State v. Corver ( 2018 )

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STATE OF CONNECTICUT v. JOHN CORVER
(AC 40239)
Prescott, Elgo and Bear, Js.
Syllabus
Convicted of the crimes of attempt to commit murder, assault in the first
degree and kidnapping in the first degree, and of being a persistent
dangerous felony offender, the defendant appealed. He claimed that the
trial court improperly denied his request to discharge his counsel on
the day before jury selection was to begin, and that he did not knowingly,
intelligently and voluntarily waive his right to a jury trial. Held:
1. The trial court did not abuse its discretion in denying the defendant’s
request to discharge his counsel, that court having reasonably deter-
mined that the defendant did not demonstrate any substantial reason
or exceptional circumstances that warranted the discharge of his counsel
on the eve of jury selection; no issue or complaint had been raised with
respect to counsel’s representation of or relationship with the defendant
prior to a hearing held the day before the commencement of jury selec-
tion, as they had appeared before the court on several previous occasions
over many months, including the week preceding the request to dis-
charge, the transcripts of those court proceedings reflected cooperation
and ample communication between the defendant and his counsel, and
the trial court, having been in a superior position to observe the interac-
tions between them, reasonably could have concluded that the request
to discharge filed on the eve of trial was an attempt by the defendant
to forestall his decision on whether to elect a court trial, and, notwith-
standing the defendant’s claim of tension with his counsel because of the
defendant’s limited resources, a complete breakdown in communication
between them had not transpired, as the defendant did not request
the appointment of a public defender but continued with his privately
retained counsel throughout the court trial.
2. The defendant could not prevail on his unpreserved claim that he did not
knowingly, intelligently and voluntarily waive his right to a jury trial
due to a breakdown in communication with his counsel and the trial
court’s refusal to grant him a continuance to consider whether to elect
a court trial: the totality of the circumstances demonstrated that a
complete breakdown in communication did not occur, and that the
defendant’s waiver of his right to a jury trial was knowing, intelligent
and voluntary, as he and his counsel communicated in an effective
manner throughout the proceeding in which the defendant elected a
court trial, and there was little merit to the defendant’s contention that
his waiver was not the product of a free and meaningful choice due to
the denial of the continuance, as the court went to great lengths to
communicate to him that even if he began selecting a jury, he still could
elect to waive a jury trial and proceed with a court trial; moreover, the
defendant was represented by counsel when the court canvassed him
twice on whether he wanted to waive a jury trial, the court having
terminated the first canvass when he equivocated and informed him
that it would not accept a waiver unless it was knowing, intelligent, and
voluntary, and the defendant’s statements during the second canvass
having indicated that he understood the court’s questions and not having
revealed hesitation or involuntariness.
Argued January 30—officially released June 12, 2018
Procedural History
Two part substitute information charging the defen-
dant, in the first part, with four counts of the crime of
attempt to commit murder, two counts of the crime of
assault in the first degree and the crime of kidnapping
in the first degree, and, in the second part, with being
a persistent dangerous felony offender, brought to the
Superior Court in the judicial district of Tolland, where
the, court, Oliver, J., denied the defendant’s motion
to discharge counsel; thereafter, the first part of the
information was tried to the court, Graham, J.; finding
of guilty of three counts of attempt to commit murder,
two counts of assault in the first degree and kidnapping
in the first degree; subsequently, the defendant was
presented to the court, Oliver, J., on a conditional plea
of nolo contendere to the charge of being a persistent
dangerous felony offender; thereafter, the court, Gra-
ham, J., rendered judgment of guilty in accordance
with the finding and plea, from which the defendant
appealed. Affirmed.
Joseph G. Bruckmann, public defender, for the appel-
lant (defendant).
Harry Weller, senior assistant state’s attorney, with
whom, on the brief, were Matthew C. Gedansky, state’s
attorney, and Merav Knafo, certified legal intern, for
the appellee (state).
Opinion
ELGO, J The defendant, John Corver, appeals from
the judgment of conviction, rendered after a court trial,
of three counts of attempt to commit murder in violation
of General Statutes §§ 53a-49 (a) (2) and 53a-54a, two
counts of assault in the first degree in violation of Gen-
eral Statutes § 53a-59 (a) (1), and one count of kidnap-
ping in the first degree in violation of General Statutes
§ 53a-92 (a) (2) (A). On appeal, the defendant claims
that (1) the trial court abused its discretion in denying
a request to discharge his legal counsel and (2) his
conviction must be reversed because he did not know-
ingly, intelligently, and voluntarily waive his right to a
jury trial. We affirm the judgment of the trial court.
On the basis of the evidence adduced at trial, the
court reasonably could have found the following facts.1
In April, 2014, the defendant’s wife, K,2 traveled to Cali-
fornia to visit her mother and attend a dog show. While
in California, K informed the defendant that she wanted
to end their marriage. When the defendant picked her
up at Bradley International Airport in Windsor Locks
on the evening of April 23, 2014, he was very aggravated.
Once inside her vehicle, the defendant begged her not
to leave him. When K indicated that their marriage was
over, the defendant, who was operating the vehicle,
grew even more agitated. Concerned that the ‘‘situation
was getting out of control,’’ K attempted to call a friend.
In response, the defendant grabbed her cell phone and
tossed it out the window. The defendant then retrieved
a knife from the driver’s side door and began stabbing
K on the left side of her body. While doing so, the
defendant repeatedly told K that he loved her and did
not want to hurt her, but that he was going to kill her
for ruining his life.
K, who was bleeding from her injuries, asked the
defendant to take her to a hospital or to let her out of
the vehicle. The defendant refused to do so. Instead,
he took her to a secluded area of the Nathan Hale
Homestead (homestead) in Coventry, where he parked
and exited the vehicle. He then opened K’s passenger
side door and again stabbed her multiple times. As he
did so, the defendant continuously told K that her loved
her, but was going to kill her.
The defendant then returned to the driver’s side of
the vehicle and left the homestead. As he drove around
Coventry, K ‘‘was not doing well’’ and felt ‘‘[v]ery weak.’’
The defendant ultimately returned to the same secluded
area of the homestead and parked the vehicle. The
defendant then stuffed a rag inside the gas tank of the
vehicle and attempted to set it on fire. When those
efforts proved unsuccessful, the defendant stabbed
himself in the stomach and then tried to strangle him-
self, but to no avail. He then called a friend, Mike
Theirer, and told him that he had stabbed K and that
‘‘[t]his is the end.’’3 Theirer then contacted the police
and informed them that the defendant had just told him
that he had stabbed his wife. During that phone call, a
recording of which was admitted into evidence and
played at trial, Theirer stated that he heard K ‘‘screaming
in the background’’ during his conversation with the
defendant.4
The defendant once again drove away from the home-
stead. He handed the knife to K and asked her to stab
him, telling her that they ‘‘both were going to die . . . .’’
K took the knife and dropped it out of the vehicle. At
that point, the defendant accelerated and said, ‘‘Here
we go, baby. We’re both going to die now . . . .’’ The
defendant then drove the vehicle into a large tree.
When a passerby spotted the vehicle against the tree,
she stopped her vehicle and immediately called 911.
Melinda Hegener, an emergency medical technician and
the assistant chief of the Andover Volunteer Fire
Department, first responded to the scene. Hegener testi-
fied at trial that K was ‘‘very pale’’ and ‘‘covered in
blood . . . .’’ Hegener at that time believed that if K
‘‘didn’t get medical attention soon . . . she would
probably [pass] out and die.’’ K was transported by
helicopter to Hartford Hospital, where she remained
for approximately two weeks while undergoing multi-
ple surgeries.
The defendant thereafter was arrested and charged,
by substitute information, with four counts of attempt
to commit murder, two counts of assault in the first
degree, and one count of kidnapping in the first degree.
A court trial was held in November, 2015, at the conclu-
sion of which the court, Graham, J., acquitted the
defendant on one count of attempt to commit murder
and found him guilty on all other counts.5 The court
sentenced the defendant to a total effective term of
thirty-eight years incarceration, and this appeal
followed.
I
The defendant first claims that the court abused its
discretion in denying a request to discharge his legal
counsel, Attorney Ryan E. Bausch, due to a breakdown
in communication that was made on the eve of jury
selection. We disagree.
The following additional facts are relevant to the
defendant’s claim. Although a public defender initially
was appointed to represent the defendant due to his
failure to post bond, Bausch filed an appearance as his
privately retained attorney on July 18, 2014. The case
was continued multiple times while the defendant
reviewed discovery and discussed a possible plea deal
with the state. On May 8, 2015, the state advised the
court, Oliver, J., that although it had been discussing
a plea offer with the defendant for ‘‘a number of
months,’’ it did not believe that those discussions were
‘‘going to be fruitful.’’ Accordingly, the state suggested
that the case should be moved to the jury trial list. In
response, Bausch requested a judicial pretrial confer-
ence and indicated that the defendant ‘‘wants to speak
with me before [it] actually occurs.’’ The court granted
that request, and a pretrial was held on June 5, 2015.
When the parties appeared before the court, Bright,
J., on July 31, 2015, Bausch began his remarks by stating
that he had ‘‘talked to [the defendant] numerous times
since the [pretrial conference] regarding the [plea] offer
. . . .’’ After acknowledging that ‘‘today is the accept-
or-reject date,’’ Bausch requested a further continuance
to permit him to review with the defendant additional
discovery regarding certain telephone records. In
response, the state’s attorney reminded the court that
almost two months had passed since the pretrial confer-
ence and opined that the telephonic evidence was ‘‘an
inconsequential matter’’ and ‘‘an excuse to get another
continuance.’’ The court nevertheless granted a contin-
uance until August 14, 2015, at which time the court
cautioned the defendant that he was ‘‘either going to
take the offer, or it’s going to go to trial.’’
At the August 14, 2015 hearing, Bausch informed the
court, Bright, J., that he had discussed the plea offer
with the defendant, stating that ‘‘we went over every-
thing,’’ and communicated the defendant’s desire to
reject that offer and proceed to trial. The court can-
vassed the defendant on that decision. During that can-
vass, the defendant confirmed that he had discussed
the matter with Bausch, and was aware of both the
potential maximum sentence in the case and the state’s
intent to add additional charges that would increase
the maximum possible sentence. When asked if he had
had sufficient time to talk with Bausch about ‘‘all of your
options,’’ the defendant replied, ‘‘About the existing
charges. I don’t know about the future charges.’’ When
Bausch responded, ‘‘I went over,’’ the transcript then
indicates that a discussion was held off the record. The
court thereafter placed the matter on the firm trial list
and informed the parties that a trial would commence
in either October or November, 2015. As a final matter,
Bausch asked the state to provide another copy of the
list of potential additional charges, stating that he ‘‘had
some trouble reading’’ the copy that the state pre-
viously provided.
The defendant next appeared in court on Friday,
October 23, 2015, at which time the state filed a substi-
tute information that contained eight counts, including
a charge of kidnapping in the first degree. At the outset
of that proceeding, the state’s attorney indicated that
the parties had met with Hon. James T. Graham, who
was scheduled to preside over the defendant’s upcom-
ing trial, earlier that day, and that Judge Graham had
‘‘indicated to counsel that . . . the defendant has until
Monday to decide whether to elect a court trial or a
jury trial.’’6 In response, Bausch submitted certain docu-
ments, including a psychological evaluation of the
defendant, to the court. Bausch asked the court, Oliver,
J., to review those documents and decide whether an
additional pretrial conference was warranted. In
response, the state indicated that it was ready to pro-
ceed, and reminded the court that a pretrial conference
was held months earlier and that this new report was
provided ‘‘at, literally, the eleventh hour here, right
before a trial . . . .’’ The court nonetheless agreed to
review the report and determine whether a further pre-
trial conference was appropriate.
At the state’s request, the court then canvassed the
defendant on the part B information that recently was
filed, which charged him with being a persistent danger-
ous felony offender. See footnote 5 of this opinion.
During that canvass, the defendant confirmed that he
understood that he was charged, under the substitute
information, with four counts of attempt to commit
murder, as well as with assault and kidnapping charges.
The court also asked the defendant if he had any ques-
tions for Bausch about ‘‘the new charges’’ contained in
the substitute information; the defendant replied,
‘‘[n]o.’’ The court then continued the matter until Mon-
day, October 26, 2015, ‘‘for a canvass on [the defen-
dant’s] decision to have his trial before either a jury or
[a] court trial.’’
When the parties appeared on October 26, 2015,
Bausch immediately informed Judge Oliver that the
defendant wanted to discharge him as legal counsel.
The defendant then told the court that he had fired
Bausch. Before addressing that issue, the court stated
that it had reviewed the materials furnished by Bausch
on Friday and had concluded that an additional pretrial
conference was not warranted.
The court then asked the state’s attorney if he had
anything to say. The state’s attorney responded that ‘‘it
seems awfully suspicious . . . that on the eve of trial
[the defendant is] attempting to do this’’ and suggested
that the request to discharge was a dilatory tactic. For
that reason, the state’s attorney opined that the court
‘‘should not let [Bausch] out of this case.’’ In response,
the court noted that, barring the defendant’s waiver of
his right to a jury trial, jury selection was scheduled to
begin the next day.
Bausch then made an oral motion to withdraw from
the case due to a breakdown in communication with the
defendant, stating that the defendant had ‘‘no interest
in assisting me or communicating with me’’ and opining
that their communications were ‘‘in complete disarray.’’
The court then asked the defendant to provide the basis
for his request that Bausch be discharged. The defen-
dant stated that ‘‘we’ve been having issues with how
to approach this case,’’ as monetary issues had arisen
due to the defendant’s limited resources, which created
‘‘tension’’ between the two. As the defendant stated, he
did not have ‘‘any more money to give him and we are
down to the last minute. . . . [T]here’s no money for
investigators, there’s no money for—the mental health
exam you got was done last minute . . . .’’ At no time
did the defendant express either a desire to represent
himself or to have new counsel appointed. Bausch then
clarified, with respect to those monetary issues, that
‘‘[i]t wasn’t about me being paid money. What [the
defendant is] referring to is about money for investiga-
tors, mental health [examinations] . . . .’’
The court then observed that the principal basis for
the request to discharge concerned ‘‘money and the
things that [it] buys in relation to a criminal defense,’’
and noted that a defendant is not guaranteed, ‘‘whether
[represented by private counsel] or a public defender,
a bottomless pit of money with which to launch an
investigation and put on a defense.’’ With respect to
the defendant’s purported disinterest in cooperating
with Bausch, the court stated, ‘‘That is his option. I
haven’t heard anything that says he is unable to.
Whether [the defendant] chooses to do that is up to
him in the face of a criminal prosecution . . . .’’ The
court then addressed the defendant, stating: ‘‘I have let
everyone say everything they wanted to say in terms
of a basis for granting the oral motion to dismiss, and
I’ve asked anything else, anything else, anything else,
and what I have not heard is an actual basis to remove
counsel and either have you represent yourself, which
you certainly could, or appoint new counsel, or give
you time to retain separate counsel.’’ (Emphasis
added.) The court informed the defendant that ‘‘[i]t’s
always your option if you want to hire another attorney
and have that attorney file an appearance in lieu of
[Bausch], and then ask for a continuance . . . and have
that request granted or not; but as to a basis for remov-
ing [Bausch in light of the state’s] suspicions about the
basis being to delay, there’s no basis to remove counsel,
so that request is denied.’’ The court further remarked
that ‘‘if anyone . . . listens to a recording of [the] Fri-
day [October 23, 2015 hearing] or reads a transcript,
no one’s going to see any clue that there was any discord
between the two of you . . . .’’
The court then reminded the defendant that, unless
he elected to proceed with a court trial, jury selection
would begin the next day, October 27, 2015. At that
point, the defendant stated that Bausch had told him
he would not be calling any witnesses for him due to
a lack of funds. In response, the court stated: ‘‘I’m not
hearing anything further in support of your request to
remove your attorney, and the trial strategy between
the two of you is the trial strategy between the two of
you. I can tell you, though . . . in cases of this nature,
it is not unusual not to call defense witnesses [and] to
[leave] the state to their proof . . . .’’ Whether to put
on witnesses as part of a criminal defense, the court
explained, was ‘‘a trial strategy decision . . . .’’ The
defendant then complained that, in various discussions
with Bausch that occurred on ‘‘several different times,’’
Bausch had not provided ‘‘the same consistent answer’’
as to whether he was planning to call witnesses on the
defendant’s behalf. In response, the court explained
that ‘‘an attorney who cannot adapt cannot effectively
represent their client, so things do change.’’ Discussion
then followed on the question of whether the defendant
wanted to waive his right to a jury trial, and the defen-
dant ultimately decided to proceed with a court trial.
On appeal, the defendant claims that the court
improperly denied the motion to discharge Bausch as
counsel. The parties submit, and we agree, that appel-
late review of that determination is governed by the
abuse of discretion standard. See State v. Gonzalez, 205
Conn. 673, 683, 535 A.2d 345 (1987) (‘‘we conclude that
the trial court did not abuse its discretion in not permit-
ting the defendant to discharge his attorney’’).7 Pursuant
to that standard, we make every reasonable presump-
tion in favor of the correctness of the trial court’s ruling.
See State v. Williams, 317 Conn. 691, 710 n.17, 119 A.3d
1194 (2015). In the present case, both the defendant
and Bausch requested, at the outset of the October 26,
2015 hearing, that Bausch be relieved of his representa-
tion in the present case. As this court has observed,
‘‘[t]he standard of reviewing both a motion by a defen-
dant to discharge counsel and a motion by counsel to
withdraw is the same. . . . It is within the trial court’s
discretion to determine whether a factual basis exists
for appointing new counsel and, absent a factual record
revealing an abuse of that discretion, the court’s refusal
to appoint new counsel is not improper. . . . More-
over, appellate tribunals look with a jaundiced eye at
complaints regarding adequacy of counsel made on the
eve of trial . . . . Such a request must be supported
by a substantial reason and, [i]n order to work a delay
by a last minute discharge of counsel there must exist
exceptional circumstances.’’ (Citations omitted; inter-
nal quotation marks omitted.) State v. Fisher, 57 Conn.
App. 371, 382, 748 A.2d 377, cert. denied, 253 Conn. 914,
754 A.2d 163 (2000).
Applying that standard to the record before us per-
suades us that the court did not abuse its discretion.
We are particularly mindful of the context in which the
motion to discharge counsel arose. In the previous year,
numerous continuances had been granted and multiple
pretrial conferences were conducted at the defendant’s
request. When the defendant appeared before Judge
Oliver on Friday, October 23, 2015, he knew that jury
selection was scheduled to begin the following week,
and at that time requested a further pretrial conference,
which was denied. The defendant appeared before
Judge Oliver again on Monday, October 26, 2015, the
day before the commencement of jury selection, at
which time he requested Bausch’s discharge. Prior to
that hearing, neither the defendant nor Bausch had
raised any issue or complaint with respect to Bausch’s
legal representation or their relationship.
Significantly, the defendant and Bausch had appeared
before Judge Oliver on several occasions over the
course of many months, and as recently as the preced-
ing Friday, October 23, 2015. The judge, therefore, was
in a superior position to evaluate whether a complete
breakdown in communication between the two had
transpired, as Bausch suggested. During those proceed-
ings, Judge Oliver had the opportunity to observe the
interactions of the defendant and Bausch. In light of that
perspective, it is telling that Judge Oliver, in denying
the request to discharge, emphasized that ‘‘if anyone
. . . listens to a recording of [the] Friday [October 23,
2015 hearing] or reads a transcript, no one’s going to
see any clue that there was any discord between the
two of you . . . .’’
The transcripts before us also reflect a good deal of
cooperation between the defendant and Bausch prior
to the request to discharge. When Bausch requested a
pretrial conference when he appeared before Judge
Oliver on May 8, 2015, he made clear that the defendant
‘‘wants to speak with me before [it] actually occurs.’’
At the July 31, 2015 hearing, Bausch indicated that he
had ‘‘talked to [the defendant] numerous times since
the [June 5, 2015] pretrial’’ conference and then
requested an additional continuance ‘‘to go over [a] last
piece of evidence with [the defendant].’’ At the August
14, 2015 hearing, Bausch informed the court that he
had discussed the plea offer with the defendant, stating
that ‘‘we went over everything . . . .’’ When the defen-
dant then rejected the state’s plea offer, he confirmed
during the court’s canvass of him that he had discussed
the matter with Bausch. The defendant further indi-
cated that, on the basis of those discussions, he under-
stood both his current exposure as well as the
possibility that the state would file additional charges
against him. The defendant at that time also acknowl-
edged that he had been provided sufficient time to dis-
cuss with Bausch ‘‘all of [his] options’’ regarding the
existing charges. Likewise, when Judge Oliver can-
vassed the defendant on the part B information on Octo-
ber 23, 2015, the defendant indicated that he understood
the charges filed against him in the substitute informa-
tion, as well as in the part B information. The defendant
at that time also confirmed to the court that he had no
remaining questions for Bausch about ‘‘the new
charges’’ or the part B information.
Given that context, as well as Judge Oliver’s firsthand
observations of the defendant and Bausch, the court
reasonably could conclude that a complete breakdown
in communication between the two had not transpired,
and that the request to discharge filed on the eve of jury
selection was an attempt to forestall the defendant’s
decision on whether to elect a court trial. To paraphrase
State v. Gethers, 193 Conn. 526, 545, 480 A.2d 435 (1984),
the record indicates that there was ample communica-
tion between the defendant and Bausch until the day
the defendant requested his discharge. The court, in
ruling on the request to discharge, properly could rely
on its observations of the defendant and Bausch prior
to that request. See State v. Drakeford, 202 Conn. 75,
84, 519 A.2d 1194 (1987) (expressly considering ‘‘the
history of their relationship, the prior activity of the
defendant’s attorney on his behalf and the timing of the
request’’ in concluding that trial court did not abuse its
discretion in denying request to discharge); State v.
Rosado, 52 Conn. App. 408, 430, 726 A.2d 1177 (1999)
(noting that trial court ‘‘properly determined that there
was not a complete breakdown of communication
between the defendant and his counsel’’ in light of its
firsthand observation of their interactions).
Although the defendant informed the court that the
breakdown in communication with his counsel was
attributable to ‘‘great tension’’ due to the defendant’s
limited resources, the court properly advised the defen-
dant that the right to counsel does not entail the right
to unlimited resources, even when represented by a
public defender. See, e.g., Smith v. Collins, 977 F.2d
951, 960 (5th Cir. 1992) (‘‘[t]he defense of a criminal
case [does not] contemplate the employment of wholly
unlimited time and resources’’), cert. denied, 510 U.S.
829, 114 S. Ct. 97, 126 L. Ed. 2d 64 (1993); United States
v. Williams, Docket No. 12-CR-0463 (JCM-VCF), 2013
WL 5954490, *4 (D. Nev. November 6, 2013) (‘‘no crimi-
nal defendant has unlimited resources’’). Furthermore,
the record reveals that at no time during the October
26, 2015 hearing or thereafter did the defendant request
the appointment of a public defender. Rather, he contin-
ued with his privately retained legal counsel throughout
the six day court trial, during which Bausch called four
witnesses, in addition to the defendant, as part of his
defense.
The defendant also argues that a colloquy that
occurred subsequent to the court’s ruling on his request
to discharge demonstrates a breakdown in communica-
tion with his legal counsel. When the defendant later
that day expressed his desire for a court trial, the court
canvassed him on that decision. During that canvass,
the court reviewed, inter alia, the pending charges
alleged in the substitute information. When the court
referenced the four attempt to commit murder counts,
the defendant interjected, ‘‘How is it four attempted
murders?’’ After the state’s attorney provided an over-
view of the discrete acts that formed the basis for those
charges, the defendant replied, that he would ‘‘like to
talk to my attorney’’ because he still did not understand
why those acts gave rise to four distinct charges of
attempt to commit murder. The court then provided
the defendant the opportunity to discuss the matter
with Bausch. When that discussion concluded, Bausch
informed the court that ‘‘I explained what I had to
explain, Your Honor.’’ The defendant thereafter
expressed no further misapprehension of the four
attempt to commit murder charges.
We disagree with the defendant’s assertion that this
colloquy demonstrates that communications between
him and Bausch had completely broken down. To the
contrary, a fair reading of that transcript indicates that
Bausch and the defendant at that time continued to
communicate in an effective manner. Moreover, we
note that, when the defendant appeared before Judge
Oliver the following day, he apologized to the court,
stating, ‘‘I’m sorry about the confusion yesterday.’’
In light of the foregoing, we conclude that the trial
court reasonably determined that the defendant had
not demonstrated that any substantial reason or truly
exceptional circumstances warranted the discharge of
his legal counsel on the eve of jury selection. The court,
therefore, did not abuse its discretion in denying the
request to discharge made by the defendant, and the
related motion to withdraw made by Bausch, on Octo-
ber 26, 2015.
II
The defendant next contends that his conviction must
be reversed because he did not knowingly, intelligently,
and voluntarily waive his right to a jury trial under the
sixth amendment8 to the United States constitution.9
The defendant did not preserve this claim at trial and
now seeks review pursuant to 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).10 We review the defendant’s claim because the
record is adequate for review and the claim is of consti-
tutional magnitude. See State v. Reynolds, 126 Conn.
App. 291, 298, 11 A.3d 198 (2011).
‘‘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.
. . . [Our Supreme Court has] adopted the definition of
a valid waiver of a constitutional right as the intentional
relinquishment or abandonment of a known right. . . .
This strict standard precludes a court from presuming
a waiver of the right to a trial by jury from a silent record.
. . . In determining whether this strict standard has
been met, a court must inquire into the totality of the
circumstances of each case. . . . Our task . . . is to
determine whether the totality of the record furnishes
sufficient assurance of a constitutionally valid waiver
of the right to a jury trial. . . . Our inquiry is dependent
upon the particular facts and circumstances sur-
rounding [each] case, including the background, experi-
ence, and conduct of the accused.’’ (Citation omitted;
internal quotation marks omitted.) State v. Woods, 297
Conn. 569, 583, 4 A.3d 236 (2010). ‘‘[W]hether a defen-
dant has effectively waived his federal constitutional
[right to a jury trial] is ultimately [a] legal question
subject to de novo review, although we defer to the
trial court’s subsidiary factual findings unless they are
clearly erroneous.’’ (Internal quotation marks omitted.)
State v. Rizzo, 303 Conn. 71, 91–92, 31 A.3d 1094 (2011),
cert. denied, 568 U.S. 836, 133 S. Ct. 133, 184 L. Ed. 2d
64 (2012).
When the defendant appeared before the court, Oli-
ver, J., on the eve of jury selection, he sought to dis-
charge his legal counsel. Following the denial of that
request by the court, discussion turned to the defen-
dant’s election of a trial by jury or a court trial. The
court advised the defendant as follows: ‘‘[Y]ou don’t
have to make your [decision right now]—you don’t have
to make an election to a court trial. You will have your
trial by jury. You always can, if you choose to, elect to
waive your right by jury. That’s fine, but as it stands
now you’ve elected . . . to have your trial before a jury
of your peers, and that will start tomorrow, here. That’s
where it stands now. If you want time to talk to Attorney
Bausch I’ll give it to you, but [if] you can’t make that
decision now, [then] [t]hat is fine. You’ll start picking
your jury [tomorrow] morning. That’s the default set-
ting, as well it should be, to have a number of individuals
from the community decide guilt or not guilty beyond
a reasonable doubt. You have to make the decision
whether you’re going to have one judge do it. That’s
fine, too. So, if you want me to begin the canvass, I
will. Otherwise, tomorrow for jury selection. . . . [A]s
it stands now, before Judge Graham you’ll start picking
your jury.’’
At that point, Bausch requested an opportunity to
talk with the defendant ‘‘one last time,’’ which the court
granted. Following a recess, Bausch informed the court
that he had spoken with the defendant and at that time
was prepared to ‘‘let him make his decision’’ before the
court. The defendant then stated, ‘‘[w]e’re doing a bench
trial . . . .’’ After confirming that Bausch had dis-
cussed that decision with the defendant, the court
observed that this decision ‘‘was the purpose of being
in court’’ on the preceding Friday, October 23, 2015.
The court then began its canvass of the defendant by
asking him various questions about his age, occupation,
education, and prior experience before the criminal
courts of this state. When the court asked the defendant
if he understood the charges against him, which
included four counts of attempt to commit murder, the
defendant expressed confusion, stating, ‘‘How is it four
attempted murders?’’ The state’s attorney then provided
an overview of the discrete acts that formed the basis
for those charges, after which the court permitted the
defendant to discuss the matter with his attorney. When
Bausch then informed the court that ‘‘I explained what
I had to explain, Your Honor,’’ the court proceeded to
detail the distinct allegations of the substitute infor-
mation.
After completing its overview of those charges, the
court asked the defendant whether he was electing a
trial by jury or a court trial. The defendant stated in
relevant part: ‘‘I would like some time to decide this.
. . . Everybody wants to do everything in five minutes.
You wait a year and a half, and nobody wants to do
anything, even with discovery or anything else, and now
in five minutes . . . you want to do all this.’’ The court
then advised the defendant that it had no preference
as to how the defendant elected to proceed, as it would
not be presiding over the defendant’s trial. Rather, the
court continued, ‘‘I’m here to . . . make sure you have
a fair and accurate understanding of what’s going to
happen to you and [ensure that you] make that informed
and knowing and voluntary decision whether to have
a jury or court trial.’’ After the court reminded him of
his right to proceed with a jury trial or to elect to waive
that right and proceed with a court trial, the defendant
stated, ‘‘I don’t know,’’ and then indicated that he
‘‘would like to talk to my attorney and have a little bit
of time.’’ The defendant then asked the court, ‘‘[c]an
we at least do the end of the week?’’ In response, the
court stated: ‘‘That’s not happening. . . . Your default
setting . . . is to have a trial by jury. That’s where you
are right now. That jury trial starts tomorrow morning.
If between now and then, or frankly, at any point during
jury selection, you change your mind and elect to have
a trial by court, you can do so, but then that waiver is
gone. You cannot go back and forth. So, it is an
important decision you’re making, to have a trial by a
jury or a court. You start with a jury, and once you
elect a court trial—that’s why I’m asking you all these
questions about your education, your age, whether you
ran your own business, because once you elect to have
a court trial, you have waived your right to go back to
a jury trial. . . . So, there’s nothing wrong with taking
the time to do that, but . . . it is final . . . . [M]ake
no mistake, I’m going to ask you all the questions neces-
sary to make the determination of whether your deci-
sion and waiver of a jury trial is knowing, intelligent
and voluntary. That will happen, and you’ll either have
a jury trial, which is completely fine, or you’ll have a
court trial before Judge Graham.’’ The court then stated:
‘‘I assume you don’t want to make that decision today. Is
that correct, sir?’’ The defendant answered, ‘‘[c]orrect,’’
and the proceeding adjourned.
The defendant again appeared before the court, Oli-
ver, J., the next morning. At that time, the defendant
indicated that he was electing a court trial. Noting that
some of the questions that followed might be ‘‘duplica-
tive of yesterday,’’ the court began its canvass of the
defendant. The court asked the defendant several ques-
tions about his age, education, occupation and prior
experience with the criminal justice system. The court
then confirmed that the defendant had ‘‘discussed [his]
right to a jury trial’’ with Bausch and understood that
a jury ‘‘is composed of a number of members from the
community’’; to each query, the defendant answered,
‘‘[y]es.’’ The defendant also confirmed that he under-
stood that although a jury’s verdict must be unanimous,
the verdict in a court trial is rendered by one person.
The following colloquy then transpired:
‘‘The Court: Now, you’re making this decision after
discussing the benefits or detriments of a jury trial . . .
after discussing those things with Attorney Bausch?
‘‘The Defendant: Correct.
‘‘The Court: And you’re making this decision know-
ingly, voluntarily, and of your own free will?
‘‘The Defendant: Yes.
‘‘The Court: Is anyone forcing, threatening, or promis-
ing you anything to make you elect to waive your right
to a jury trial—
‘‘The Defendant: No.
‘‘The Court: —and to elect a court trial?
‘‘The Defendant: No.
‘‘The Court: Okay. And do you have any questions
for me about this decision?
‘‘The Defendant: I would just like to apologize to Your
Honor and to the jury for being here. I’m sorry about
the confusion yesterday.
‘‘The Court: Mr. Corver, as I said yesterday, this is
America. The constitution guarantees you that right.
You have some serious charges. It’s not an easy decision
to make, and there’s nothing wrong with taking the
time necessary to make the decision voluntarily and
be informed and speak with your attorney about it,
all right?
‘‘The Defendant: Thank you.
‘‘The Court: So, do you have any questions for me
about this decision?
‘‘The Defendant: No.
‘‘The Court: Do you have any questions for Attorney
Bausch about this decision?
‘‘The Defendant: No.’’
The court confirmed that the defendant understood
that ‘‘[o]nce I accept your waiver of your right to [a]
jury trial, you cannot change your mind,’’ to which the
defendant replied, ‘‘[y]es.’’ The court then entered a
finding that the defendant ‘‘has been fully and ade-
quately apprised of the consequences of his election to
waive his right to [a] jury trial and elect a court trial’’
and ‘‘has done so, and the court accepts the waiver.’’
On appeal, the defendant concedes that he made an
affirmative indication of his waiver of his right to a jury
trial during that canvass. See State v. Gore, 288 Conn.
770, 783, 955 A.2d 1 (2008) (‘‘because the right to a jury
trial is uniquely personal to the defendant, an affirma-
tive indication of the defendant’s personal waiver of
this right must appear on the record’’). He nonetheless
claims that his waiver was not made in a knowing,
intelligent, and voluntary manner due to (1) the alleged
breakdown in communication with his legal counsel
and (2) the court’s refusal to grant a continuance in
response to his request for more time to consider his
decision. We disagree.
As detailed in part I of this opinion, the record sub-
stantiates the court’s determination that a complete
breakdown in communication between the defendant
and Bausch did not occur. To the contrary, the evidence
demonstrates that Bausch and the defendant continued
to communicate in an effective manner throughout the
October 27, 2015 proceeding. Indeed, when the defen-
dant on October 26, 2015, asked the court for a continu-
ance until ‘‘the end of the week,’’ he expressly indicated
that he ‘‘would like to talk to my attorney and have
a little bit of time’’ before making his election of a
court trial.
Furthermore, there is little merit to the defendant’s
contention that the waiver of his right to a jury trial
was not the product of free and meaningful choice due
to the court’s denial of that request for a continuance.
As the aforementioned colloquies between the court
and the defendant reflect, the court went to great
lengths to communicate to the defendant the fact that,
even if he began selecting a jury, the defendant still
could elect to waive a jury trial at a later date and
proceed with a court trial. The defendant was repre-
sented by counsel when he twice was canvassed on
that decision by the court at the October 26 and October
27, 2015 proceedings. When the defendant equivocated
on his waiver during the October 26 proceeding, the
court terminated its canvass and informed the defen-
dant that it would not accept a waiver of the defendant’s
right to a jury trial unless it was knowing, intelligent,
and voluntary. During the second canvass conducted
the following day, the defendant confirmed that he pre-
viously had discussed his decision with Bausch and had
no remaining questions for Bausch at that time. As our
Supreme Court has noted, ‘‘[t]he fact that the defendant
was represented by counsel and that he conferred with
counsel concerning waiver of his right to a jury trial
supports a conclusion that his waiver was constitution-
ally sound.’’ State v. Woods, supra, 297 Conn. 586.
In addition, the defendant’s statements during the
October 27, 2015 canvass indicate that he understood
the court’s various questions, including whether his
election was the product of undue influence or coer-
cion, and do not reveal any hesitation or involuntariness
on the defendant’s part. See State v. Scott, 158 Conn.
App. 809, 818, 121 A.3d 742 (emphasizing that ‘‘[t]he
record contains no indication of any hesitancy or indeci-
sion on the part of the defendant’’ in waiving right to
jury trial), cert. denied, 319 Conn. 946, 125 A.3d 527(2015). Notably, at the conclusion of that canvass, the
defendant stated that he ‘‘would just like to apologize
to Your Honor and to the jury for being here. I’m sorry
about the confusion yesterday.’’ The defendant also tes-
tified during the October 27, 2015 canvass as to his
familiarity with the criminal justice system, having
pleaded guilty to assault in the first degree years ear-
lier.11 See State v. Moye, 119 Conn. App. 143, 164, 986
A.2d 1134 (‘‘[t]he constitutional stricture that a plea of
guilty must be made knowingly and voluntarily . . .
requires . . . that there be a voluntary waiver during
a plea canvass of the right to a jury trial’’ [internal
quotation marks omitted]), cert. denied, 297 Conn. 907,
995 A.2d 638 (2010); State v. Smith, 100 Conn. App.
313, 324, 917 A.2d 1017 (noting, in considering propriety
of waiver of right to jury trial, defendant’s ‘‘familiarity
with the court system’’ due to criminal history), cert.
denied, 282 Conn. 920, 925 A.2d 1102 (2007).
We therefore conclude that the totality of the circum-
stances demonstrates that the defendant’s waiver of
his right to a jury trial was knowing, intelligent, and
voluntary. Accordingly, he cannot prevail under Gold-
ing’s third prong. See footnote 10 of this opinion.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In rendering its oral decision, the court made specific findings of fact
as to the elements of each charged offense. Our recitation of the relevant
facts includes those express findings, as well as subordinate findings that
the court, as trier of fact, reasonably could have found on the evidence
before it. In this regard, we note that the defendant and the victim, K,
testified at trial and provided conflicting accounts of the events in question.
In rendering its decision, the court, as sole arbiter of credibility; see State
v. Santiago, 245 Conn. 301, 343, 715 A.2d 1 (1998); found K’s testimony
‘‘highly credible’’ and substantiated by the exhibits and testimony of other
witnesses. The court also indicated that it did not find the defendant’s
testimony to be credible, noting that ‘‘[h]is testimony . . . [was] consis-
tently contradicted by the exhibits, by the testimony of witnesses in addition
to [K], and, on occasion, by common sense.’’
2
In accordance with our policy of protecting the privacy interests of the
victims of family violence, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. General Statutes § 54-86e.
3
The defendant made similar remarks in a subsequent phone call to Erin
Diette, a friend of K.
4
In that phone call, Theirer stated in relevant part that ‘‘[t]hey were both
were screaming. She was screaming, help me. He [was] screaming, I just
stabbed her . . . .’’
5
The defendant also was charged, in a part B information, with being a
persistent dangerous felony offender in violation of General Statutes § 53a-
40 (a) (1) (A) on the ground that he previously had been convicted of assault
in the first degree, a felony, and served a sentence of more than one year.
On November 25, 2015, the defendant entered a conditional plea of nolo
contendere to that charge.
6
Jury selection was scheduled to commence on Tuesday, October 27, 2015.
7
At trial, the defendant in Gonzalez made no indication that he wanted
to represent himself or to have new counsel appointed. Rather, like the
defendant in the present case, he simply expressed his desire to have his
counsel discharged. State v. Gonzalez, supra, 205 Conn. 679–81, 682 n.6.
8
The sixth amendment to the United States constitution provides in rele-
vant part: ‘‘In all criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial, by an impartial jury . . . .’’ That right to a trial
by an impartial jury is made applicable to the states through the due process
clause of the fourteenth amendment to the United States constitution. See
Turner v. Murray, 476 U.S. 28, 36 n.9, 106 S. Ct. 1683, 90 L. Ed. 2d 27 (1986).
9
In his appellate brief, the defendant also alleges a violation of his right
to a jury trial under article first, § 19, of the Connecticut constitution. In so
doing, he acknowledges that our Supreme Court, in State v. Marino, 190
Conn. 639, 645–46, 462 A.2d 1021 (1983), overruled in part on other grounds
by State v. Chapman, 229 Conn. 529, 541, 643 A.2d 1213 (1994), rejected
the claim that, because article first, § 19 provides rights above and beyond
those afforded under the federal constitution, a waiver thereof must reflect
that the accused knowingly and voluntarily waived those additional rights.
Furthermore, two decades later in State v. Ouellette, 271 Conn. 740, 757,
859 A.2d 907 (2004), our Supreme Court expressly was asked ‘‘to reconsider
[its] state constitutional holding in Marino’’ and declined to do so.
The defendant in the present case nonetheless argues that Marino and
Ouellette ‘‘should be overturned and the court should hold that because the
trial court failed to advise the defendant of his state constitutional right to
be tried by six jurors . . . he did not intelligently, knowingly and voluntarily
waive that right.’’ (Citation omitted.) It is well established that this court
cannot overrule or reconsider the decisions of our Supreme Court. See State
v. Brown, 73 Conn. App. 751, 756, 809 A.2d 546 (2002) (‘‘Our Supreme Court
is the ultimate arbiter of the law in this state. We, as an intermediate appellate
court, cannot reconsider the decisions of our highest court.’’); State v. Fuller,
56 Conn. App. 592, 609, 744 A.2d 931 (‘‘[i]t is not within our function as an
intermediate appellate court to overrule Supreme Court authority’’), cert.
denied, 252 Conn. 949, 748 A.2d 298, cert. denied, 531 U.S. 911, 121 S. Ct.
262, 148 L. Ed. 2d 190 (2000). Bound by Marino and Ouellette, we decline
to further consider the defendant’s unpreserved state constitutional claim.
10
Under 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.’’ (Emphasis in original; footnote omit-
ted.) State v. Golding, supra, 213 Conn. 239–40.
11
We reiterate that the defendant in the present case also was charged,
in a part B information, with being a persistent dangerous felony offender
due to his prior conviction for assault in the first degree. See footnote 5 of
this opinion.