State v. Kerlyn T. ( 2019 )

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STATE OF CONNECTICUT v. KERLYN T.*
(AC 40163)
Prescott, Elgo and Pellegrino, Js.
Syllabus
Convicted of the crimes of aggravated sexual assault in the first degree,
home invasion, risk of injury to a child, assault in the second degree
with a firearm, unlawful restraint in the first degree, threatening in the
first degree and assault in the third degree, the defendant appealed to
this court. He claimed that the trial court erred in finding that his jury
trial waiver was knowing, intelligent and voluntary under the totality
of the circumstances, and by failing to conduct an adequate inquiry into
the underlying facts giving rise to his request to remove his privately
retained defense counsel. Held:
1. The trial court did not err when it determined that the defendant know-
ingly, intelligently, and voluntarily waived his right to a jury trial:
although the defendant claimed that he was not competent at the time
he waived his right to a jury trial, the record showed that prior to the
waiver, he was twice determined to be competent by the trial court,
and the record also indicated that the defendant was represented by
counsel at the time of the waiver, that the defendant believed that he
had sufficient time to discuss the decision with defense counsel, that
the defendant was satisfied with the advice of defense counsel, that the
court explained the purpose of the canvass as it related to the waiver,
that the defendant understood the right he was giving up, and that
the court informed the defendant that his election was not revocable;
moreover, the defendant could not prevail on his claim that the colloquy
was constitutionally inadequate because it failed to elicit information
regarding his background, experience, conduct, and mental and emo-
tional state, as the defendant was approximately thirty-two years of age,
had lived in the United States for all of his adult life, and was familiar
with the court system, and our courts repeatedly have rejected claims
that an otherwise valid waiver of the right to a jury is undermined by
the trial court’s failure to include a specific item of information in
its canvass.
2. The trial court did not abuse its discretion when it determined that the
defendant had not demonstrated a substantial reason that warranted
either the discharge of defense counsel or a more searching inquiry into
the request; the record indicated that the trial court inquired as to the
reason for the defendant’s request to discharge defense counsel and
requested that defense counsel address the issue on the record, the
defendant’s principal complaint concerned a matter of trial strategy,
which does not necessarily compel the appointment of new counsel,
the defendant’s own behavior toward defense counsel contributed to
the frequent delays at trial, and given that at no other time during the
proceedings did the defendant state his desire to discharge defense
counsel, request the appointment of a public defender, or request to
proceed as a self-represented party, and given that the defendant demon-
strated through his subsequent cooperation with defense counsel during
his case-in-chief that his relationship with defense counsel had not
wholly broken down, the court had good reason to doubt whether the
defendant’s request was based on a substantial reason.
Argued March 14—officially released July 30, 2019
Procedural History
Substitute information, in the first case, charging the
defendant with the crimes of criminal attempt to com-
mit assault in the first degree, intimidating a witness,
strangulation in the second degree, and assault in the
third degree, and substitute information, in the second
case, charging the defendant with three counts of the
crime of threatening in the first degree, and with the
crimes of aggravated sexual assault in the first degree,
home invasion, risk of injury to a child, assault in the
second degree with a firearm, assault in the third
degree, kidnapping in the first degree with a firearm,
unlawful restraint in the first degree, criminal posses-
sion of a firearm, and criminal violation of a protective
order, brought to the Superior Court in the judicial
district of Danbury, where the cases were consolidated
and tried to the court, Russo, J.; thereafter, the court
granted the defendant’s motion for a judgment of acquit-
tal as to the charge of criminal attempt to commit
assault in the first degree; judgments of guilty of two
counts each of assault in the third degree and threaten-
ing in the first degree, and of aggravated sexual assault
in the first degree, home invasion, risk of injury to a
child, assault in the second degree with a firearm, and
unlawful restraint in the first degree, from which the
defendant appealed to this court. Affirmed.
James B. Streeto, senior assistant public defender,
for the appellant (defendant).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Stephen J. Sedensky III,
state’s attorney, and Sharmese Hodge, assistant state’s
attorney, for the appellee (state).
Opinion
PELLEGRINO, J. The defendant, Kerlyn T., appeals
from the judgments of conviction, rendered following
a trial to the court, of aggravated sexual assault in the
first degree in violation of General Statutes § 53a-70a
(a) (1), home invasion in violation of General Statutes
§ 53a-100aa (a) (2), risk of injury to a child in violation
of General Statutes § 53-21 (a) (1), assault in the second
degree with a firearm in violation of General Statutes
§ 53a-60a (a), unlawful restraint in the first degree in
violation of General Statutes § 53a-95 (a), and two
counts each of threatening in the first degree in violation
of General Statutes § 53a-61aa (a) (3),1 and assault in
the third degree in violation of General Statutes § 53a-
61 (a) (1). On appeal, the defendant claims that the
court erred (1) in finding that his jury trial waiver was
knowing, intelligent and voluntary, and (2) by failing
to conduct an adequate inquiry into the underlying facts
giving rise to his request to remove his privately retained
counsel. Upon review, we conclude that the court did
not err when it determined that the defendant’s jury
trial waiver was knowing, intelligent and voluntary, nor
did it err when it denied the defendant’s request to
remove defense counsel midtrial without a more search-
ing inquiry. Accordingly, we affirm the judgments of
conviction.
In its oral decision, the court found the following
relevant facts. On May 26, 2013, the defendant con-
fronted and assaulted the victim. On May 28, 2014, the
defendant broke into the victim’s Danbury apartment
armed with a semiautomatic assault style rifle. Although
the victim was not present, the defendant remained in
the apartment, concealing himself therein. The victim
returned to the apartment later that evening accompa-
nied by her minor child2 and a coworker. Once inside,
they were confronted by the defendant and held at
gunpoint inside for approximately three hours. During
that time, the defendant forcefully restrained the victim,
bound her to a chair, taped her mouth shut and, there-
after, assaulted her both physically and sexually, while
the minor child and the coworker were present in
the apartment.
The defendant was subsequently arrested. The opera-
tive informations charged the defendant with aggra-
vated sexual assault in the first degree in violation of
§ 53a-70a (a) (1), home invasion in violation of § 53a-
100aa (a) (2), risk of injury to a child in violation of
§ 53-21 (a) (1), assault in the second degree with a
firearm in violation of § 53a-60a (a), unlawful restraint
in the first degree in violation of § 53a-95 (a), two counts
of assault in the third degree in violation of § 53a-61
(a) (1), three counts of threatening in the first degree
in violation of § 53a-61aa (a) (3), criminal attempt to
commit assault in the first degree in violation of General
Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1), strangula-
tion in the second degree in violation of General Stat-
utes (Rev. to 2013) § 53a-64bb (a), intimidating a wit-
ness in violation of General Statutes § 53a-151a,
kidnapping in the first degree with a firearm in violation
of General Statutes § 53a-92a, criminal possession of a
firearm in violation of General Statutes § 53a-217 (a)
(1),3 and criminal violation of a protective order in viola-
tion of General Statutes (Rev. to 2013) § 53a-223.
A six day trial to the court was held in February and
May, 2016. At trial, the court heard testimony from,
among others, the victim, the coworker, and the defen-
dant relating to the May 26, 2013 confrontation and the
May 28, 2014 home invasion. After largely crediting the
testimony of the victim and the coworker, the court
found the defendant guilty on nine counts.4 This appeal
followed. Additional facts will be provided as necessary.
I
On appeal, the defendant first claims that the court
erred when it determined that he knowingly, intelli-
gently and voluntarily waived his right to a jury trial
under the totality of the circumstances.5 Specifically,
the defendant claims that his waiver was constitution-
ally inadequate because, despite stating that he was not
ready to make such a decision, the choice was ‘‘imposed
on [him] by the combined pressure of the court, the
prosecutor, and [defense counsel].’’ The defendant fur-
ther claims that, at a minimum, the court should have
informed the defendant of, among other things, the
number of jurors that comprise a jury panel and that
a jury’s verdict must be unanimous. We disagree.
The following additional facts are relevant to the
defendant’s claim. On January 22, 2015, following the
defendant’s arrest, Attorney Mark Johnson, a public
defender, appeared before the court on behalf of the
defendant and requested a formal competency evalua-
tion of the defendant pursuant to General Statutes § 54-
56d, on the basis of Attorney Johnson’s belief that the
defendant was unable to assist in his own defense.6
During an otherwise brief hearing, the court granted
the motion after Attorney Johnson stated that the defen-
dant’s state of mind was impairing his ability to prepare
a proper defense.
The competency evaluation was conducted on Febru-
ary 13, 2015, by the Office of Forensic Evaluations,
which determined that the defendant, at that time, was
not competent to stand trial. It further concluded that
there was a ‘‘substantial probability [that the defendant]
could be restored to competence within the maximum
statutory time frame,’’ and, therefore, ‘‘recommend[ed]
an initial commitment period of sixty days . . . [in] the
least restrictive setting . . . .’’ (Emphasis added.)
After the court adopted the evaluation, the defendant
was admitted to Whiting Forensic Division of Connecti-
cut Valley Hospital (Whiting) for treatment and rehabili-
tation. On May 7, 2015, the court, Russo, J., adopted
the conclusion of a second competency evaluation
administered at Whiting on April 23, 2015, that deter-
mined that the defendant was competent to stand trial.7
On November 6, 2015, after the defendant rejected
the state’s offer of a plea agreement, the court notified
the defendant that the matter would be placed on the
trial list and that jury selection would commence the
following month. On February 6, 2016, when the defen-
dant appeared before Judge Russo for jury selection,
the defendant requested that the court provide him with
more time to consider whether to elect a jury trial or
a court trial. The court denied his request.
At that hearing, defense counsel, Attorney Gerald
Klein,8 was unable to ascertain whether the defendant
wanted to elect a jury trial or a court trial and moved
for a second § 54-56d competency evaluation due to
his belief that the defendant was unable to continue
assisting with his own defense. In response, the court
engaged the defendant in a lengthy colloquy and permit-
ted him to speak freely about various grievances, which
ranged from his frustrations with the discovery process
to an alleged assault that occurred during his confine-
ment at Whiting.
At the conclusion of the colloquy, the court denied
Attorney Klein’s request for a second competency evalu-
ation, stating: ‘‘[A]fter spending nearly [one and one-
half hours] with [the defendant] on a number of topics,
[I] cannot justify ordering the examination for a variety
of reasons. For one, [the defendant] has presented him-
self here today, as I have witnessed him in the past,
[as] a competent, articulate, [and] to steal a phrase from
[Attorney] Klein, [as] a very measured individual, who,
at least in my view, certainly understands the nature
of the proceedings here in court, certainly understands
the function of the personnel that are assembled in
this very room, certainly understands the nature of the
proceedings against him and the charges that have been
alleged against him. . . . I also believe—and I realize
that . . . [Attorney] Klein may [disagree] on this
point—that [the defendant] does have the ability to
assist in his own defense. . . . So, I do not find that
the examination at this point in time is justified.’’
The court proceeded to address the issue of whether
the defendant would elect a jury or a court trial. Taking
into account the defendant’s earlier request for more
time, the court provided an additional opportunity for
the defendant to meet with Attorney Klein. After a forty
minute recess, the defendant waived his right to a jury
trial and elected a court trial. Prior to making that deci-
sion, the following canvass occurred on the record.
‘‘The Court: . . . I would ask both counsel to pay
particular[ly] close attention to my questions. If I miss
any, please let me know, so that we can complete the
canvass. . . . [O]n the issue of waiving your constitu-
tional right to a jury trial . . . the United States consti-
tution and our state constitution both mandate that you
have a constitutional right to be tried by a jury of your
peers. Do you understand that, [sir]?
‘‘The Defendant: Yes, Your Honor.
‘‘The Court: And after speaking with you and, equally
as important, speaking with [Attorney] Klein, you have
elected to waive that right to a jury trial and you’ve
elected to have [what is] called a courtside trial, mean-
ing that, likely me or someone like me, another Superior
Court judge, would be the finder of fact in the trial and
also would be the sentencing judge if you were found
guilty. . . . Is that your understanding, [sir]?
‘‘The Defendant: Yes, I understand . . . .
***
‘‘The Court: [Sir], are you on any drugs or medication
that would affect your ability to understand what I’m
saying right now?
‘‘The Defendant: No, Your Honor.
‘‘The Court: And have you had time to consult with
[Attorney] Klein about your election to waive your con-
stitutional right to a trial by jury and [to] elect a court-
side trial? . . .
‘‘The Defendant: Yes, Your Honor.
‘‘The Court: And I believe [Attorney] Klein . . . said
that he would encourage you to waive your right to a
jury trial and elect a trial by the court. And do you
agree with him on that suggestion, [sir]?
‘‘The Defendant: Yes, Your Honor.
‘‘The Court: And are you aware . . . [that], as you
stand there today, you are cloaked with the presump-
tion of innocence, and I look at you as a person who
is presumed innocent?
‘‘The Defendant: Yes, Your Honor.
***
‘‘The Court: Do you understand, [sir], that you have
been charged with those charges that I’ve just recited
for you here today on the record? . . .
‘‘The Defendant: Yes, Your Honor, I understand.
***
‘‘The Court: Is there any other question that either
counselor would feel comfortable if I ask?
***
‘‘[Attorney] Klein: . . . I would suggest . . . [that]
the court [tell] him that this is a final decision as to
these matters, and he can’t change his mind . . . .
‘‘The Court: All right. And [the defendant is] nodding
his head in agreement with [defense counsel]. I do take
that as his—
‘‘The Defendant: Yes, Your Honor.
‘‘The Court: —his affirmation to the court that he
won’t change his mind and it will be a courtside trial.
***
‘‘[Attorney] Klein: Thank you, Your Honor.
‘‘The Court: Thank you, [sir].
‘‘The Defendant: No, thank you, Your Honor. I
appreciate that. God bless.’’
As a preliminary matter, we note that the defendant
raises this claim for the first time on appeal, requesting
review under State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989), as modified by In re Yasiel R.,
317 Conn. 773, 781, 120 A.3d 1188 (2015).9 Because the
record is adequate for review and the claim is of a
constitutional nature,10 we agree with the defendant
that the claim is reviewable under Golding.11 Accord-
ingly, we next consider whether the defendant’s claim
satisfied the third prong of Golding, namely, whether
‘‘the alleged constitutional violation . . . exists and
. . . [whether it] deprived the [defendant] of a fair
trial.’’ (Internal quotation marks omitted.) In re Yasiel
R., supra, 781.
‘‘The right to a jury trial in a criminal case is among
those constitutional rights which are related to the pro-
cedure for the determination of guilt or innocence. The
standard for an effective waiver of such a right is that
it must be knowing and intelligent, as well as voluntary.
. . . Relying on the standard articulated in Johnson v.
Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461
(1938), we have adopted the definition of a valid waiver
of a constitutional right as the intentional relin-
quishment or abandonment of a known right. . . . Our
task, therefore, is to determine whether the totality of
the record furnishes sufficient assurance of a constitu-
tionally valid waiver of the right to a jury trial. . . .
Our inquiry is dependent upon the particular facts and
circumstances surrounding [each] case, including the
background, experience, and conduct of the accused.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) State v. Gore, 288 Conn. 770, 775–77,
955 A.2d 1 (2008).
Moreover, ‘‘[i]n Gore, our Supreme Court concluded
that [although] the right to a jury trial must be personally
and affirmatively waived by the defendant in order to
render such waiver valid . . . [the] canvass need not
be overly detailed or extensive . . . . [Rather] it
should be sufficient to allow the trial court to obtain
assurance that the defendant: (1) understands that he
or she personally has the right to a jury trial; (2) under-
stands that he or she possesses the authority to give
up or waive the right to a jury trial; and (3) voluntarily
has chosen to waive the right to a jury trial and to elect
a court trial.’’ (Citations omitted; internal quotation
marks omitted.) State v. Scott, 158 Conn. App. 809,
815–16, 121 A.3d 742, cert. denied, 319 Conn. 946, 125
A.3d 527 (2015). Furthermore, this court has held that
‘‘the canvass required for a jury trial waiver [need not]
be as extensive as [for example] the canvass constitu-
tionally required for a valid guilty plea because in plead-
ing guilty, a defendant forfeits a number of constitu-
tional rights.’’ (Internal quotation marks omitted.) Id.,
816.
Critically, our Supreme Court ‘‘repeatedly has deter-
mined that, even when a defendant has a history of
mental illness and/or incompetency, if he presently is
competent, the trial judge need not engage in a more
searching canvass than typically is required before
accepting the defendant’s waiver of his right to a jury.’’
State v. Rizzo, 303 Conn. 71, 110, 31 A.3d 1094 (2011),
cert. denied, 568 U.S. 836, 133 S. Ct. 133, 184 L. Ed. 2d
64 (2012). In such a case, we look to the ‘‘totality of
the circumstances analysis to determine whether the
defendant’s personal waiver of a jury trial was made
knowingly, intelligently and voluntarily.’’ State v. Gore,
supra, 288 Conn. 782 n.12.
On appeal, the defendant claims, in essence, that the
trial court’s canvass was constitutionally inadequate
because he was suffering from an unspecified mental
illness at the time he waived his right to a jury trial
and, therefore, his waiver could not be knowing, intelli-
gent, and voluntary.12 Despite the defendant’s sugges-
tion that he was not competent at the time he waived
his right to a jury trial, the record shows that prior to
the waiver he was twice determined to be competent
by Judge Russo. See State v. Ouellette, 271 Conn. 740,
752–53, 859 A.2d 907 (2004) (‘‘It is undisputed that an
accused who is competent to stand trial also is compe-
tent to waive constitutional rights. . . . Thus, any crim-
inal defendant who has been found competent to stand
trial, ipso facto, is competent to waive the right to [a
jury trial] as a matter of federal constitutional law.’’
[Citation omitted; footnote omitted; internal quotation
marks omitted.]); see also State v. Rizzo, supra, 303
Conn. 110 (court denying defendant’s claim that more
robust canvass was necessary because of his history
of mental illness).
Here, in addition to the competency determinations,
the record also indicates that the defendant was repre-
sented by counsel at the time of the waiver and that
he believed that he had sufficient time to discuss the
decision with Attorney Klein. Furthermore, the defen-
dant stated on the record that he was satisfied with
Attorney Klein’s advice. See State v. Scott, supra, 158
Conn. App. 817 (defendant’s consultation with defense
counsel concerning right to waive jury trial supports
conclusion that waiver was constitutionally sound).
In addition, the record indicates that the court
explained the purpose of the canvass as it related to
the waiver and that the defendant understood the right
that he was giving up. See State v. Woods, 297 Conn.
569, 586, 4 A.3d 236 (2010). During the canvass, the
defendant’s responses were delivered in a clear and
unequivocal, ‘‘yes, Your Honor,’’ ‘‘no, Your Honor.’’ See
State v. Scott, supra, 158 Conn. App. 818 (‘‘[t]he defen-
dant’s immediate and unequivocal replies to the court’s
inquiries reflected his strong desire to proceed to trial
before the court, not a jury’’ [internal quotation marks
omitted]). Finally, at the conclusion of the canvass, the
court asked whether it had missed anything. In response
to the court’s inquiry, Attorney Klein asked the court
to inform the defendant that his election was not revoca-
ble, and the court promptly did so, thus, assuring itself
that the defendant knew he could not change his mind.
Despite these facts, the defendant further asserts that
the colloquy was constitutionally inadequate because
it failed to elicit information regarding ‘‘the defendant’s
background, experience, conduct, and . . . mental and
emotional state.’’ Specifically, the defendant argues
that, because he was reared in a country with a civil
legal system, and because he does not possess a high
school diploma, the court’s failure to provide a more
thorough canvass constitutes reversible error.
As previously stated in this opinion, ‘‘our inquiry is
dependent upon the particular facts and circumstances
surrounding [each] case, including the background,
experience, and conduct of the accused.’’ (Internal quo-
tation marks omitted.) State v. Gore, supra, 288 Conn.
777. The record indicates that at the time of the waiver,
the defendant was approximately thirty-two years of
age, had lived in the United States for all of his adult
life, and was familiar with the court system, having
pleaded guilty to a series of misdemeanors in 2012 in
connection with three separate criminal matters. See
State v. Smith, 100 Conn. App. 313, 324, 917 A.2d 1017
(in determining whether defendant validly waived right
to jury trial, court considered fact that defendant ‘‘had
some familiarity with the court system, having a lengthy
criminal history that included robberies’’), cert. denied,
282 Conn. 920, 925 A.2d 1102 (2007).
In sum, ‘‘[t]he court’s failure to include in its canvass
[certain information, such as] the number of jurors to
which the defendant would be entitled and the require-
ment that the jury’s verdict be unanimous does not
compel the conclusion that the defendant’s waiver was
constitutionally deficient. Our courts [repeatedly] have
declined to require [such] a formulaic canvass and have
rejected claims that an otherwise valid waiver of the
right to a jury is undermined by the trial court’s failure
to include a specific item of information in its canvass.’’
(Internal quotation marks omitted.) State v. Scott, supra,
158 Conn. App. 819; see also State v. Rizzo, supra, 303
Conn. 99–105.
For these reasons, we conclude that the court did not
err when it determined that the defendant knowingly,
intelligently, and voluntarily waived his right to a jury
trial. Accordingly, the defendant’s claim does not satisfy
the third prong of Golding and, therefore, fails.
II
The defendant next claims that the trial court erred
in failing to conduct an adequate inquiry following the
defendant’s request to replace his privately retained
counsel. Specifically, he claims that the court abused its
discretion because it ‘‘simply rejected the defendant’s
grievances on their face’’ and ‘‘failed to conduct any
type of inquiry’’ into his request. (Emphasis omitted;
internal quotation marks omitted.) We disagree.
The following facts and procedural history are rele-
vant to the defendant’s claim. On May 11, 2016, prior
to the start of the fourth day of trial, the defendant
made an oral motion to discharge Attorney Klein, claim-
ing that he was not representing his interests. The court
inquired as to the reason for the defendant’s request.
The defendant explained that he did not like that Attor-
ney Klein encouraged him to accept the plea agreement
offered by the state, and, additionally, he thought that
Attorney Klein was not properly conducting cross-
examination of the witnesses because he was not put-
ting on evidence in response to their testimony. The
court denied the motion after reminding the defendant
that he would be able to put on evidence and call his
own witnesses during his case-in-chief after the state
rested its case.
As a preliminary consideration, ‘‘we note that we look
with a jaundiced eye at complaints regarding adequacy
of counsel made on the eve of trial, or during the trial
itself’’; State v. Robinson, 227 Conn. 711, 726, 631 A.2d
288 (1993); because, ‘‘[w]hile a criminal defendant’s
right to be represented by counsel implies a degree of
freedom to be represented by counsel of [the] defen-
dant’s choice . . . this guarantee does not grant a
defendant an unlimited opportunity to obtain alternate
counsel on the eve of trial. . . . A request for substitu-
tion of counsel requires support by a substantial rea-
son, and may not be used to achieve delay.’’ (Citations
omitted; emphasis added; internal quotation marks
omitted.) State v. Gonzalez, 205 Conn. 673, 683, 535
A.2d 345 (1987). ‘‘Where a defendant voices a seemingly
substantial complaint about counsel, the court should
inquire into the reasons for dissatisfaction.’’ (Internal
quotation marks omitted.) State v. Robinson, supra, 725.
In challenging the court’s inquiry, the defendant does
not claim that the request to discharge counsel was, in
fact, supported by a ‘‘substantial reason.’’ Rather, he
claims that simply because he made such a request, the
court should have initiated a more searching inquiry
into the underlying reasons and, at a minimum,
explained the different legal options available to him
and allowed him to seek alternative representation. We
are not persuaded.
‘‘If [t]he defendant’s [request falls] . . . short of a
seemingly substantial complaint, we have held that the
trial court need not inquire into the reasons underlying
the defendant’s dissatisfaction with his attorney. . . .
The extent of an inquiry into a complaint concerning
defense counsel lies within the discretion of the trial
court.’’ (Citation omitted; internal quotation marks
omitted.) State v. Robinson, supra, 227 Conn. 725. ‘‘In
evaluating whether the trial court abused its discretion
in denying [the] defendant’s motion for substitution
of counsel, [an appellate court] should consider the
following factors: [t]he timeliness of the motion; ade-
quacy of the court’s inquiry into the defendant’s com-
plaint; and whether the attorney/client conflict was so
great that it had resulted in total lack of communication
preventing an adequate defense.’’ (Internal quotation
marks omitted.) State v. Hernaiz, 140 Conn. App. 848,
854–55, 60 A.3d 331, cert. denied, 308 Conn. 928, 64
A.3d 121 (2013).
In applying the abuse of discretion standard to the
record before us, we are particularly mindful of the
context in which the motion to discharge counsel arose
and that the court had an opportunity to observe the
defendant’s interactions with Attorney Klein over time
and, therefore, was in a superior position to determine
whether there was a proper factual basis for the defen-
dant’s request. See State v. Rosado, 52 Conn. App. 408,
430, 726 A.2d 1177 (1999) (‘‘It is within the trial court’s
discretion to determine whether a factual basis exists
for appointing new counsel. . . . [A]bsent a factual
record revealing an abuse of [the court’s] discretion,
the court’s failure to allow new counsel is not reversible
error.’’ [Internal quotation marks omitted.]).
Principally, the defendant’s claim that the court sim-
ply dismissed his request outright is belied by the
record. The record indicates that the court did, in fact,
inquire as to the reason for his request to discharge
Attorney Klein, at which point, the defendant repeated
his complaints. The court also made an additional
inquiry by requesting that Attorney Klein address the
issue on the record.13 Furthermore, we note that the
defendant’s principal complaint concerned a matter of
trial strategy. As our Supreme Court has stated: ‘‘[A
difference] of opinion over trial strategy . . . [does]
not necessarily compel the appointment of new coun-
sel.’’ (Internal quotation marks omitted.) State v. Rob-
inson, supra, 227 Conn. 726–27. In addition, it was the
defendant’s own behavior toward Attorney Klein that
contributed to the frequent delays at trial. See id., 727
(‘‘[a] defendant is not entitled to demand a reassignment
of counsel simply on the basis of a breakdown in com-
munication which he himself induced’’ [internal quota-
tion marks omitted]).
Given that at no other time during the proceedings
did the defendant state his desire to discharge defense
counsel, request the appointment of a public defender,
or request to proceed as a self-represented party, and
given that the defendant demonstrated through his sub-
sequent cooperation with defense counsel during his
case-in-chief that his relationship with defense counsel
had not wholly broken down, the court had good reason
to doubt whether the defendant’s request was based
on a ‘‘substantial reason.’’ Accordingly, we conclude
that the court did not abuse its discretion when it deter-
mined that the defendant had not demonstrated a sub-
stantial reason that warranted either the discharge of
defense counsel or a more searching inquiry into the
request.
The judgments are affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual assault and the crime of risk of injury to a child, we decline
to identify the victims or others through whom the victims’ identities may
be ascertained. See General Statutes § 54-86e; State v. Jose G., 290 Conn.
331, 963 A.2d 42 (2009).
1
Although § 53a-61aa (a) (3) was the subject of technical amendments in
2016; see Public Acts 2016, No. 16-67, § 6; those amendments have no bearing
on the merits of this appeal. In the interest of simplicity, we refer to the
current revision of the statute.
2
The defendant is the biological father of the minor child.
3
Although § 53a-217 (a) (1) was the subject of technical amendments in
2015; see Public Acts, Spec. Sess., June, 2015, No. 15-2, § 6; those amend-
ments have no bearing on the merits of this appeal. In the interest of
simplicity, we refer to the current revision of the statute.
4
During trial, the defendant moved for a judgment of acquittal, and the
court dismissed one count of criminal attempt to commit assault in the first
degree. After the close of evidence, the court found the defendant not guilty
of strangulation in the second degree, criminal violation of a protective
order, kidnapping in the first degree with a firearm, one count of threatening
in the first degree, and criminal possession of a firearm. The court also
dismissed one count of intimidating a witness for improper pleading.
5
Without expressly challenging the court’s competency findings, the
defendant seems to suggest that he was not competent when the waiver
was made because of an unspecified mental illness that he was suffering
from at the time. For the reasons stated herein, we are not persuaded.
6
General Statutes § 54-56d provides in relevant part: ‘‘(a) . . . a defendant
is not competent if the defendant is unable to understand the proceedings
against him or her or to assist in his or her own defense.’’ (Emphasis added.)
7
The following colloquy took place between defense counsel, Attorney
Johnson, and the court during the defendant’s second competency hearing
on May 7, 2015.
‘‘The Court: [I have] . . . a report dated April 27, 2015, from the Depart-
ment of Mental Health and Addiction Services. That report [is] very compre-
hensive, and it does conclude that [the defendant], who is present in court
today . . . has been restored to competency and does demonstrate a suffi-
cient understanding of the proceedings and can ably assist in his own
defense. [Attorney] Johnson?
‘‘[Attorney] Johnson: Yes, Your Honor . . . as I said, [we would stipulate
to the findings contained in that exhibit and request] that he be released
back to [the Department of Correction] at this time.’’
8
Attorney Johnson represented the defendant during the preliminary
stages of his criminal proceedings relating to the May, 2014 home invasion,
in addition to a number of other matters that arose prior to that arrest.
Attorney Johnson was later replaced by privately retained counsel, Attorney
Klein, in June, 2015. Thereafter, Attorney Klein represented the defendant
during all relevant proceedings.
9
Pursuant to Golding, ‘‘a defendant can prevail on a claim of constitutional
error not preserved at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim of error; (2) the claim
is of constitutional magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless error analysis, the
state has failed to demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail.’’ (Emphasis omitted; footnote
omitted.) State v. Golding, supra, 213 Conn. 239–40; see also In re Yasiel
R., supra, 317 Conn. 781.
10
Although the defendant also asserts a violation of our state constitution,
he has provided no independent state constitutional analysis. We, thus, limit
our review to the defendant’s federal constitutional claim. See State v.
Jarrett, 82 Conn. App. 489, 498 n.5, 845 A.2d 476, cert. denied, 269 Conn.
911, 852 A.2d 741 (2004).
11
Additionally, the defendant requests that this court use its supervisory
authority to establish a more uniform procedure for conducting a canvass
on the waiver of the right to a jury trial. ‘‘Supervisory authority is an extraordi-
nary remedy that should be used sparingly . . . .’’ (Internal quotation marks
omitted.) State v. Edwards, 314 Conn. 465, 498, 102 A.3d 52 (2014). Because
traditional protections are adequate to safeguard the rights of a defendant
who waives his right to a jury trial and to safeguard the integrity of the
judicial system, we decline to exercise our supervisory powers in the present
case. See State v. Scott, 158 Conn. App. 809, 820–21, 121 A.3d 742, cert.
denied, 319 Conn. 946, 125 A.3d 527 (2015).
12
In support of his claim, the defendant directs our attention to dicta in
our Supreme Court’s decision in State v. Ouellette, 271 Conn. 740, 754–55
n.18, 859 A.2d 907 (2004), in which the court addressed a similar claim. In
Ouellette, the defendant claimed that ‘‘the trial court failed to canvass [the
defendant] adequately regarding his waiver of the right to a jury trial in
light of his history of mental illness.’’ Id., 754 n.18. In considering that claim,
the court noted that the nonbinding authority cited by the defendant did
not ‘‘[constitute] persuasive precedent for [his] claim.’’ Id. In the present
case, for example, one of the principal cases now cited by the defendant,
United States v. Christensen, 18 F.3d 822, 823 (9th Cir. 1994), which also
was relied on by the defendant in Ouellette, was determined to be of no
consequence because the court in Christensen ‘‘did not have the benefit of
a recent and comprehensive evaluation of the defendant’s mental condition
at the time of the jury trial waiver’’; State v. Ouellette, supra, 755 n.18; and,
thus, the case was materially distinct from the present case. Here, as in
Ouellette, the facts are equally as inapposite in that the trial court had a
recent and comprehensive competency evaluation of the defendant at the
time of the waiver.
13
In response, Attorney Klein stated: ‘‘The only thing I can add, You Honor
. . . is that I read a case just [last] week . . . [regarding] whether a formal
evidentiary hearing has to be held when someone seeks to remove counsel
at a critical time in the proceeding . . . . [T]he judge in that case did just
as Your Honor is doing, ask[ing] the reasons and if it doesn’t find . . . a
meaningful reason that would require sworn testimony, [then the decision
would be within the court’s discretion].’’