to attempt to commit, to
conspire to commit, or to intentionally aid, solicit, coerce or intimidate
another person to commit any crime which, at the time of its commission,
was a felony chargeable by indictment or information under the following
provisions of the general statutes then applicable . . . (16) sections 21a-
277, 21a-278 and 21a-279, relating to drugs . . . .’’
11
Although the state discussed the other elements of the racketeering
charge during its oral argument before this court, we note the briefs and
the defendant’s oral argument establish that only the sufficiency of the
evidence of the enterprise element is at issue in this certified appeal.
12
We note that other federal court decisions are consistent with United
States v. Connolly, supra, 341 F.3d 26–27, and permit the jury to consider
a broad array of evidence beyond the proven predicate acts in determining
whether the government has established the existence of an enterprise under
RICO. See United States v. Starrett, 55 F.3d 1525, 1546 (11th Cir. 1995)
(rejecting sufficiency challenge to enterprise element under RICO because
‘‘the jury was neither limited to a consideration of the [particular] predicate
acts’’ nor to ‘‘any or all of the predicate acts in general’’ in determining
whether defendant ‘‘participated in the operation or management’’ of gang,
specifically noting that ‘‘[t]he jury was entitled to consider in its entirety
all circumstantial evidence’’ of defendant’s participation [emphasis added]),
cert. denied sub nom. Sears v. United States, 517 U.S. 1111, 116 S. Ct. 1335,
134 L. Ed. 2d 485 (1996); United States v. DiNome, 954 F.2d 839, 843–44
(2d Cir.) (rejecting claim of ‘‘ ‘spillover’ prejudice’’ because, under RICO,
‘‘evidence of violent activities engaged in by other members and associates’’
was relevant to establish ‘‘the existence and nature of the RICO enterprise’’),
cert. denied sub nom. Testa v. United States, 506 U.S. 830, 113 S. Ct. 94,
121 L. Ed. 2d 56 (1992); United States v. Lemm, 680 F.2d 1193, 1200–1201
(8th Cir. 1982) (analyzing sufficiency claim by eliminating predicate acts,
to show that evidence independently demonstrated existence of enterprise
in holding that ‘‘the enterprise alleged by the government has not been
impermissibly equated with the predicate acts of racketeering’’), cert. denied,
459 U.S. 1110, 103 S. Ct. 739, 74 L. Ed. 2d 960 (1983).
13
As the defendant observes, a special verdict is an appropriate device for
discerning or limiting the factual basis for a jury’s verdict, and a sufficiency of
the evidence analysis may well be cabined by facts found in accordance
with that special verdict. See, e.g., United States v. Cianci, supra, 378 F.3d
91; State v. Anderson, supra, 86 Conn. App. 864; see also State v. Wassil,
supra, 233 Conn. 179–82 (reviewing manslaughter conviction in accordance
with theory of liability stated by jury in special verdict). This, however, begs
the question in this appeal, namely, the scope of the special verdict. In the
present case, the jury’s verdict as to CORA was a general one, with only
the acts constituting the pattern of racketeering being found specifically,
as is required by § 53-396 (b). Neither the jury instruction nor the special
verdict form restricted the jury’s inquiry or required specification of its
findings with respect to the enterprise element of racketeering under CORA.
See footnote 6 of this opinion. Thus, the special verdict itself does not limit
our inquiry in determining whether there is sufficient evidence to satisfy
the enterprise element. See State v. Anderson, supra, 862–63.
14
We note that the defendant relies on the Florida District Court of
Appeal’s decision in Sanchez v. State, supra, 89 So. 3d 912, for the proposition
that the Appellate Court properly limited its inquiry to the predicate offenses
specified in the special verdict in determining that the evidence was insuffi-
cient to sustain the racketeering conviction under CORA. Sanchez is distin-
guishable because the sufficiency analysis in that case did not concern
the enterprise element. See id., 916. Instead, in reversing a substantive
racketeering conviction, the court concluded that there was insufficient
evidence to support one of the only two predicate acts specified by the jury
in its special verdict. Id., 917; see also id., 915–16 (concluding that there
was insufficient evidence that defendant had knowingly aided in escape
of prisoner).
15
Given our conclusion that the entirety of the record may be considered
in determining whether the state proved the existence of an enterprise, we
need not consider the state’s arguments with respect to whether the Appel-
late Court, relying heavily on a decision analyzing RICO, New York v. Chavez,
944 F. Supp. 2d 260, 272 (S.D.N.Y. 2013), properly determined that a ‘‘hub
and spokes’’ relationship is not sufficient to create an enterprise under
CORA. See State v. Bush, supra, 156 Conn. App. 267–70; see also footnote
9 of this opinion. We note that there is some division in the federal courts
on this point with respect to their interpretation of RICO in the wake of
Boyle v. United States, 556 U.S. 938, 948–51, 129 S. Ct. 2237, 173 L. Ed. 2d
1265 (2009), although the Appellate Court’s conclusion in the present case
is consistent with the majority view. See Gucci America, Inc. v. Alibaba
Group Holding Ltd., Docket No. 15-CV-3784 (PKC), 2016 WL 6110565, *5–6
(S.D.N.Y. August 4, 2016).
16
Although an individual theoretically may be an enterprise under CORA;
see General Statutes § 53-394 (c); we note that the state does not claim that
the defendant in this case was himself the enterprise. Indeed, consistent
with RICO case law interpreting § 1961 (4) of title 18 of the United States
Code, in particular Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158,
161–63, 121 S. Ct. 2087, 150 L. Ed. 2d 198 (2001), it would appear that the
defendant and the individual constituting the enterprise must be different
entities for liability to attach under CORA. See, e.g., Ray v. Spirit Airlines,
Inc., 836 F.3d 1340, 1355 (11th Cir. 2016); Cruz v. FXDirectDealer, LLC, 720
F.3d 115, 120 (2d Cir. 2013).
17
Under RICO, ‘‘[a]s the Supreme Court indicated in [United States v.
Turkette, supra, 452 U.S. 583], the government is required to prove both
the existence of an enterprise and a pattern of racketeering activity. The
enterprise is an entity, for present purposes a group of persons associated
together for a common purpose of engaging in a course of conduct. The
pattern of racketeering activity is, on the other hand, a series of criminal
acts as defined by the statute. The former is proved by evidence of an
ongoing organization, formal or informal, and by evidence that the various
associates function as a continuing unit. The latter is proved by evidence
of the requisite number of acts of racketeering committed by the participants
in the enterprise. While the proof used to establish these separate elements
may in particular cases coalesce, proof of one does not necessarily establish
the other. The enterprise is not the pattern of racketeering activity; it is an
entity separate and apart from the pattern of activity in which it engages.
The existence of an enterprise at all times remains a separate element which
must be proved by the [g]overnment.’’ (Internal quotation marks omitted.)
United States v. Connolly, supra, 341 F.3d 25.
18
Although the jury acquitted the defendant of the narcotics sale charges
arising from June 25, 2010 as noted in part I A of this opinion, the evidence
relating to the June 25, 2010 transaction is relevant to prove the existence
of an enterprise for purposes of CORA.
19
The defendant testified that he was given the mobile phone by a female
associate of Ortiz after Ortiz had been arrested.
20
Other recent federal decisions under RICO are illustrative of more
sophisticated narcotics dealing enterprises than those considered in Burden
and Nascimento, involving groups with formal colors or insignias, a hierar-
chical structure of rank within the group, and designated territories enforced
with violence. See, e.g., United States v. Ramirez-Rivera, supra, 800 F.3d
19 (gang had name, rules and structure, gang sign via unique hand gesture,
and was combination following truce between two other housing project
gangs for purposes of selling drugs and eliminating competition); United
States v. Pierce, 785 F.3d 832, 838–39 (2d Cir.) (gang members had ‘‘tattoos
and signs that signified their membership,’’ and committed numerous crimes,
including three murders, in furtherance of enterprise of selling narcotics in
vicinity of housing project), cert. denied, U.S. , 136 S. Ct. 172, 193
L. Ed. 2d 139 (2015); United States v. Applins, 637 F.3d 59, 77–78 (2d Cir.
2011) (gang was enterprise for purpose of selling narcotics when evidence
showed that members ‘‘congregated daily in their territory, marked their
territory with graffiti, received tattoos signifying their membership in the
gang,’’ flashed the gang’s ‘‘hand sign in public places to ‘represent’ that they
were members,’’ used violence to protect specific territory for drug sales,
and shared profits for purposes of purchasing supply, along with evidence
that gang’s structure included ‘‘ ‘senior’ ’’ members who provided mentoring
and financial assistance).
21
The state also relies on the fact that the defendant, Ortiz and Moreland
‘‘sold cocaine from a single location’’ to contend that, ‘‘because drug dealers
do not willingly compromise their profits and security by sharing a single
location with other, unaffiliated dealers, the jury reasonably could have
inferred the defendant, Ortiz and Moreland were associates.’’ The state relies
by analogy on United States v. Cruz-Valdez, 773 F.2d 1541, 1547 (11th
Cir. 1985) (en banc), which stated that common sense supported a jury’s
conclusion that, ‘‘in the course of transporting or distributing millions of
dollars worth of readily marketable marijuana, through channels that wholly
lack the ordinary protections of organized society, a prudent smuggler is
not likely to suffer the presence of unaffiliated bystanders.’’ Even assuming
that expert testimony—not present in this record—is not required on this
point, the state’s argument falls short given Detective Amato’s testimony
about the heavy amounts of narcotics trafficking in the immediate area,
with no evidence that the members of the alleged enterprise made any plans
or took action to secure its turf in the market.
22
The dissenting justice relies on the defendant’s July 14 admonition to
Hannon, who at the time ironically was accompanied by undercover police
detective Dennis Sang, not to bring the police near his house, as evidence
of protective measures. This admonition—common sense for those engaged
in the sale of narcotics—does not rise to the level of protective measures
that the courts in Burden and Nascimento deemed indicative of an ongoing
enterprise, including caches of weapons.
23
We disagree with the state’s reliance on the lingo used to describe the
quantities of cocaine purchased, as well as the packaging of that cocaine
and the fact that the dealers concealed those packages in their mouths, as
evidence of the enterprise. Given the lack of evidence that this lingo and
packaging were unique to the sales conducted from the defendant’s porch,
and Detective Amato’s testimony that they were in fact common to the
narcotics trade in the east side of Bridgeport as a whole, we agree with
the defendant that this evidence was not probative of the existence of
an enterprise.
24
The dissenting justice suggests that the defendant exercised ‘‘direction
and control’’ over the other drug dealers, as evinced by his use of hand
signals to communicate with Ortiz during the June 30 sale. The dissent also
stated that the defendant ‘‘set the ground rules for participating on the porch
by stating that no one informs on anyone else and instructed the members
not to bring the police.’’ We respectfully disagree. Although the hand signals
suggest some cooperative effort between the men, such as making sure the
coast was clear, they do not by themselves suggest that the defendant had
a leadership role in an organized enterprise. Further, the dissent cites no
evidence that the defendant admonished the other dealers, but rather, only
the buyer, Hannon.
25
With respect to the third element, namely, ‘‘longevity sufficient to permit
the associates to pursue the purpose of the enterprise’’; (internal quotation
marks omitted) State v. Rodriguez-Roman, supra, 297 Conn. 82; we note
that the defendant does not claim that the period of time at issue in this
case, which spans multiple months, is insufficient as a matter of law. See
United States v. Pierce, 785 F.3d 832, 838 (2d Cir.) (‘‘[T]here is no hard-
and-fast time period for satisfaction of the longevity prong. Continuity is
both a closed-[ended] and open-ended concept, referring either to a closed
period of repeated conduct, or to past conduct that by its nature projects
into the future with a threat of repetition.’’ [Internal quotation marks omit-
ted.]), cert. denied, U.S. , 136 S. Ct. 172, 193 L. Ed. 2d 139 (2015);
see also Caro-Bonet v. Lotus Management, LLC, United States District
Court, Docket No. CV 15-2106 (FAB) (D.P.R. July 5, 2016) (seven months
sufficient longevity to establish enterprise under RICO). Rather, we under-
stand the defendant to claim that there is insufficient evidence that the
various individuals involved in the present case had relationships with each
other in furtherance of a common purpose over the time period involved.
26
We surmise that this fact led to the Appellate Court’s analysis of the
enterprise issue under a hub and spoke theory. See footnote 15 of this
opinion.
27
We note, however, that Jackson v. State, 858 So. 2d 1211 (Fla. App.
2003) (per curiam), on which the defendant relies, is distinguishable. In
Jackson, Florida’s intermediate appellate court concluded that there was
insufficient evidence to prove the state’s allegation that ‘‘the defendant was
employed by or associated with a criminal street gang.’’ Id., 1212. The court
observed in Jackson that ‘‘[t]here was no evidence that he was a member
of either gang; that he engaged in transactions with or on behalf of gang
members; or that he shared any of his drug proceeds with the gangs. Rather,
the evidence showed only that [the] defendant sold cocaine in the park and
that he was familiar with some other persons who were gang members.’’
Id. We view Jackson as distinguishable because that case did not turn on
whether one of the two street gangs involved was an enterprise, indeed one
was the Latin Kings, but rather, whether the defendant in that case had
engaged in activities sufficiently associated with the gangs to render him
part of their enterprises. In the present case, the other persons with whom
the defendant was associating bore none of the usual hallmarks of a criminal
street gang.
28
The dissenting justice ‘‘conclude[s] that conducting such an operation
with a group of six other drug dealers on the porch of a private home or
adjoining public streets, and dispensing drugs to people stopping in front
of the porch as if it were a drive-through window at a twenty-four hour
pharmacy, is the very type of activity that CORA was intended to punish.’’
We respectfully disagree. CORA need not stretch this far to ensure that
the defendant receives significant punishment for his contributions to the
narcotics trade in Bridgeport, given sentencing options available for his
multiple narcotics and conspiracy convictions under §§ 21a-277 (a), 21a-
278a (b), and 53a-48.
29
Although we do not consider the defendant’s challenge to the jury
instructions on CORA in this certified appeal; see footnotes 2 and 5 of
this opinion; we note that greater elaboration on the meaning of the term
‘‘enterprise,’’ and in particular the significance of its structure element, might
well have aided the jury in divining the difference between racketeering
and ordinary criminal activity. Accordingly, we commend this topic to the
Judicial Branch Criminal Jury Instruction Committee for their able consid-
eration.
30
The following colloquy ensued:
‘‘The Defendant: Your Honor, I really feel like you’re putting too much
pressure on me right now, man, you know what I’m sayin’? Because I
explained to you from day one that, you understand, I don’t have full knowl-
edge, full understanding of all this. Now you puttin’ everything at me at
once, Your Honor, you understand what I’m sayin’, and you’re trying to
make me go, you understand what I’m sayin’, on things I don’t have no
nature about . . . that I have to talk to people to get a better understandin’
. . . you understand. I don’t have a problem with you know, addressin’—
‘‘The Court: Sir, I’m not making, you are electing to represent yourself,
so you know—
‘‘The Defendant: And I’m asking—
‘‘The Court: —this is your choice.
‘‘The Defendant: You’re denying me all my rights though, Your Honor. I
mean, I think I have a right, you understand what I’m saying, to defend
myself properly, man. I mean, I can’t just do something here that’s, you
know, unpredictable.
‘‘The Court: Sir, you’ve decided—
‘‘The Defendant: So what you basically telling me, Your Honor, is you
don’t care. And I’m . . . I mean, I’m very uncomfortable with that.
‘‘The Court: Well, I care very much sir, but you—
‘‘The Defendant: That’s what I’m saying, then show me that you care,
Your Honor.
‘‘The Court: Sir, you’ve elected to represent yourself.
‘‘The Defendant: Because—
‘‘The Court: This is your choice.
‘‘The Defendant: Because—
‘‘The Court: We’re not arguing the point.
‘‘The Defendant: I’m not arguing, Your Honor.
‘‘The Court: We’re—
‘‘The Defendant: I’m talking to you.
‘‘The Court: We’re going forward with the jury selection. This is what you
have elected to do. I suggested before that you let counsel select the jury,
but you did not want to do that.
‘‘The Defendant: Yeah, but you’re rushing me to do something, Your Honor,
you’re rushing me to do—I’m asking you for time to go over things. You’re
denying me time, you understand what I’m saying? I mean how am I gonna
defend myself properly?
‘‘The Court: Well, sir—
‘‘The Defendant: You understand what I’m saying, if I don’t understand
something?
‘‘The Court: Sir, we’re going forward with the jury selection.’’ (Internal
quotation marks omitted.) State v. Bush, supra, 156 Conn. App. 275–77.
31
The following colloquy took place before the trial court changed
courtrooms:
‘‘The Court: Now, courtroom 3A is available at this moment . . . so we
will proceed today in that courtroom. And Mr. Bush, if you elect to sit
outside the courtroom, then you have elected to give up your right to—
‘‘The Defendant: I’m not giving up no right.
‘‘The Court: —represent yourself. Sir, you can’t—
‘‘The Defendant: I’m not giving up my rights.
‘‘The Court: —have it both ways. You can’t make a mockery of the situa-
tion, so—
‘‘The Defendant: I’m not trying to make a mockery of it.
‘‘The Court: Mr. Bush, do you want to be in the courtroom, yes or no?
‘‘The Defendant: I want proper—
‘‘The Court: Do you want to be in a courtroom?
‘‘The Defendant: You’re asking me what I want, Your Honor, I’m trying
to explain to you what I want.
‘‘The Court: Okay, 3A and please bring Mr. Bush down to the glassed in
anteroom in 3A—
‘‘The Defendant: If I’m innocent until proven guilty, Your Honor,
please, man—
‘‘The Court: And then we’ll proceed down in that courtroom.
‘‘The Defendant: I’m asking for proper counsel.
‘‘The Marshal: Yes, Your Honor.
‘‘The Court: Okay, we’ll stand in recess.’’ (Internal quotation marks omit-
ted.) State v. Bush, supra, 156 Conn. App. 278–79.
32
The record reveals the following colloquy on this point:
‘‘The Defendant: . . . Why would I be sittin’ around watchin’ something
go down that, you know what I’m sayin’, yo? I feel like I’m not being treated
fairly, man.
‘‘The Court: You have the right to represent yourself, if that’s what you
want to do. We’ve gone through that.
‘‘The Defendant: This . . . like I explained to you before—
‘‘The Court: Now, sir—
‘‘The Defendant: —I don’t want to represent myself. I want the proper
representation, man.
‘‘The Court: No, no, you told me you wanted to represent yourself. If you—
‘‘The Defendant: That’s not what I told you.
‘‘The Court: If you don’t want to represent yourself then Attorney
Hutchinson—
‘‘The Defendant: No—
‘‘The Court: —will stand forward—
‘‘The Defendant: —she’s not helping me, Your Honor. Please understand,
she’s not helping me.
‘‘The Court: Sir, you—
‘‘The Defendant: She haven’t been helping me from day one.
‘‘The Court: Sir, you’re not getting a different attorney. So, either your
election is to go forward with Attorney Hutchinson, we’ve gone through
this, or to represent yourself. Which do you want to do? There’s not a third
choice at this time. What do you want to do, sir?
‘‘The Defendant: Do what you gotta do, lock me up, Your Honor, if that’s
what you wanna do. Put me in jail, I mean you know what I’m sayin’, yo?
But, I feel like I deserve the proper—
‘‘The Court: Sir—
‘‘The Defendant: You understand what I’m sayin’, yo? To be treated, you
know, fairly. I’m innocent until proven guilty, Your Honor. You understand?
Nine tenths of the law. There is nothing in here, nothing in here stating
this case, Your Honor. You understand what I’m sayin’? I’m not a gang
member. . . .
‘‘The Court: . . . Now the choice is representing yourself or having Attor-
ney Hutchinson represent you.
‘‘The Defendant: Like I explained to you, and I’m going to explain to you—
‘‘The Court: There’s . . . I’ve explained to you there’s not a third—
‘‘The Defendant: I like Mrs. Hutchinson.
‘‘The Court: There’s not a third—
‘‘The Defendant: I don’t have a problem with her, but listen, me and her
don’t click. . . . That’s oil and water right there, Your Honor.
‘‘The Court: There’s not a third choice.
‘‘The Defendant: How am I have to jeopardize my life . . . well then you
know, I might as well be just . . . you might as well just convict me right
now. You might as well as just find me guilty because, I mean, you’re putting
me under all this pressure here of trying to defend myself. And, Your Honor,
I’m pretty sure you’d know for a fact that I didn’t go to law school. So, I’m
gonna have to use all the wisdom that I got to try to do the best that I could
to represent myself because I’m not going with Mrs. Hutchinson if I can’t
see eye to eye with her, and I feel like she’s not going to represent me
properly. You understand? I’ve been through that before where I had . . .
I went to trial and I was young and ignorant to the fact of a crime I didn’t
commit. I don’t want that to happen again.
‘‘The Court: Sir, what are we doing now? Are we going to—you know,
are you going to represent yourself and select a jury, or are you going to
elect to be outside of the courtroom? . . .
‘‘The Defendant: I don’t know what to do, Your Honor. I—all I want to
do is cooperate, man, but I don’t want to be railroaded, man. I don’t want
to be railroaded, man.
‘‘The Court: I want to see that you have a fair trial, and now is the time
for trial.’’ (Internal quotation marks omitted.) State v. Bush, supra, 156 Conn.
App. 279–82.
33
The record reveals the following colloquy on this point:
‘‘The Court: Okay, I’m listening to you, but right now we have the jury
selection issue. But by these papers you meant the fifty . . . how many
pages were in the front?
‘‘[Attorney] Hutchinson: Your Honor, the six sales, the six alleged sales—
‘‘The Court: How many?
‘‘[Attorney] Hutchinson: I’m going to say it’s—
‘‘The Defendant: Matter of fact you know what, Your Honor? We don’t
even need them. Let’s just start with Mrs. Hutchinson then. I’ll go with
Mrs. Hutchinson.
‘‘The Court: You’ll go with Miss Hutchinson?’
‘‘The Defendant: Yes, I will.
‘‘The Court: Well okay, you know, I’ll tell you, I think that’s a—
‘‘The Defendant: I already know, Your Honor.
‘‘The Court: —wise decision.
‘‘The Defendant: You know what, what am I gonna do, man? I don’t wanna
do this, but you know what I’m sayin’, man? . . . I mean, I want to go over
the stuff itself, man, and try to figure out, you know what I’m saying, because
like I explained to you on many occasions, and you know what I explained
to you.
‘‘The Court: Okay. Now you want to go forward with Miss Hutchinson?
‘‘The Defendant: Yes, yes, I’m going to go forward with Miss Hutchinson,
man.’’ (Internal quotation marks omitted.) State v. Bush, supra, 156 Conn.
App. 282–83.
34
With respect to timely requests for self-representation, there are ‘‘four
instances’’ that support denial: ‘‘A defendant’s request may be denied when
a court finds that the defendant is not competent to represent himself . . .
or that he has not knowingly and intelligently waived his right to the assis-
tance of counsel. . . . A court can also deny such request because it was
made for dilatory or manipulative purposes . . . or because the defendant’s
behavior is disruptive or obstructive.’’ (Citations omitted.) State v. Braswell,
318 Conn. 815, 829, 123 A.3d 835 (2015).
35
In Flanagan, we adopted the balancing test utilized by the Second
Circuit; see Williams v. Bartlett, 44 F.3d 95, 99 n.1 (2d Cir. 1994); and held
that, ‘‘when a defendant clearly and unequivocally has invoked his right to
self-representation after the trial has begun, the trial court must consider:
(1) the defendant’s reasons for the self-representation request; (2) the quality
of the defendant’s counsel; and (3) the defendant’s prior proclivity to substi-
tute counsel. If, after a thorough consideration of these factors, the trial
court determines, in its discretion, that the balance weighs in favor of the
defendant’s interest in self-representation, the court must then proceed to
canvass the defendant in accordance with Practice Book § 44-3 to ensure
that the defendant’s choice to proceed pro se has been made in a knowing
and intelligent fashion. If, on the other hand, the court determines, on the
basis of those criteria, that the potential disruption of the proceedings
already in progress outweighs the defendant’s interest in self-representation,
then the court should deny the defendant’s request and need not engage in
a § 44-3 canvass.’’ State v. Flanagan, supra, 293 Conn. 433.
36
To this end, the Ninth Circuit cases relied upon by the defendant are
distinguishable insofar as they concern requests for self-representation that
were timely because they were made prior to the commencement of trial.
See United States v. Farias, supra, 618 F.3d 1054–55 (given lack of evidence
or finding that defendant was acting to delay trial, with motion made at
pretrial hearing, trial court deprived defendant of right of self-representation
by requiring him to start trial immediately should he elect to represent
himself because ‘‘we are certain that a single day’s preparation was wholly
insufficient’’); United States v. Royal, supra, 43 Fed. Appx. 44–45 (improper
denial of pretrial motion for self-representation not cured by subsequently
allowing defendant to proceed as self-represented party on morning of trial
without giving him opportunity to ‘‘adequately prepare’’ via grant of less
than thirty day motion for continuance, when record showed no evidence
of inconvenience for court or other parties); Armant v. Marquez, supra, 772
F.2d 557–58 (abuse of discretion to deny continuance because rescheduling
would not have been difficult and defendant needed time to call additional
witnesses, make additional motions, and review preliminary hearing tran-
script).
37
Other cases similarly demonstrate the proper exercise of a trial judge’s
discretion to deny a motion for a continuance to facilitate a request for self-
representation. See People v. Jenkins, supra, 22 Cal. 4th 1038–40 (trial court
did not deprive defendant of due process in denying motion for continuance
once it granted his midtrial request to proceed as self-represented party
because it advised defendant of perils including that no additional prepara-
tion time would be granted, and defense counsel had adequate preparation
time and was serving as standby counsel); accord Barham v. Powell, supra,
895 F.2d 22–23 (denial of self-represented defendant’s pretrial request for
fifty-six day continuance was not abuse of discretion that deprived him
of right to self-representation as trial had already been delayed twice at
defendant’s request ‘‘because of changes in his representation,’’ and availabil-
ity of standby counsel to provide legal research materials accommodated
for lack of library access while he was incarcerated awaiting trial); State
v. Lamar, 205 Ariz. 431, 437–38, 72 P.3d 831 (2003) (trial court did not abuse
discretion by denying pretrial denial of motion for continuance because [1]
defendant ‘‘has failed to explain why he could not meaningfully exercise
his right to self-representation without a continuance,’’ [2] rescheduling
murder trial, which had already been continued several times, ‘‘would have
caused considerable inconvenience,’’ [3] defendant represented familiarity
with case during canvass and discharged attorneys were available to serve
as standby counsel, and [4] defendant did not elect self-represented status
until more than two years after entering plea of not guilty), cert. denied,
541 U.S. 940, 124 S. Ct. 1655, 158 L. Ed. 2d 362 (2004).
38
We note that the record does not establish, and the parties disagree, as
a factual matter about whether the defendant had ever personally seen the
state’s 900 page disclosure prior to trial and the trial court’s grant of a four
day review period. Specifically, the state argues that the Appellate Court’s
conclusion that ‘‘Thursday night, Friday, Saturday, and Sunday was an inade-
quate amount of time for the defendant to meaningfully review the state’s
disclosure’’ was predicated ‘‘upon the erroneous assumption that the defen-
dant had never seen those documents during the eight months prior to trial
when he was represented by counsel,’’ particularly given that the trial court
had granted a continuance four months earlier to allow Hutchinson to review
the state’s belated and voluminous disclosure. The defendant, however,
emphasizes that his statements in the record demonstrate that he had not
received any documents from Hutchinson, and that this lapse was a factor
contributing to the breakdown of their relationship. The defendant also
relies on Hutchinson’s representation to the trial court that ‘‘whether [he
represents himself] or there’s an attorney, whoever is defending the case
would be looking at these papers all weekend long,’’ as demonstrating that
the defendant had not seen them before. Even if we accept the defendant’s
reading of the record, which he contends demonstrates that he had person-
ally never seen those documents prior to the commencement of trial, the
trial court nevertheless did not abuse its discretion in denying the continu-
ance. Given the late assertion of the defendant’s right to self-representation
and the fact that several jurors had already been selected, the trial court
reasonably relied on Hutchinson’s representations, as an officer of the court,
that she had culled the portions that related specifically to the defendant
for his review. This is particularly so, given that Hutchinson remained in
the case as standby counsel and would have been available to advise the
defendant with respect to the content of the remaining records.