State v. Killiebrew , 172 Conn. App. 1 ( 2017 )

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STATE OF CONNECTICUT v. ISSIAH KILLIEBREW
(AC 37613)
Keller, Prescott and Pellegrino, Js.
Argued December 1, 2016—officially released April 4, 2017
(Appeal from Superior Court, judicial district of
Hartford, Suarez, J.)
Procedural History
Substitute information charging the defendant with
the crime of arson in the first degree, and information
charging the defendant with violation of probation,
brought to the Superior Court in the judicial district of
Hartford, where the cases were consolidated; there-
after, the first information was tried to the jury before
Suarez, J., verdict of guilty; subsequently, the second
information was tried to the court; judgment of guilty
and judgment revoking the defendant’s probation, from
which the defendant appealed to this court. Affirmed.
Daniel J. Foster, assigned counsel, for the appel-
lant (defendant).
Jennifer F. Miller, deputy assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Anthony Bochicchio, senior assistant
state’s attorney, for the appellee (state).
Opinion
KELLER, J. The defendant, Issiah Killiebrew, appeals
from the judgment of conviction, rendered after a jury
trial, of one count of arson in the first degree in violation
of General Statutes § 53a-111 (a) (1).1 The court further
found the defendant guilty of violating his probation.2
On appeal, the defendant claims that the trial court
erred (1) by not canvassing him concerning his right
to counsel and right to self-representation after he
clearly and unequivocally invoked his right to self-repre-
sentation and (2) if his invocation of his right to self-
representation was not clear and unequivocal, by not
canvassing him concerning whether he wanted to
invoke his right to self-representation. We affirm the
judgment of the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
On April 30, 2013, Tracie Keaton was looking outside
her apartment window in Hartford when she saw the
defendant, who was a friend of her son, sitting on the
porch. Keaton asked the defendant what was wrong,
and the defendant replied, ‘‘[N]one of your business,
mind your business you raw head bitch.’’ Keaton told
the defendant that he could not sit on her porch any-
more. Before leaving, the defendant retorted that he
would ‘‘burn this shit down.’’
Shortly thereafter, the defendant obtained a red plas-
tic container, which contained gasoline, and returned
to Keaton’s apartment building. The defendant poured
the accelerant on the back porch of the apartment build-
ing and lit it on fire. Keaton’s neighbor, Jessica Watts,
saw the defendant pour gasoline on the porch and light
it on fire. After seeing the fire start, Watts called Keaton
on the phone and told her to evacuate the building.
Keaton immediately called the fire department and
began knocking on the doors of the other occupants
to inform them about the fire. Meanwhile, Watts
returned to her residence and told her husband about
the fire. He went to the apartment building and put the
fire out with buckets of water.
On May 10, 2013, a member of the Hartford Police
Department arrested the defendant. The defendant then
provided a written statement to the police, in which he
described his strained relationship with Keaton and
admitted to lighting fire to Keaton’s apartment building,
with the aid of gasoline, after a dispute with Keaton.
The defendant explained that he had been drinking,
smoking marijuana, and using PCP all day and, as a
result, was ‘‘pretty fucked up’’ and not ‘‘thinking
straight.’’ He further stated that ‘‘[w]henever I smoke
[PCP] I lose my mind and have no idea what I am doing.’’
He maintained that he ‘‘didn’t even know the porch was
lit on fire. I wasn’t trying to light the house on fire or
hurt anyone. I was just pissed off at that woman for
trying to call the cops on me. My intention was just to
scare her.’’ The defendant was charged with arson in
the first degree and violation of probation. After his
initial bail hearing, the defendant privately retained
counsel to represent him.
On August 11, 2014, trial commenced. The state pre-
sented the testimony of members of the Hartford Police
Department and Hartford Fire Department. On August
12, 2014, the final day of evidence, the state’s first two
witnesses were the defendant’s probation officer and
Keaton. The third anticipated witness was Watts, but
a brief recess was held to address an issue concerning
her testimony.3 After that recess, the defendant stated
that he wanted ‘‘to say something for the record.’’ The
court informed the defendant that he should speak to
his attorney before addressing the court and ordered
another recess. When the trial resumed, at approxi-
mately 11:15 a.m., defense counsel requested more time
to speak with the defendant, and the court extended
the recess until 2 p.m. After that recess, defense counsel
stated that the defendant was refusing to return to the
courtroom and moved for a continuance so that he
could speak with the defendant further. The court
denied the motion and advised the defendant, by way
of an intercom in lockup, of his trial rights and that it
found that the defendant was waiving those rights by
refusing to return to the courtroom. The court informed
the defendant that the trial would resume and that he
could speak with counsel after the next witness tes-
tified.
Prior to the testimony of the next witness, however,
the defendant returned to the courtroom and, through
counsel, asked to address the court. After advising the
defendant of his rights, the court engaged in the follow-
ing colloquy with the defendant:
‘‘The Court: Now, with respect to what you address
this court, you know, this is not an opportunity for you
to vent, this is an opportunity for you to tell me what
you think your concern is, and then we’re going to
continue with the trial today. Okay, sir?
‘‘The Defendant: I just feel like I’m not getting repre-
sented to my full extent.
‘‘The Court: All right.
‘‘The Defendant: I mean, I don’t—I don’t want him
as my attorney no more. That’s how I feel.
‘‘The Court: Okay. Well, thank you very much for
that, sir. I can understand that you may have feelings
with your lawyer or not, however, we’re in the middle
of the trial. We’ve gone through the trial. This is our
second day of trial. We’ve gone through three—four
days of jury selection. And this court feels that we’ve—
at least I have been trying very hard to make sure that
you have a fair trial and I will continue to make sure
they come up. I will decide those one way or the other.
I can assure you that I’m trying very hard to give you
a fair trial.
‘‘The Defendant: I—excuse me. I definitely do under-
stand that, but it’s just I’m not —I don’t feel com-
fortable—
‘‘The Court: All right.
‘‘The Defendant: —with him as being my lawyer.
‘‘The Court: Okay.
‘‘The Defendant: I just—I’m not—I don’t—I’m not—
I don’t feel like going through with him as my lawyer.
I don’t—I don’t—I’m nervous right now and I—I’m not
nervous about me going to trial because I already had
pick my jurors and I’m already set. I’m just nervous
of they being—I feel like he’s not with me, he’s not on
my side, he’s not doing things he needs to do to repre-
sent me in my—to my best extent.
‘‘The Court: Well, I can assure you that [defense coun-
sel] has actually made some filings to the court all in—
to protect your rights. And I have received those filings,
I have reviewed them, I have considered them and I
will decide on those filings. I don’t know what else you
want him to do. I understand you’re, you know, nervous
about the situation here but we’re in the middle of a
trial, sir. So—
‘‘The Defendant: I know but—
‘‘The Court : —we’re going to continue that.
‘‘The Defendant: —I—like he brings me to trial
without—
‘‘The Court: No. Sir—
‘‘The Defendant: —without—
‘‘The Court: Okay. You know, first, let’s not talk about
that because the state is not through here. We haven’t
heard all of the evidence. And then we’ll hear all of
the evidence, and then we can continue with the trial.
Okay, sir?
‘‘The Defendant: I’m—I’m—I don’t want him as
my lawyer.
‘‘The Court: Okay. Well, sir, look—
‘‘The Defendant: I don’t want him as—
‘‘The Court: —we’re going to continue the trial today.
If you want to join us, you’re welcome to. You have a
right—absolute right to do that. All right? If you’re—
wish not to be here, that’s your choice. I will advise
you against that because this is an important stage of
the proceeding. Do you want to join us or not?
‘‘The Defendant: I don’t understand if I’m not getting
represented to my best extent—
‘‘The Court: Well—
‘‘The Defendant: —why do I have to have him as my
lawyer? I don’t want him as my lawyer.
‘‘The Court: All right. Sir—okay. We’re going to go—
we’re in the middle of the trial. At this point, we’re
going to continue. You have an absolute right to be
represented by an attorney, you have an attorney.
‘‘The Defendant: I don’t have him.
‘‘The Court: You have an attorney. So, sir—
‘‘The Defendant: He got fired. You’re not understand-
ing me.
‘‘The Court: Sir, look—
‘‘The Defendant: This is my life on the line. I don’t—
like I wouldn’t even get me—that wouldn’t have give
me time but—
‘‘The Court: Sir, we’re now going to continue this—
‘‘The Defendant: I don’t have a—
The Court: —case.
‘‘The Defendant: I don’t have a—I don’t have a right
to say who’s my—
‘‘The Court: Well, wait—
‘‘The Defendant: —who’s my—
‘‘The Court: —sir. Wait a minute, sir. [Defense coun-
sel] has made a motion to continue this case, I’ve denied
it. All right? So, we’re going to continue.
‘‘The Defendant: He’s not my lawyer, though. I
fired him.
‘‘The Court: Sir, I’m going to ask that you sit down
and be a part of this process if you wish to be here. If
you want to waive your presence, you need to let me
know. But, we’re going to continue.
‘‘The Defendant: I fired him so I don’t know—I’m
going to try and continue that. If I did fire him, he’s
not my lawyer so—
‘‘The Court: All right.
‘‘The Defendant: —what’s going on with that inter-
com, I don’t got nothing to do with that.
‘‘The Court: Okay. Well, why don’t you sit down, sir.
Why don’t you—we—why don’t we hear the evidence
as it comes in—through—so are you—you’re asking to
be excused from the hearing?
‘‘The Defendant: I don’t want him as my lawyer.’’
(Emphasis added.)
The court admonished the defendant that they were
in the middle of trial and that they were going to con-
tinue with the evidence. The defendant then insisted
on leaving the courtroom and refused to participate in
the proceedings. Defense counsel requested, and the
court granted, another continuance so that he could
speak with the defendant. When the defendant contin-
ued to refuse to return to the courtroom, defense coun-
sel moved for ‘‘a continuance so [the defendant] can
get a new lawyer to finish the trial.’’ The state objected,
and the court denied defense counsel’s motion. When
the jury returned to the courtroom, the court instructed
it not to draw an adverse inference from the defendant’s
absence. Watts proceeded to testify, and, after her testi-
mony, the defendant returned to the courtroom to hear
the testimony of the state’s final witness. On August
13, 2014, the jury found the defendant guilty of arson
in the first degree, and the court found the defendant
guilty of violating his probation.
On appeal, the defendant claims that the court erred
(1) by not canvassing him concerning his right to coun-
sel and right to self-representation after he clearly and
unequivocally invoked his right to self-representation,
and (2) if his invocation of his right to self-representa-
tion was not clear and unequivocal, by not canvassing
him concerning whether he wanted to invoke his right
to self-representation. The state responds that the
defendant did not invoke his right to self-representation
clearly and unequivocally, but, instead, he expressed a
desire to substitute counsel. As a result, the trial court
was not required to canvass the defendant concerning
his right to counsel and his right to self-representation,
and did not abuse its discretion by not canvassing the
defendant concerning his right to self-representation.
We agree with the state.
It is well established that the sixth amendment to the
United States constitution ‘‘embodies a right to self-
representation and that a defendant in a state criminal
trial has a constitutional right to proceed without coun-
sel when he voluntarily and intelligently elects to do
so.’’ (Internal quotation marks omitted.) State v. Pires,
310 Conn. 222, 230, 77 A.3d 87 (2013). ‘‘State and federal
courts consistently have discussed the right to self-
representation in terms of invoking or asserting it . . .
and have concluded that there can be no infringement
of the right to self-representation in the absence of a
defendant’s proper assertion of that right.’’ (Internal
quotation marks omitted.) Id., 231. That is, ‘‘[t]he consti-
tutional right of self-representation depends . . . upon
its invocation by the defendant in a clear and unequivo-
cal manner. . . . In the absence of a clear and unequiv-
ocal assertion of the right to self-representation, a trial
court has no independent obligation to inquire into the
defendant’s interest in representing himself . . . .
[Instead] recognition of the right becomes a matter
entrusted to the exercise of discretion by the trial
court.’’4 (Internal quotation marks omitted.) Id. ‘‘In the
exercise of that discretion, the trial court must weigh
into the balance its obligation to ‘indulge in every rea-
sonable presumption against waiver’ of the right to
counsel.’’ State v. Carter, 200 Conn. 607, 614, 513 A.2d
47 (1986).
‘‘Although a clear and unequivocal request is
required, there is no standard form it must take. [A]
defendant does not need to recite some talismanic for-
mula hoping to open the eyes and ears of the court to
[that] request. Insofar as the desire to proceed pro se
is concerned, [a defendant] must do no more than state
his request, either orally or in writing, unambiguously
to the court so that no reasonable person can say that
the request was not made. . . . Moreover, it is gener-
ally incumbent upon the courts to elicit that elevated
degree of clarity through a detailed inquiry. That is, the
triggering statement in a defendant’s attempt to waive
his right to counsel need not be punctilious; rather, the
dialogue between the court and the defendant must
result in a clear and unequivocal statement.’’ (Emphasis
omitted; internal quotation marks omitted.) State v.
Pires, supra, 310 Conn. 231–32.
Finally, ‘‘where the defendant claims that the trial
court improperly failed to exercise that discretion by
canvassing him after he clearly and unequivocally
invoked his right to represent himself . . . whether the
defendant’s request was clear and unequivocal presents
a mixed question of law and fact, over which . . . our
review is plenary.’’ (Internal quotation marks omitted.)
State v. Jordan, 305 Conn. 1, 13–14, 44 A.3d 794 (2012).
‘‘[I]n conducting our review, we are cognizant that the
context of [a] reference to self-representation is
important in determining whether the reference itself
was a clear invocation of the right to self-representa-
tion. . . . The inquiry is fact intensive and should be
based on the totality of the circumstances surrounding
the request . . . which may include, inter alia, whether
the request was for hybrid representation . . . or
merely for the appointment of standby or advisory coun-
sel . . . the trial court’s response to a request . . .
whether a defendant has consistently vacillated in his
request . . . and whether a request is the result of an
emotional outburst . . . .’’ (Internal quotation marks
omitted.) State v. Pires, supra, 310 Conn. 232.
In the present case, the defendant did not invoke his
right to self-representation clearly and unequivocally.
After the testimony of Keaton, it became apparent that
the defendant wanted to delay or stop the trial. Initially,
he attempted to forestall the trial by refusing to return
to the courtroom. When the court explained that the
trial would continue in his absence, the defendant
expressed his anxiety about the trial and the quality
of the representation he was receiving from defense
counsel. The court explained that it believed that the
defendant was receiving a fair trial and that defense
counsel was working to protect his rights and informed
the defendant that the trial would continue. When the
court further observed that the defendant had ‘‘an abso-
lute right to be represented by an attorney’’ and ‘‘ha[d]
an attorney,’’ the defendant informed the court that he
had fired defense counsel and, therefore, did not have
an attorney.5
The defendant never stated clearly, however, what
he wanted after he fired defense counsel, i.e., a continu-
ance, new counsel, or to represent himself. The defen-
dant argues that ‘‘the only reasonable inference is that,
by attempting to fire his privately retained attorney, he
was seeking to represent himself.’’ We disagree. Based
on the totality of the circumstances surrounding the
defendant’s statements, it is reasonable to infer that
the defendant wanted a continuance, a new attorney,
or both, not to represent himself. Indeed, the court
understood the defendant to be seeking to delay the
trial, and defense counsel understood him to be asking
for a continuance so that he could hire a new attorney
to finish the trial. The defendant’s refusal to return to
the courtroom on two occasions certainly does not
indicate that he wanted to represent himself. The defen-
dant did not disavow his counsel’s request for a continu-
ance either; he merely disputed whether defense
counsel was still his attorney. Accordingly, the defen-
dant did not invoke his right to self-representation
clearly and unequivocally.
Alternatively, the defendant argues that even if his
invocation of his right to self-representation was ‘‘less
than clear and unequivocal,’’ the court abused its discre-
tion by not canvassing him concerning his right to self-
representation. We disagree. ‘‘In the absence of a clear
and unequivocal assertion of the right to self-represen-
tation, a trial court has no independent obligation to
inquire into the defendant’s interest in representing him-
self . . . .’’ State v. Carter, supra, 200 Conn. 613. ‘‘A
trial court, faced with the responsibility of reconciling
a defendant’s inherently inconsistent rights to self-rep-
resentation and to counsel, is entitled to await a defini-
tive assertion of a request to proceed pro se. Any other
ruling would permit a defendant to claim on appeal a
violation of his rights whether he defended himself or
was represented by an attorney.’’ Id., 614. In the present
case, the defendant did not indicate that he wanted to
represent himself. He expressed concerns only about
the progress of trial and defense counsel’s performance,
and the court addressed those concerns. The court was
not required, in addition, to address whether the defen-
dant would like to represent himself as an alternative
to being represented by defense counsel.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-111 provides in relevant part: ‘‘(a) A person is
guilty of arson in the first degree when, with intent to destroy or damage
a building . . . he starts a fire . . . and (1) the building is inhabited or
occupied or the person has reason to believe the building may be inhabited
or occupied . . . .’’
2
The arson case and the violation of probation case were consolidated
for trial. The substantive charge of arson was tried to the jury, and the
charge of violation of probation was tried to the court.
3
Watts failed to appear, pursuant to a subpoena, on the first day of trial,
and a capias was issued. Initially, Watts indicated that she did not want to
testify. The court admonished Watts that she was subject to a subpoena
and appointed a member of the Public Defender’s Office so that she could
consult with an attorney concerning the consequences of her refusal to
testify. The recess was held so that Watts could consult with counsel. After
consulting with counsel, Watts agreed to testify.
4
‘‘Conversely, once there has been an unequivocal request for self-repre-
sentation, a court must undertake an inquiry [pursuant to Practice Book
§ 44–3], on the record, to inform the defendant of the risks of self-representa-
tion and to permit him to make a knowing and intelligent waiver of his right
to counsel.’’ (Internal quotation marks omitted.) State v. Pires, supra, 310
Conn. 231.
5
The record does not reflect that defense counsel knew that he had been
fired. Instead, it appears that defense counsel, at that point in time, believed
that the defendant did not want to return to the courtroom, not that he
wanted to fire him.
A defendant’s desire to fire defense counsel mid-trial is of no legal import.
A defendant does not have an unbridled discretion to substitute counsel in
the middle of trial, and a last minute discharge of counsel requires ‘‘excep-
tional circumstances.’’ (Internal quotation marks omitted.) State v. Drake-
ford, 202 Conn. 75, 83–84, 519 A.2d 1194 (1987). Further, a party’s motion
to substitute counsel and an attorney’s motion to withdraw, pursuant to
Practice Book § 3-8, ‘‘must be supported by a substantial reason,’’ and the
decision of whether to grant such a motion is committed to the sound
discretion of the trial court. State v. Gamer, 152 Conn. App. 1, 33–34, 95
A.3d 1223 (2014).