State v. Jeremy D. , 149 Conn. App. 583 ( 2014 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. JEREMY D.*
(AC 35058)
DiPentima, C. J., and Lavine and Dupont, Js.
Argued February 4—officially released April 22, 2014
(Appeal from Superior Court, judicial district of
Waterbury, Crawford, J.)
Glenn W. Falk, assigned counsel, with whom, on the
brief, was Deborah M. Frankel, legal fellow, for the
appellant (defendant).
Bruce R. Lockwood, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Jason Germain, senior assistant state’s
attorney, for the appellee (state).
Opinion
DUPONT, J. The defendant, Jeremy D., appeals from
the judgment of conviction, rendered after a trial to the
court, of one count of sexual assault in the fourth degree
in violation of General Statutes § 53a-73a (a) (1) (A),1
one count of risk of injury to a child in violation of
General Statutes § 53-21 (a) (1),2 and one count of risk
of injury to a child in violation of § 53-21 (a) (2).3 On
appeal, the defendant claims that the court failed to
ensure that he knowingly, intelligently and voluntarily
waived his right to a jury trial. Specifically, the defen-
dant argues that, during its canvass of him, the court
misstated relevant legal principles and did not take
into account his inexperience with the criminal justice
system. He therefore claims that the court improperly
refused to allow him to withdraw his waiver of a trial
by jury when he informed the court that he was con-
fused. We affirm the judgment of the trial court.
The following facts are relevant to our resolution of
this appeal. The defendant was charged in a substitute
information on March 8, 2012, with one count of sexual
assault in the first degree in violation of General Stat-
utes § 53a-70 (a) (2), one count of sexual assault in the
third degree in violation of General Statutes § 53a-72a
(a) (B) (2), one count of sexual assault in the fourth
degree in violation of § 53a-73a (a) (1) (A), one count
of risk of injury to a child in violation of § 53-21 (a) (2),
and one count of risk of injury to a child in violation
of § 53-21 (a) (1). On May 5, 2010, the defendant pleaded
not guilty and elected a trial by a jury of six. On March
12, 2012, the defendant appeared with counsel before
the court to begin jury selection. Before jury selection
began, however, the defendant alerted the court, Dami-
ani, J., that he had decided to waive his right to a trial
by jury and to proceed, instead, with a court trial. The
following colloquy then took place:
‘‘The Court: Mr. [D.], how old are you?
‘‘The Defendant: Thirty-seven.
‘‘The Court: And how far have you gone in school?
‘‘The Defendant: Eleventh grade.
‘‘The Court: You take any drugs, alcohol, or medica-
tion today?
‘‘The Defendant: No, sir.
‘‘The Court: Now, you’re here to start trial regarding
a sexual assault case, correct?
‘‘The Defendant: Yes, sir.
‘‘The Court: And you have your attorney with you,
[Howard] Lawrence. Right now, you elected a trial by
a jury of six. In a jury trial, you and your lawyer would
have a right or a say as to who’s going to be the trier
of fact in your case. Potential jurors come out, they sit
in the witness box, state’s attorney asks questions, your
lawyer asks questions. The juror then leaves and goes
outside the courtroom. You then confer with your law-
yer and say I don’t like that person, I like—whatever.
You understand that?
‘‘The Defendant: Yes, sir.
‘‘The Court: Court trial, whatever judge it is, it is. You
understand that?
‘‘The Defendant: Yes, sir.
‘‘The Court: In a jury trial, the state’s got to convince
all six jurors of your guilt beyond a reasonable doubt.
Your lawyer only has to create a reasonable doubt in
one juror’s mind to get a hung jury. You understand
that? A mistrial.
‘‘The Defendant: Yes, sir.
‘‘The Court: In a court trial there’s only one person.
The state’s got to convince that one person of your guilt
beyond a reasonable doubt, and your lawyer’s got to
create a reasonable doubt in that one person’s mind.
You understand that?
‘‘The Defendant: Yes, sir.
‘‘The Court: Now, you’re charged with [a] five count
information. Sexual assault in the first degree, sexual
assault in the third degree, sexual assault in the fourth
degree, risk of injury under subsection (1) and risk of
injury subsection (2). You’re exposed to a maximum
penalty of seventy years in jail, and/or a $60,000 fine,
of which, if the sentence—you’re convicted and the
sentences were consecutive, fifteen years cannot be
suspended or reduced by the court, you understand
that?
‘‘The Defendant: Yes, sir.
‘‘The Court: Do you understand all that?
‘‘The Defendant: Yes, sir.
‘‘The Court: Do you wish to be tried by a judge or
by a jury?
‘‘The Defendant: A judge.
‘‘The Court: And that’s your free [act] and deed?
‘‘The Defendant: Yes, sir.
‘‘The Court: This choice is irrevocable, which means
if you change your mind two seconds from now, it’s
too late. Do you understand that?
‘‘The Defendant: Yes, sir.
‘‘The Court: You’ve talked to your lawyer about this?
‘‘The Defendant: Yes, sir.
‘‘The Court: He’s explained everything in great detail?
‘‘The Defendant: Yes, sir.
‘‘The Court: And you’re satisfied with his represen-
tation?
‘‘The Defendant: Yes.
‘‘The Court: And you want to make an election of your
own free will to go from a jury to a court trial, correct?
‘‘The Defendant: Yes, sir.
‘‘The Court: Anything further [defense counsel] on
this?
‘‘[Defense Counsel]: No, that covers it, Your Honor.
. . .
‘‘The Court: Record will reflect a knowing, intelligent,
voluntary waiver of jury to court; matter is set for a
court trial.’’
On March 19, 2012, the defendant moved to vacate
his election to trial by the court in favor of a jury trial.
The defendant argued that the court confused him
because, during its canvass of him, the court had stated:
‘‘Your lawyer only has to create a reasonable doubt in
one juror’s mind to get a hung jury.’’ (Emphasis added.)
The defendant claimed that the court’s use of the word
‘‘create’’ led him to mistakenly believe that he had a
burden of production and persuasion and that, because
he ‘‘is [a] layman, he was confused by the canvass.’’ In
denying the defendant’s motion, Judge Damiani stated:
‘‘[Defense counsel], you want to split hairs, when you
argue to a jury, and I’ve done it thousands of times, the
state has the burden of proof beyond a reasonable doubt
. . . . We know you have no burden of proof, but they
have to prove beyond a reasonable doubt . . . . [Your
motion] is denied. You have an exception.’’
The defendant then proceeded to trial before the
court, Crawford, J., and was convicted of sexual assault
in the fourth degree in violation of § 53a-73a (a) (1) (A),
risk of injury to a child in violation of § 53-21 (a) (2),
and risk of injury to a child in violation of § 53-21 (a)
(1). On June 1, 2012, the court sentenced the defendant
to a total effective term of fifteen years incarceration,
suspended after five years, with fifteen years probation.
This appeal followed.
On appeal, the defendant claims that the court
improperly determined that the waiver of his right to
a jury trial was done knowingly, intelligently and volun-
tarily.4 Specifically, the defendant asserts that the court
improperly refused to permit him to withdraw his
waiver when he expressed his confusion concerning
the court’s alleged misrepresentation that the defendant
had to ‘‘create’’ a reasonable doubt for the jury. We
disagree.
Before addressing the merits of the defendant’s claim,
we begin by setting forth the applicable standard of
review and the legal principles governing our analysis.
‘‘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.
. . . [W]e have adopted the definition of a valid waiver
of a constitutional right as the intentional relin-
quishment 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. . . . When such a claim
is first raised on appeal, our focus is on compliance
with these constitutional requirements rather than on
observance of analogous procedural rules prescribed
by statute or by the Practice Book. . . . Our task,
therefore, is to determine whether the totality of the
record furnishes sufficient assurance of a constitution-
ally valid waiver of the right to a jury trial. . . . Our
inquiry is dependent upon the particular facts and cir-
cumstances surrounding [each] case, including the
background, experience, and conduct of the accused.
. . . In examining the record, moreover, we will indulge
every reasonable presumption against waiver of funda-
mental constitutional rights and . . . [will] not pre-
sume acquiescence in the loss of fundamental rights.
. . . In addition, a waiver of a fundamental constitu-
tional right [such as the right to a trial by jury] is not
to be presumed from a silent record. . . . [Rather] in
determining whether a court has properly accepted a
waiver of the right [to a jury trial], there must be some
affirmative indication from the accused personally, on
the record, that he or she has decided to waive the
fundamental right to a jury trial [as] the defendant’s
silence is too ambiguous to permit the inference that he
or she has waived such a fundamental right.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Tocco, 120 Conn. App. 768, 777–78, 993 A.2d 989, cert.
denied, 297 Conn. 917, 996 A.2d 279 (2010). Importantly,
‘‘[a] defendant’s personal assertion of a waiver of the
right to a jury trial is not conclusive evidence that the
waiver was made knowingly, intelligently and volunta-
rily, but its absence is a fatal blow to the validity of a
waiver.’’ State v. Gore, 288 Conn. 770, 782, 955 A.2d
1 (2008).
‘‘In addition to determining that a defendant who
seeks to [waive a constitutional right] is competent, a
trial court must satisfy itself that the waiver . . . is
knowing and voluntary. . . . [I]n this sense, there is a
heightened standard for [the waiver of a constitutional
right], but it is not a heightened standard of competence.
. . . Moreover, it is the same standard that is applicable
to all criminal defendants who have been found compe-
tent to stand trial. Under this standard, [t]he determina-
tion of whether there has been an intelligent waiver of
[a constitutional right] must depend, in each case, upon
the particular facts and circumstances surrounding that
case, including the background, experience, and con-
duct of the accused.’’ (Internal quotation marks omit-
ted.) State v. Tocco, supra, 120 Conn. App. 779.
We first note that the defendant addressed the court
personally and stated on the record that he wanted a
trial before the court in lieu of a trial by jury. The
condition precedent for a constitutionally valid waiver
was therefore satisfied. See id., 778–79. We must now
examine the totality of the circumstances, which
include the defendant’s competence and background
as well as the court’s statements to the defendant, to
determine whether the defendant’s waiver was know-
ingly, intelligently and voluntarily made.
Although the defendant’s competence is not other-
wise challenged on appeal, the defendant does argue
that his lack of familiarity with the criminal process as
a ‘‘layman’’ combined with the court’s alleged misuse
of the word ‘‘create’’—an argument we will address—
confused him. It is thus important to note at the outset
that a lack of understanding or mere confusion concern-
ing criminal proceedings does not amount to mental
incompetence in determining whether a defendant was
sufficiently competent to validly waive a constitutional
right to a trial by jury. See State v. Paulino, 127 Conn.
App. 51, 66, 12 A.3d 628 (2011) (‘‘although the defendant
did admit that he often was confused by court proce-
dures, a lack of legal expertise is not indicative of
incompetence’’).
As the defendant’s competence is not otherwise at
issue, we now consider his background, conduct and
experience. For that information, we look to the trial
court transcripts and record as well as the court’s can-
vass of the defendant concerning his waiver. With
respect to the court’s canvass of the defendant, the
transcript of the colloquy itself reflects that the defen-
dant responded to the court’s inquiries in an intelligible
and well mannered fashion. See State v. Tocco, supra,120 Conn. App. 780. During the court’s colloquy, the
defendant represented that he was not under the influ-
ence of alcohol, drugs or medications, that he had an
eleventh grade education, that he carefully had consid-
ered the issue after discussions with his attorney, and
that he was confident in his decision to proceed with
a court trial. When questioned on the specifics of the
waiver, the defendant reiterated multiple times that he
understood the irrevocability of his decision and that
he had decided voluntarily to instead elect a court trial.
During his trial testimony, the defendant similarly
responded to questions in a polite and coherent manner.
There is nothing in the record to indicate that the defen-
dant was not a man of ordinary intelligence or that he
lacked meaningful life experience. See State v. Rizzo,
303 Conn. 71, 92, 31 A.3d 1094 (2011), cert. denied,
U.S. , 133 S. Ct. 133, 184 L. Ed. 2d 64 (2012).
Importantly, the record reflects that the defendant
was represented by counsel, Lawrence, throughout the
course of the trial. There is also nothing in the record
to indicate that the defendant had problems communi-
cating effectively with Lawrence before, during, or after
trial. In fact, the defendant reiterated during the court’s
canvass that he had discussed his decision to waive his
right to a jury trial with his attorney, that his attorney
had explained everything in detail, and that he was
satisfied with the advice given to him by counsel. The
fact that the defendant was represented by counsel and
that he conferred with counsel concerning the right to
waive his right to a jury supports the conclusion that
his waiver to a trial by jury was done knowingly and
intelligently. See, e.g., State v. Smith, 100 Conn. App.
313, 324, 917 A.2d 1017, cert. denied, 282 Conn. 920,
925 A.2d 1102 (2007); see also State v. Cobb, 251 Conn.
285, 373, 743 A.2d 1 (1999) (‘‘[a]lthough the presence
of counsel does not by itself mean that the defendant’s
interests and rights are protected . . . [t]he fact of
counsel being present and having advised the defendant
[concerning jury waiver] is a factor to be considered
in determining the question of the need for or suffi-
ciency of any admonition given by the court’’ [internal
quotation marks omitted]), cert. denied, 531 U.S. 841,
121 S. Ct. 106, 148 L. Ed. 2d 64 (2000).
We turn next to the court’s statements during its
colloquy with the defendant. In questioning the defen-
dant, the court explained the difference between a jury
trial, including defense counsel’s ability to influence
jury selection, and a court trial, which the defendant
confirmed he understood. The court confirmed that the
defendant had discussed his decision to proceed with
a court trial with his attorney and inquired as to whether
he was satisfied with his counsel’s explanation. Import-
antly, the court unambiguously stated that the waiver
of the right to a trial by jury was an irrevocable decision,
‘‘which means if you change your mind two seconds
from now, it’s too late.’’ The defendant replied to the
court’s inquiries immediately, confirmed that he under-
stood every aspect of the waiver repeatedly, and twice
confirmed that he was freely choosing a court trial
before the court granted the defendant’s waiver. See
State v. Tocco, supra, 120 Conn. App. 781 (‘‘[t]he defen-
dant’s immediate and unequivocal replies to the court’s
inquiries reflected his strong desire to proceed to trial
before the court, not a jury’’). At the end of the canvass,
the court asked defense counsel if he had anything
further, to which he responded, ‘‘No, that covers it,
Your Honor.’’ The issue of waiver was thus clearly
addressed by the trial court, as evidenced by the defen-
dant’s explicit and unambiguous response to the court’s
inquiries that he had chosen to proceed to trial before
the court instead of before a jury.
In examining the totality of the circumstances, we
conclude that the defendant knowingly, intelligently
and voluntarily waived his right to a trial by jury and,
instead, elected to proceed with a court trial. The court
conducted a canvass of the defendant, on the record,
which determined that the defendant understood his
right to a trial by jury and also confirmed that he under-
stood the irrevocability and relevant differences in
electing to instead proceed with a court trial. The record
as a whole indicates that the defendant did have a
sufficient understanding of his right to proceed to trial
before a jury such that he could have waived that right
in a constitutionally appropriate manner. We therefore
disagree with the defendant’s argument that the court
failed to ensure a knowing, intelligent and voluntary
waiver of his right to a jury trial.
The defendant next argues that the court improperly
refused to allow him to withdraw his election of a court
trial on the ground that it had misstated relevant legal
principles during its canvass. Specifically, the defendant
asserts that the court’s use of the word ‘‘create’’ in
describing the burden of proof in a criminal trial con-
fused him because it may have caused him ‘‘to [believe]
that his attorney . . . would be unable to create a rea-
sonable doubt in the mind of a juror, and therefore he
decided to forgo a jury trial.’’ In support of his argument,
the defendant cites numerous cases in which burden
shifting language in jury instructions or closing argu-
ments have warranted new trials and also relies on
General Statutes § 54-82b (b) for additional support.5
Although we agree that § 54-82b (b) does provide the
defendant with the right to challenge the validity of his
waiver under certain circumstances, the record does
not indicate that the mere use of the word ‘‘create’’ in
the court’s canvass of the defendant rendered him so
confused that he was ‘‘not fully cognizant of his rights
. . . .’’ General Statutes § 54-82b (b). We do note that
in State v. Fernandez, 27 Conn. App. 73, 83, 604 A.2d
1308, cert. denied, 222 Conn. 904, 606 A.2d 1330 (1992),
this court opined: ‘‘The defendant requested the court
to instruct the jury that the defendant’s evidence ‘need
only be sufficient to create a reasonable doubt. Hence,
when assessing circumstantial evidence offered by the
defense, you see if it creates a reasonable doubt.’ . . .
An instruction that the jury should determine whether
the defendant has created a reasonable doubt carries
with it a substantial and totally unjustifiable risk of
diluting the constitutional requirement that the burden
of proving the defendant guilty rests squarely on the
state and that the defendant bears no burden of proving
himself innocent.’’ (Citation omitted; emphasis in origi-
nal.) Given the totality of the circumstances in the pre-
sent matter, however, we conclude that the court’s use
of the word ‘‘create’’ in its canvass of the defendant,
although not the clearest term it could have employed,
was not sufficiently confusing so as to conclude that
it impermissibly shifted the burden of proof onto the
defendant. It is important to note that, in its canvass
of the defendant, the court used the term ‘‘create’’ with
respect to both jury trials and court trials. Therefore,
the word ‘‘create’’ was used in a neutral manner such
that any claimed mistake was inconsequential. Further-
more, and as the state also points out on appeal, both
our Supreme Court and this court have utilized the term
‘‘create’’ in describing a defendant’s trial strategy. See
State v. Findlay, 198 Conn. 328, 344, 502 A.2d 921 (‘‘[t]he
defense counsel attempted to paint a favorable portrait
of the defendant in order to create a reasonable doubt
in the minds of the jury’’), cert. denied, 476 U.S. 1159,
106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986); State v. Buster,
27 Conn. App. 263, 274, 606 A.2d 9 (1992) (‘‘[i]n his
case-in-chief, the defendant sought to create a reason-
able doubt as to his guilt by presenting evidence from
several witnesses’’), aff’d, 224 Conn. 546, 620 A.2d 110(1993). Our conclusion is only reinforced given the fact,
as noted, that the defendant was represented by counsel
at all relevant times. Accordingly, the defendant’s argu-
ment must fail.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to use the defendant’s full name or to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
1
General Statutes § 53a-73a (a) provides in relevant part: ‘‘A person is
guilty of sexual assault in the fourth degree when: (1) Such person intention-
ally subjects another person to sexual contact who is (A) under thirteen
years of age and the actor is more than two years older than such other
person . . . .’’
2
General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who
(1) wilfully or unlawfully causes or permits any child under the age of
sixteen years to be placed in such a situation that the life or limb of such
child is endangered, the health of such child is likely to be injured or the
morals of such child are likely to be impaired, or does any act likely to
impair the health or morals of any such child . . . shall be guilty of a class
C felony for a violation of subdivision (1) . . . .’’
3
General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who
. . . (2) has contact with the intimate parts, as defined in section 53a-65,
of a child under the age of sixteen years or subjects a child under sixteen
years of age to contact with the intimate parts of such person, in a sexual
and indecent manner likely to impair the health or morals of such child
. . . shall be guilty of . . . a class B felony for a violation of subdivision
(2) . . . .’’
4
The defendant relies on his right to a trial by jury under both the sixth
amendment to the constitution of the United States as well as article first,
§§ 8 and 19, as amended by article four of the amendments, of the constitu-
tion of Connecticut. For purposes of this appeal, however, the defendant
does not claim that his rights under the state constitution are more extensive
than his rights under the constitution of the United States.
5
General Statutes § 54-82b (b) provides for the withdrawal of a jury trial
waiver under certain circumstances: ‘‘In criminal proceedings the judge shall
advise the accused of his right to trial by jury at the time he is put to plea
and, if the accused does not then claim a jury, his right thereto shall be
deemed waived, but if a judge acting on motion made by the accused within
ten days after judgment finds that such waiver was made when the accused
was not fully cognizant of his rights or when, in the opinion of the judge,
the proper administration of justice requires it, the judge shall vacate the
judgment and cause the proceeding to be set for jury trial.’’