State v. Orlando ( 2016 )

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STATE OF CONNECTICUT v. GILBERT ORLANDO
(AC 36402)
Alvord, Keller and Flynn, Js.
Argued November 19, 2015—officially released February 16, 2016
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, White, J. [motion to remove
counsel]; White, Genuario and Povodator, Js.
[judgment].)
Alan Jay Black, for the appellant (defendant).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Richard J. Colangelo, Jr., state’s
attorney, and James M. Bernardi, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
FLYNN, J. The principal issue to be decided in this
case involves whether a criminal defendant has an abso-
lute right under either the United States constitution
or our state constitution to demand the replacement of
his court appointed counsel if such a request is made
almost five months prior to the date that his actual
trial begins.
The defendant, Gilbert Orlando, appeals from the
judgment of conviction by a three judge panel of two
counts of manslaughter in the first degree with a firearm
in violation of General Statutes § 53a-55a. His sole
ground for appeal arises out of the court’s denial of his
request for a new attorney to represent him in his trial,
which he alleges violates his right to counsel guaranteed
by the sixth amendment to the United States constitu-
tion and article first, § 8, of the Connecticut constitu-
tion. We conclude that the court did not abuse its
discretion in denying his motion to substitute counsel
and affirm the judgment.
The following procedural history and facts, which
the panel reasonably could have found, are pertinent
to our review. On June 14, 2010, the defendant went to
the home of his former wife, Enid Dickens, where a
dispute began between them. This dispute arose out of
the fact that locks had been changed at the home the
defendant had formerly occupied and his claim that
Dickens had enabled her brother to steal his identity,
who then used the defendant’s identity to pay for his
medical bills. After this argument at the home became
heated, and Dickens attempted to hit the defendant
with a lamp, he pulled out a gun and shot both his wife
and his mother-in-law, Rona Knight, causing their
deaths.
Shortly thereafter, the defendant telephoned both
Kerry Haynes and John Pounds admitting that he had
killed both women. A neighbor had heard the shots
fired by the defendant at Dickens’ home, alerted the
Norwalk police, and police response to the scene of the
killing was rapid. Sergeant Frank Reda of the Norwalk
Police Department, with the aid of a police dog, appre-
hended the defendant in a wooded area near Interstate
95. Detective David Orr of the Norwalk Police Depart-
ment interviewed the defendant and asked him where
the gun he had used was then located. The weapon, a
.357 Magnum, was seized after the defendant pointed to
it. Detective James O’Leary and Sergeant Drew Sedlock,
both of the Norwalk Police Department, interviewed
the defendant. O’Leary read the defendant his rights
under Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S.
Ct. 1602, 16 L. Ed. 2d 694 (1966), because the defendant
could not read. The defendant gave the police a state-
ment admitting that as the dispute escalated, he pulled
out his gun and shot both his former wife and her
mother. The defendant was arrested by the Norwalk
Police Department and ultimately arraigned in Norwalk
Superior Court. On June 15, 2010, the court, Comerford,
J., appointed public defender Barry Butler to represent
the defendant. On two occasions the defendant asked
the court to remove Butler and appoint another attorney
to represent him. The first request occurred before
October 5, 2012. The second request, which occurred
at trial, is not asserted as grounds for this appeal.
The defendant was charged in a substitute informa-
tion with two counts of murder in violation of General
Statutes § 53a-54a for the shooting deaths of Dickens
and Knight, respectively, and a third count of capital
felony in violation of General Statutes (Rev. to 2009)
§ 53a-54b (7). The capital felony charge was lodged
because there were two murders charged to the defen-
dant. The defendant interposed a defense of extreme
emotional disturbance, as provided in § 53a-54a (a).
After trial, the three judge panel found that this defense
was proved by the defendant by a preponderance of
the evidence. The panel, therefore, found the defendant
not guilty of both murder counts, but did find the defen-
dant guilty of manslaughter in the first degree with
a firearm pursuant to § 53a-55a. The panel found the
defendant not guilty of capital felony because the state
had failed to prove that two murders were committed
in the same transaction.
It is not disputed that at some point prior to October
5, 2012, the defendant made a pro se motion seeking
to replace Butler with a new court appointed attorney.
At that point in time, Butler had been representing the
defendant since his June 15, 2010 date of arraignment.
Butler had retained an expert for a mental health evalua-
tion of the defendant. The case was placed on the trial
list on September 13, 2011, but further mental evalua-
tions of the defendant were permitted. The state advised
the court on October 5, 2012, that at some point the
defendant had filed a handwritten pro se motion seeking
replacement of his court appointed counsel.
Judge White gave the defendant a hearing on his
motion to replace counsel and the defendant placed his
complaints about Butler on the record. They can be
summarized in five categories, that his counsel (1) was
not doing anything for him, (2) did not provide him
with paperwork concerning his case, (3) did not take
up and investigate his claim of identity theft, (4) did
not investigate his claim that Dickens and her family
were subjecting him to voodoo, and (5) did not secure
his clothing and other personal property while he was
jailed awaiting trial. In an articulation, Judge White
found that after careful consideration of the defendant’s
claims that they were ‘‘not credible and lacked a sub-
stantial factual basis.’’
In response to the defendant’s assertions, at the hear-
ing, Butler indicated that (1) he was prepared to try
the defendant’s case, (2) he had not given the defendant
written materials, but pointed out that the defendant
was illiterate, and noted that he had read to him
paperwork generated by the case, (3) he had the infor-
mation needed to present facts concerning the theft of
the defendant’s identity in connection with his defense
of extreme emotional disturbance, (4) the Dickens fam-
ily had destroyed physical evidence relating to voodoo
that prevented further investigation, (5) the defendant’s
personal property had been thrown away by the victim’s
family and therefore, Butler could not assist him in its
retrieval. In his articulation, Judge White, found that
he did credit Butler’s representations. The court further
found that Butler had ‘‘reviewed the State’s factual alle-
gations [against the defendant] with the defendant;
informed the defendant of all discovery related informa-
tion; was . . . preparing a defense of extreme emo-
tional disturbance based on the defendant’s identity
theft and voodoo claims; explained the applicable law
to him; [had] filed or would file all appropriate motions;
made a good faith effort to recover the defendant’s
personal belongings from the crime scene; and was fully
prepared to vigorously represent the defendant at trial.’’
Practice Book § 3-9 (e) provides, in pertinent part,
that subject to certain exceptions that do not apply to
these circumstances, ‘‘no attorney shall withdraw his
or her appearance after it has been entered upon the
record of the court without the leave of the court.’’
Practice Book § 3-10 (a) provides, in relevant part, that
‘‘[n]o motion for withdrawal of appearance shall be
granted unless good cause is shown . . . .’’ ‘‘A request
for substitution of counsel requires support by a sub-
stantial reason . . . .’’ State v. Drakeford, 202 Conn.
75, 83, 519 A.2d 1194 (1987). In his articulation, Judge
White found that ‘‘[t]here simply was no credible factual
basis or substantial reason that convinced this court to
exercise its discretion to allow the defendant to
change lawyers.’’
I
We first turn to the defendant’s claim under the
United States constitution that the court abused its
discretion in denying his motion to replace his court-
appointed counsel. We disagree with the defendant’s
claim.
On appellate review, such claims are reviewed under
an abuse of discretion standard. State v. Gonzalez, 205
Conn. 673, 683, 535 A.2d 345 (1987). A defendant has
a sixth amendment right to counsel. Wheat v. United
States, 486 U.S. 153, 158, 108 S. Ct. 1692, 100 L. Ed. 2d
140 (1988). However, an impecunious defendant does
not have a right to choose his own counsel. Caplin &
Drysdale, Chartered v. United States, 491 U.S. 617, 624,
109 S. Ct. 2646, 105 L. Ed. 2d 528 (1989). The sixth
amendment ‘‘guarantees defendants in criminal cases
the right to adequate representation, but those who do
not have the means to hire their own lawyers have no
cognizable complaint so long as they are adequately
represented by attorneys appointed by the courts.’’ Id.
‘‘The Sixth Amendment to the Constitution guaran-
tees that [i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel
for his defence. In United States v. Morrison, [449 U.S.
361, 364, 101 S. Ct. 665, 66 L. Ed. 2d 564] (1981), [the
Supreme Court] observed that this right was designed
to assure fairness in the adversary criminal process.
Realizing that an unaided layman may have little skill in
arguing the law or in coping with an intricate procedural
system, Powell v. Alabama, [287 U.S. 45, 69, 53 S. Ct.
55, 77 L. Ed. 158] (1932); United States v. Ash, [413 U.S.
300, 307, 93 S. Ct. 2568, 37 L. Ed. 2d 619] (1973), [the
Supreme Court has] held that the Sixth Amendment
secures the right to the assistance of counsel, by
appointment if necessary, in a trial for any serious
crime. . . . [The Supreme Court has] further recog-
nized that the purpose of providing assistance of coun-
sel is simply to ensure that criminal defendants receive
a fair trial, Strickland v. Washington, [466 U.S. 668,
689, 104 S. Ct. 2052, 80 L. Ed. 2d 674] (1984), and that
in evaluating Sixth Amendment claims, the appropriate
inquiry focuses on the adversarial process, not on the
accused’s relationship with his lawyer as such. . . .
Thus, while the right to select and be represented by
one’s preferred attorney is comprehended by the Sixth
Amendment, the essential aim of the Amendment is
to guarantee an effective advocate for each criminal
defendant rather than to ensure that a defendant will
inexorably be represented by the lawyer whom he pre-
fers.’’ (Citations omitted; internal quotation marks omit-
ted.) Wheat v. United States, supra, 486 U.S. 158–59.
When a defendant seeks to have court appointed
counsel removed and new counsel appointed, a trial
court must grant a defendant a hearing and the extent
of the inquiry is in the trial court’s discretion. State v.
Williams, 102 Conn. App. 168, 204–205, 926 A.2d 7, cert.
denied, 284 Conn. 906, 931 A.2d 267 (2007). The court
did not abuse its discretion in the extent of inquiry it
engaged in during the hearing it provided to the defen-
dant. It permitted the defendant to put all of his com-
plaints on record and allowed his attorney to respond.
The court did not abuse its discretion in denying the
defendant’s request for new counsel. Butler, at the time
of the defendant’s request, had been representing the
defendant for more than two years. He had extensive
involvement with the expert retained to assist in estab-
lishing the defense of extreme emotional disturbance.
This was a key defense because several witnesses had
heard the gunshots, the defendant had confessed to
being the killer to two others in separate telephone
conversations, he had admitted both killings to the
police, and the weapon used had been recovered by
the police. In short, there was a mountain of inculpatory
evidence to be climbed, but Butler nonetheless suc-
ceeded in proving the defense of extreme emotional
disturbance and obtaining not guilty findings as to the
murder and capital felony charges. Butler did not pro-
vide copies of papers to the defendant in connection
with the case, but he explained that was because the
defendant could not read. He did read them to the
defendant. Butler reported that he had looked into the
defendant’s claim that his identity had been stolen to
enable a brother-in-law to get medical treatment by
using the defendant’s name. In fact, this evidence was
later presented in connection with the defense of
extreme emotional disturbance. Furthermore, Butler
told the court that he was unable to gather evidence
of the defendant’s claim that the defendant’s in-laws
were using voodoo against the defendant or to assist
his client in the return of clothing or personal property
because Dickens’ family had disposed of all of these
items. Finally, the court heard Butler say that he was
ready and able to try the case. Based on this record,
the court did not abuse its discretion in denying the
defendant’s motion to appoint new counsel.
The defendant, in his brief, makes much of the fact
that his request for new counsel was made five months
before the actual trial began. We are not persuaded.
What this argument ignores is that a request must not
simply be timely so as not to be disruptive or dilatory,
but the reasons underlying it must be both asserted in
good faith and ‘‘substantial.’’ State v. Drakeford, supra,
202 Conn. 82. Here, the court did not credit any of
the defendant’s five claims, but it did credit Butler’s
representations as to his work on the case and consulta-
tions with his client. More importantly, the court found
that none of the defendant’s complaints was substantial.
The United States Supreme Court pointed out in
Wheat, citing Morris v. Slappy, 461 U.S. 1, 13–14, 103
S. Ct. 1610, 75 L. Ed. 2d 610 (1983), that ‘‘the essential
aim of the [Sixth] Amendment is to guarantee an effec-
tive advocate for each criminal defendant rather than
to ensure that a defendant will inexorably be repre-
sented by the lawyer whom he prefers.’’ Wheat v. United
States, supra, 486 U.S. 159. The court’s decision not to
substitute counsel for Butler was later confirmed when
the defendant was found not guilty by the three judge
panel of two murders and a charge of capital felony,
largely due to his attorney’s skill in proving the defense
of extreme emotional disturbance and raising reason-
able doubt about whether the defendant committed two
murders that were part of the same transaction.
II
‘‘It is well established that federal constitutional and
statutory law establishes a minimum national standard
for the exercise of individual rights and does not inhibit
state governments from affording higher levels of pro-
tection for such rights.’’ (Internal quotation marks omit-
ted.) State v. Geisler, 222 Conn. 672, 684, 610 A.2d 1225
(1992). It is against that backdrop that we next turn to
the defendant’s contentions that (1) article first, § 8,
of the Connecticut constitution should provide more
protections than does the United States constitution’s
sixth amendment, and (2) the abuse of discretion stan-
dard applied to sixth amendment claims should not be
the measure of appellate review of article first, § 8,
claims made under our Connecticut constitution.
Article first, § 8, provides, in pertinent part, that ‘‘[i]n
all criminal prosecutions, the accused shall have a right
to be heard by himself and by counsel . . . .’’ Conn.
Const., art. I, § 8. Our federal constitution provides, in
pertinent part, that ‘‘[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the [a]ssis-
tance of [c]ounsel for his defence.’’ U.S. Const., amend.
VI. There is no appreciable difference in the text of
either the federal or state constitutions except that
under our federal constitution the right to act for oneself
is implicit whereas in our state constitution that right
is express. Neither text expressly confers the right in
a defendant to require the court to substitute one court
appointed counsel for another. As a corollary to the
defendant’s assertion of a greater right to such substitu-
tion under our state constitution, he contends that
where his request to substitute counsel was made five
months before his trial began, and because he is illiter-
ate and speaks English with a Jamaican accent which
prevented him from making his case for substitution
clearly, that it should not be left to the trial court’s
discretion to grant or deny his motion to replace court
appointed counsel.
Claims under the state constitution are reviewed
under a matrix that our Supreme Court set out in the
case of State v. Geisler, supra, 222 Conn. 672. It held
that ‘‘[i]n order to construe the contours of our state
constitution and reach reasoned and principled results,
the following tools of analysis should be considered to
the extent applicable: (1) the textual approach . . . (2)
holdings and dicta of [our Supreme Court], and the
Appellate Court . . . (3) federal precedent . . . (4)
sister state decisions . . . (5) the historical approach,
including the historical constitutional setting and the
debates of the framers . . . and (6) economic/socio-
logical considerations.’’ (Citations omitted; emphasis
omitted.) Id., 684–85. Geisler, however, points out that
these factors are only to be considered ‘‘to the extent
applicable.’’ Id., 685. The state urges us to decline review
of the defendant’s greater protection claim because he
‘‘has failed to fully and properly analyze it’’ in his brief,
handicapping the state’s response. However, the defen-
dant is seeking to plow new ground where there are
limited case precedents that have previously turned
over that earth, and it is not clear how any historical
or economic/sociological precedents would be helpful
in interpreting our state’s constitutional right to coun-
sel, so that not all of the Geisler factors are pertinent.
Id. We therefore review the claim.
Essentially, the defendant makes six claims which
we will address in series. He first argues that the trial
court wrongly applied an abuse of discretion standard
in its decision to deny him new counsel. We disagree.
Whether to substitute one court appointed counsel for
another necessarily involves discretion and judgment
on the part of the trial judge. See State v. Williams,
supra, 102 Conn. App. 205. On appeal, our role is to
determine whether there has been any abuse of that
discretion in denying that request. See State v. Turner,
133 Conn. App. 812, 819, 37 A.3d 183, cert. denied, 304
Conn. 929, 42 A.3d 390 (2012).
The defendant next argues the fact that his request
to substitute was made five months before the actual
trial began should militate to require the appointment
of new counsel because the trial did not begin until
months later. We are not persuaded. This argument
ignores the undisputed fact that the case had been
placed on the ready trial list. As such, it was subject
to being called in to court to commence at any time
when those cases before it had concluded or had been
continued for some good reason. That process can
accelerate if older cases are dismissed, nolled, resolved
by plea, tried more quickly than anticipated, or contin-
ued to a later date because of unavailability of counsel
or witnesses. Therefore, at the time that the court made
its decision not to appoint new counsel it could not be
known that the case would not commence earlier than
the five months that actually did elapse, and courts
have some obligation to ensure that criminal charges
are disposed of in a timely manner. The defendant’s
point seems to be that because the trial did not com-
mence immediately after his motion, there would not
be any attendant undue delay in the commencement of
trial had it been granted. The simple answer to this is
that at the time the court was deciding the issue,
because the defendant’s case could be and might be
called in at any time, delay was possible if a new counsel
were appointed and required to duplicate the prepara-
tion Butler had already made, and the court in its exer-
cise of discretion could weigh that.
The defendant also claims that there was a break-
down in communication between the defendant and
Butler. The simple answer to this contention is that the
court did not find such a breakdown and, in fact, noted
on the record during the taking of evidence that such
communication did exist.
The defendant also alleges that there was a break-
down in communication because of a language barrier.
The record before us belies this contention. The record
reveals that the defendant is of Jamaican background.
During the hearing, the defendant advised the court
that he earlier had requested that Butler move to dismiss
himself. At that juncture the court understandably mis-
interpreted this phrase as the defendant’s suggestion
that he wanted his counsel to move to dismiss the case
when in reality what the defendant really wanted,
despite his use of ambiguous terminology, was for But-
ler to move to withdraw as his counsel. This was soon
cleared up and, in fact, the court held a hearing on
whether new court appointed counsel should be substi-
tuted. During the trial, the court noted that the defen-
dant and his counsel were conferring as witnesses were
examined and Butler never indicated that he had any
difficulty understanding the defendant. At one point,
the prosecuting attorney indicated that he could not
understand the defendant who speaks English with the
accent of his native country, Jamaica. The court ordered
an interpreter for the prosecutor, however, the court
noted that it had no difficulty understanding the defen-
dant. We reject this claim.
Finally, the defendant claims that Judge White did
not fully understand the depth of mistrust the defendant
showed to his attorney. Although Judge White did not
grant the defendant’s request to substitute new court
appointed counsel, it is clear that he gave no credit to
the defendant’s claims and concluded that the defen-
dant had not shown the good cause and substantial
reason our rules of practice require before one court
appointed counsel must be substituted for another.
In reviewing the Geisler standards, the textual analy-
sis does not support the defendant’s claims. State v.
Geisler, supra, 222 Conn. 685. There is no appreciable
difference in the expression of the right to counsel in
either constitution as it related to the right to counsel.
Neither the federal, nor the state constitution’s text
expressly deal with an absolute right to demand substi-
tution of one court appointed counsel for another.
We next look to holdings and dicta of our Supreme
Court and of the Appellate Court.1 We find no case from
our Supreme or Appellate Court in which the issue was
distinctly raised. State v. Jordan, 305 Conn. 1, 12–23,
44 A.3d 794 (2012), dealt with a defendant’s desire to
exercise his right to act on his own behalf and waive
counsel, but nonetheless has instructive dicta. In analyz-
ing a federal sixth amendment claim, which language
is similar to our state’s constitution, Justice Palmer in a
concurring opinion in Jordan opined that ‘‘[a]s a general
matter, a criminal defendant has a right to represent
himself for any reason, and he may do so even if the
attorney representing him at the time has performed
diligently and effectively. See, e.g., State v. Flanagan,
293 Conn. 406, 431, 978 A.2d 64 (2009) ([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
. . .). By contrast, an indigent defendant for whom
counsel has been appointed is not entitled to the
appointment of new counsel unless he can demonstrate
good cause why the attorney originally appointed to
represent him should be dismissed.’’ (Emphasis in origi-
nal; internal quotation marks omitted.) State v. Jordan,
supra, 35 (Palmer, J., concurring). This dicta is persua-
sive and consistent with Practice Book § 3-10. We have
already reviewed federal precedent in connection with
the defendant’s sixth amendment claim, and Chief Jus-
tice Rehnquist’s opinion in Wheat makes it clear that
our federal constitution does not grant a right to be
represented by a court appointed counsel whom he
prefers. Wheat v. United States, supra, 486 U.S. 158–59.
Neither the defendant nor the state point us to any
decisions from sister states having similar provisions
to article first, § 8, of our state constitution that might
inform our analysis. The defendant points to a long
history in our state of appointing counsel for the indi-
gent. That record, however, does not warrant requiring
a court to appoint new counsel for an indigent defen-
dant who is already represented by effective counsel.
It is not clear how historical, economic, or sociologi-
cal concerns could assist this court in reviewing this
claim. Nor does the defendant provide us with any his-
torical, economic, or sociological analysis supporting
his claim that under our state constitution he had an
absolute right to demand the replacement of his court
appointed counsel.
Accordingly, we conclude that the court did not abuse
its discretion in denying the defendant’s motion to sub-
stitute new court appointed counsel.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Citing to holdings and dicta of this court and our Supreme Court is
expressly permitted by the second prong of State v. Geisler, supra, 222
Conn. 684–86. State v. Buie, 129 Conn. App. 777, 789, 21 A.3d 550 (2011),
aff’d, 312 Conn. 574, 94 A.3d 608 (2014), raised the question of whether a
warrantless search based on the consent of a third party under the apparent
authority doctrine, although permissible under the fourth amendment to
the United States constitution, was nonetheless barred under article first,
§ 7, of the Connecticut constitution. This court looked to related Connecticut
precedent that cited federal constitutional law to interpret our state constitu-
tional requirements. Id. This court specifically cited to State v. Vasquez, 87
Conn. App. 792, 867 A.2d 15, cert. denied, 273 Conn. 934, 875 A.2d 544
(2005), a fourth amendment case deciding the warrant requirement under the
United States constitution. State v. Buie, supra, 798–99. Buie was affirmed by
our Supreme Court, which referred to this court’s opinion as ‘‘well reasoned.’’
State v. Buie, 312 Conn. 574, 583, 94 A.3d 608 (2014).