State v. Cushard ( 2016 )

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STATE OF CONNECTICUT v. ROBERT CUSHARD
(AC 36680)
Lavine, Beach and Mihalakos, Js.
Argued November 18, 2015—officially released April 26, 2016
(Appeal from Superior Court, judicial district of
Litchfield, Ginocchio, J.)
Daniel J. Krisch, assigned counsel, for the appel-
lant (defendant).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were David S. Shepack, state’s
attorney, and Dawn Gallo, supervisory assistant state’s
attorney, for the appellee (state).
Opinion
BEACH, J. The defendant, Robert Cushard, appeals
from the judgment of conviction, rendered after a jury
trial, of assault in the first degree, two counts of robbery
in the first degree, and one count of burglary in the
first degree pursuant to General Statutes §§ 53a-59 (a)
(1), 53a-134 (a) (1) and (3), and 53a-101 (a) (2), respec-
tively. On appeal, the defendant claims that the trial
court improperly (1) denied his motion to suppress
statements that he made during an interrogation by the
state police, in that he had smoked crack cocaine a few
hours prior to the interrogation and, as such, the waiver
of his Miranda1 rights was invalid; (2) granted his
motion to represent himself because the court’s canvass
of him did not adequately establish that his waiver was
voluntary, knowing, and intelligent; and (3) instructed
the jury that it had to consider his interest in the out-
come of the trial, in that such instruction singled him
out and thus undermined his right to a fair trial. We do
not agree with the defendant’s claims, and we affirm
the judgment.
The following facts and procedural history are rele-
vant to the disposition of the defendant’s appeal. The
defendant was arrested in Massachusetts on August 4,
2011. Shortly after his arrest, two Connecticut state
police officers interrogated the defendant. During this
interrogation, the police prepared a statement for the
defendant, but he declined to sign it. A transcript and
audiotape of the interview were entered into evidence
at the defendant’s trial. In July, 2012, the defendant
moved to suppress the statements he made during the
interrogation, as well as any testimony related to the
statements. He argued that he had not knowingly and
intelligently waived his rights to counsel and against
self-incrimination because he had used crack cocaine
shortly prior to his arrest and subsequent interrogation.
The court denied the motion.
In September, 2012, the defendant filed a motion to
represent himself. The defendant claimed that his attor-
ney, Christopher M. Cosgrove, was not familiar with
his case and was ineffective. In October, 2012, the court
conducted a canvass of the defendant, at the end of
which the court granted his motion to represent himself.
In February, 2013, the court recanvassed the defendant
‘‘to go over that once again.’’ The defendant indicated,
again, that he wished to proceed without counsel.
After hearing the evidence, the jury found the defen-
dant guilty of assault, burglary, and two counts of rob-
bery.2 The defendant was sentenced to thirty years
imprisonment, followed by ten years of special parole.
This appeal followed.3
I
The defendant claims that the court erred when it
denied his motion to suppress the statements he had
made during an interrogation by Brian Narkewicz, a
detective with the Connecticut state police. He argues
that he did not knowingly and intelligently waive his
Miranda rights before giving his statements to the
police because he had smoked crack cocaine a few
hours earlier. We do not agree.
Additional facts, as presented in the record, are nec-
essary to resolve this claim. When the defendant was
arrested and brought into the interview room at the
police station, Narkewicz read the defendant his rights,
and the defendant placed his initials next to each right
on a waiver form. The defendant also signed the bottom
of the waiver form. Narkewicz testified that the defen-
dant appeared to read the rights form prior to signing.
He agreed with the prosecutor that, on the basis of
the interview, he believed that the defendant had a
sophisticated understanding of the criminal justice sys-
tem.4 Narkewicz questioned the defendant about the
allegations against the defendant for nearly one hour.
He testified that the defendant ‘‘was interacting with
me in a very coherent and logical manner’’ and ‘‘answer-
ing the questions in a logical, calculated manner.’’
Toward the end of the interrogation, the defendant
told Narkewicz that he had used crack cocaine one
hour prior to his arrest. In response, Narkewicz termi-
nated the interrogation: ‘‘I don’t want to take a state-
ment from you when you’re [messed] up . . . [and] if
you’re not in the right frame of mind . . . . [W]e’re not
going to take a statement from you right now because,
you know, you’re telling me that you’re still messed up
on crack cocaine, and I certainly don’t want to . . . do
anything you’re going to regret later on . . . .’’
At the hearing on the motion to suppress, Narkewicz
testified that, on the basis of his experience and training,
he did not believe that the defendant was unable to
make rational decisions: ‘‘Given the lapse of time
between when he was taken into custody and when I
was speaking with him, I did not believe that to be a
factor during this interview.’’5 Narkewicz also testified
that the defendant corrected Narkewicz’ grammar and
pronunciation throughout the investigation. He had not
detected the defendant slurring his speech. He observed
the defendant exhibit similar mannerisms and speech
both during the interview and the next day when the
defendant would not have been under the influence of
crack cocaine.
The court denied the motion to suppress, and
although the court did not make a specific finding as
to whether the defendant was under the influence of
drugs at the time of the interview, it found in the ‘‘totality
of the circumstances’’ that Narkewicz ‘‘was a credible
witness when he addressed the issue of notice, rights,
and waiver of rights. Apparently, [the defendant],
according to the testimony, understood those rights,
checked off boxes on each right, [and] signed the rights;
he never indicated to Detective Narkewicz, at that point,
that there was any issue insofar as cocaine or drug
abuse . . . .’’ The court noted that the defendant had
not provided information about any treatment he may
have received for drug use or introduced expert testi-
mony to explain the effect an illegal substance may
have had on his ability to make a voluntary, knowing,
and intelligent waiver.
The defendant argues that the court’s conclusion that
the waiver was valid was erroneous because it was
based on inconsistent findings. He argues that ‘‘[t]here
is an irreconcilable inconsistency between Narkewicz’
testimony and his refusal to take the defendant’s state-
ment after he learned that the defendant had smoked
crack a few hours earlier. Given the trial court’s express
reliance on Narkewicz’ credibility and reliability, its
finding of voluntariness cannot stand.’’
First, we set forth the principles that guide our
review. ‘‘To be valid, a waiver must be voluntary, know-
ing and intelligent. . . . The state has the burden of
proving by a preponderance of the evidence that the
defendant voluntarily, knowingly and intelligently
waived his Miranda rights. . . . Whether a purported
waiver satisfies those requirements is a question of fact
that depends on the circumstances of the particular
case.’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) State v. Reynolds, 264 Conn.
1, 50, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908,
124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004). ‘‘Although
the issue [of whether there has been a knowing and
voluntary waiver] is . . . ultimately factual, our usual
deference to fact-finding by the trial court is qualified,
on questions of this nature, by the necessity for a scru-
pulous examination of the record to ascertain whether
such a factual finding is supported by substantial evi-
dence.’’ (Internal quotation marks omitted.) State v.
Stephenson, 99 Conn. App. 591, 599–600, 915 A.2d 327,
cert. denied, 282 Conn. 903, 919 A.2d 1037 (2007).
‘‘Moreover, an express written or oral statement of
waiver of the right to remain silent or of the right to
counsel is usually strong proof of the validity of that
waiver, but is not inevitably either necessary or suffi-
cient to establish waiver. The question is not one of
form, but rather whether the defendant in fact know-
ingly and voluntarily waived the rights delineated in the
Miranda case . . . [and] in at least some cases waiver
can be clearly inferred from the actions and words of
the person interrogated. . . . Although mere silence of
the accused is not enough to establish waiver . . . the
record need not show a specific expression of the relin-
quishment of rights.’’ (Citations omitted; internal quota-
tion marks omitted.) Id., 600.
We conclude that the court’s factual findings were
not clearly erroneous or irreconcilably inconsistent and
that they survive a scrupulous examination of the
record. See id., 599–600. ‘‘The trial court has broad
discretion in evaluating the evidence and testimony pre-
sented before it.’’ State v. Billie, 47 Conn. App. 678,
692, 707 A.2d 324 (1998), aff’d, 250 Conn. 172, 738 A.2d
586 (1999). The court credited Narkewicz’ testimony
that he did not observe, on the basis of his experience
and training, the defendant acting incoherently. Rather,
the defendant seemed to be composed, articulate, and
calculating. Moreover, the record supports the court’s
finding that the defendant, at the time of the interview,
did not indicate that he had used crack cocaine until
‘‘things were getting a little too close for comfort with
the defendant, in terms of any admissions he might
be making . . . .’’6 Although Narkewicz terminated the
interrogation upon hearing the defendant’s claim that
he had used crack cocaine that day, the court reason-
ably could have determined from Narkewicz’ testimony
that the defendant was capable of exercising a valid
waiver and that Narkewicz simply may have been exer-
cising caution in terminating the interview. On the basis
of the record, we conclude that the court did not deter-
mine improperly that the defendant validly waived his
Miranda rights in the totality of the circumstances.
II
The defendant claims that the court abused its discre-
tion by granting his September, 2012 motion to repre-
sent himself because the court did not adequately
canvass him pursuant to Practice Book § 44-3, and that
such error was structural. We agree that the October,
2012 canvass was inadequate. We disagree that the inad-
equate canvass amounted to structural error in the cir-
cumstances of this case, and instead conclude that it
was harmless error.
Practice Book § 44-3 states that a defendant shall
be permitted to represent himself at any stage of the
proceedings. The rule reads in pertinent part: ‘‘A waiver
will be accepted only after the judicial authority makes
a thorough inquiry and is satisfied that the defendant:
(1) Has been clearly advised of the right to the assis-
tance of counsel, including the right to the assignment
of counsel when so entitled . . . [and] (3) Compre-
hends the nature of the charges and proceedings, the
range of permissible punishments, and any additional
facts essential to a broad understanding of the case
. . . .’’ Practice Book § 44-3. The defendant claims that
the court’s canvass failed to satisfy the requirements
of § 44-3 (1) and (3).
First, we shall address the court’s decision to accept
the defendant’s waiver. Second, we shall conduct a
harmless error analysis.
A
We review a court’s decision to permit a defendant
to waive counsel and proceed as a self-represented
party for abuse of discretion. State v. Davalloo, 153
Conn. App. 419, 443, 101 A.3d 355 (2014), aff’d, 320
Conn. 123, 128 A.3d 492 (2016). ‘‘[W]e do not review the
proceedings for strict compliance with the prophylactic
rule of Practice Book § 44-3, but rather for evidence
that the waiver of counsel was made knowledgeably
and voluntarily.’’ Id.
‘‘The right to counsel and the right to self-representa-
tion present mutually exclusive alternatives. A criminal
defendant has a constitutionally protected interest in
each, but since the two rights cannot be exercised
simultaneously, a defendant must choose between
them. When the right to have competent counsel ceases
as the result of a sufficient waiver, the right of self-
representation begins. . . . Put another way, a defen-
dant properly exercises his right to self-representation
by knowingly and intelligently waiving his right to repre-
sentation by counsel. . . .
‘‘Practice Book § [44-3] was adopted in order to
implement the right of a defendant in a criminal case
to act as his own attorney . . . . Before a trial court
may accept a defendant’s waiver of counsel, it must
conduct an inquiry in accordance with § [44-3], in order
to satisfy itself that the defendant’s decision to waive
counsel is knowingly and intelligently made. . . .
Because the § [44-3] inquiry simultaneously triggers the
constitutional right of a defendant to represent himself
and enables the waiver of the constitutional right of a
defendant to counsel, the provisions of § [44-3] cannot
be construed to require anything more than is constitu-
tionally mandated.’’ (Emphasis added; internal quota-
tion marks omitted.) State v. Collins, 299 Conn. 567,
611, 10 A.3d 1005, cert. denied, U.S. , 132 S. Ct.
314, 181 L. Ed. 2d 193 (2011).
Our Supreme Court recently explained that before a
trial court may conclude that a knowing, intelligent, and
voluntary waiver of the right to counsel has occurred, it
‘‘is required to indulge in every reasonable presumption
against waiver of the right to counsel and investigate
as long and as thoroughly as the circumstances of the
case before [it] demand. . . . [I]t is important that the
court consider whether the defendant affirmatively
made a choice or whether he proceeded alone only
because he felt he had no choice and thus did not
effectively waive his right. . . . See, e.g., State v. Meb-
ane, 204 Conn. 585, 588, 595, 529 A.2d 680 (1987) (rever-
sal required when defendant was prevented from
speaking with counsel during recess in midst of state’s
cross-examination), cert. denied, 484 U.S. 1046, 108 S.
Ct. 784, 98 L. Ed. 2d 870 (1988); see also State v. Brown,
279 Conn. 493, 507 n.5, 903 A.2d 169 (2006); State v.
Peeler, 265 Conn. 460, 475, 828 A.2d 1216 (2003), cert.
denied, 541 U.S. 1029, 124 S. Ct. 2094, 158 L. Ed. 2d 710(2004).’’ (Citations omitted; internal quotation marks
omitted.) State v. Francis, 317 Conn. 450, 459–60, 118
A.3d 529 (2015).
With these foundational principles in mind, we turn
to the present case. The defendant argues that the Octo-
ber, 2012 canvass did not satisfy the requirements of
Practice Book § 44-3 in two respects: the canvass estab-
lished neither that he knew that he had the right to the
assistance of counsel, nor that he comprehended the
nature of the charges and range of possible punish-
ments. See Practice Book § 44-3 (1) and (3). The record
supports the defendant’s position. The following collo-
quy occurred, in relevant part, at the October, 2012
canvass:
‘‘The Court: . . . You’re facing assault one, robbery
one, larceny fourth. And I’m just going to ask the state’s
attorney to put on the record—if you did proceed to
trial. Attorney [Dawn] Gallo, what would he be tried
on? What type—what charges?
‘‘[The Prosecutor]: The state would actually try the
matter at firm jury line two first, which is assault first,
robbery one, and larceny four, Your Honor. And the
violation of probation was based in part on that new
arrest, so that could be tried concurrently to the court
at the same time. The assault one is a twenty year
felony; the robbery one is a twenty year felony; the
larceny is a misdemeanor case; and on his violation of
probation, Your Honor, he owes just one year on an
interfering with a police officer.
‘‘Additionally, however, the state may charge a bur-
glary one, which is also a twenty year felony, so at this
point [the defendant’s] maximum exposure is sixty plus
years on those files.
‘‘The Defendant: How do you get sixty? They don’t—
they don’t even add up.
‘‘The Court: But see, that’s one of the questions I
would ask you. Did you realize that if you proceeded
to trial and you lost, your exposure could be twenty
years on the assault one.
‘‘The Defendant: Right.
‘‘The Court: Twenty years on the robbery.
‘‘The Defendant: There’s no sixty.
‘‘The Court: That’s forty.
‘‘The Defendant: There’s no sixty that remotely
even—that’s wrong.
‘‘The Court: Right now I have forty. Would you just
repeat that again?
‘‘[The Prosecutor]: Right, Your Honor. This was an
entry into a building with the intent to commit a crime;
the state has the right to add a burglary one charge.
I’ve discussed that with Attorney Cosgrove in the scope
of our negotiations. At the time that the offer was
rejected, all those negotiations went out the window.
So, at this point the state is considering adding a bur-
glary one charge as well.
‘‘The Court: All right. Whether you agree with that
or not your exposure—
‘‘The Defendant: Right.
‘‘The Court: Your exposure—
‘‘The Defendant: So, basically that’s a threat if I don’t
cop out—
‘‘The Court: Well—
‘‘The Defendant: —I’m going to have this charge in
a way.
‘‘The Court: All I know is that the state has the right—
if there’s no negotiations reached, the state’s entitled—
‘‘The Defendant: Right.
‘‘The Court: —to proceed—
‘‘The Defendant: Right.
‘‘The Court: —on the charge—but the question I have
for you is, do you realize what your exposure is?
‘‘The Defendant: I mean, I mean, well, now I do, you
know, but I mean, that’s kind of crappy, she’s going to
threaten me like that, but . . . .
‘‘The Court: It’s not a threat, it’s basically—
‘‘The Defendant: I mean, I can’t do no worse. Mr.
Cosgrove, when was the last time you—won a case in
this courtroom? It’s been years, right? He’s been—I
mean, I can’t do any worse than that. . . .
‘‘The Court: And you know that you have the right
to have Mr. Cosgrove continue to represent you. If you
went through with your trial, he would be there; he’d
be able to file motions before or during the trial; he
would be able to cross-examine or confront witnesses
brought in against you; he would be able to advise you
or you’d be able to help him during jury selection in
choosing a jury that you both felt was acceptable. . . .
‘‘The Defendant: I could plead my case today and
walk out of here. I mean, it’s really simple. I mean—
‘‘The Court: All right. You understand that you could
have a lawyer represent you, it would be Mr. Cosgrove.
You don’t want—you do not want him to represent
you, correct?
‘‘The Defendant: Right.’’
First, we address the defendant’s contention that the
canvass failed to ensure that he had been advised of
his right to an attorney. Although a court is not required
to read a ‘‘formula or script’’ in its determination of
whether a defendant made a voluntary, intelligent, and
knowing waiver; see State v. Wilkins, 159 Conn. App.
443, 450, 123 A.3d 92, cert. denied, 319 Conn. 935, 125
A.3d 208 (2015); the court in this matter did not inquire
as to whether the defendant had been advised of his
right to an attorney or of his right to hire a private
attorney at the October, 2012 canvass. Indeed, the
words of the court, read literally, suggested that the
defendant had only two choices: to proceed without
representation or to proceed with representation by
Cosgrove. There was no advisement during the canvass
that the defendant had the general right to counsel of
his choice, with the proviso that, if he could not afford
counsel, the court was not inclined to appoint counsel
other than Cosgrove.
Our Supreme Court has held that ‘‘[a] defendant . . .
does not possess a constitutional right to a specifically
formulated canvass . . . . His constitutional right is
not violated as long as the court’s canvass, whatever
its form, is sufficient to establish that the defendant’s
waiver was voluntary and knowing.’’ (Internal quotation
marks omitted.) State v. Diaz, 274 Conn. 818, 831, 878
A.2d 1078 (2005). The state argues that the record suffi-
ciently supports the court’s conclusion that the defen-
dant’s waiver was voluntary, knowing, and intelligent;
specifically, the state claims that the defendant pre-
viously had been advised of his right to counsel by
Cosgrove, and by statements made at his arraignment,
such that the court properly could accept his waiver
of counsel.
The state posits that Cosgrove clearly advised the
defendant of his right to an attorney in letters written
by Cosgrove to the defendant. The defendant attached
to his motion to allow self-representation two letters
from Cosgrove. Cosgrove’s May, 2012 letter stated, ‘‘You
can always hire a private attorney, if you can afford
one, or you could ask the judge to allow you to represent
yourself, if that’s what you want. He is not going to
appoint you another public defender.’’ These two sen-
tences do not establish that the defendant, as the state
argues, was ‘‘clearly advised of the right to the assis-
tance of counsel . . . .’’ Practice Book § 44-3 (1). There
is no evidence in the record that the defendant read
Cosgrove’s May, 2012 letter, nor did the court inquire
as to whether the defendant understood, on the basis
of the statements in that letter, that he had the right
to counsel. Whether the defendant, in fact, had been
advised or was aware that he had such a right was not
established during the canvass; hence, the canvass did
not comport with § 44-3 (1).7
Second, we address the defendant’s claim that the
canvass did not establish that he comprehended the
nature of the charges against him. The state contends
that the court could infer that Cosgrove had advised
the defendant as to the nature of the charges against
him: ‘‘Because Cosgrove provided the defendant discov-
ery documents, engaged in plea negotiations, and com-
municated with the defendant, in writing and in person,
even when the defendant stubbornly refused to recipro-
cate, it is appropriate to presume that he informed the
defendant of the nature of the charges.’’ Our case law
does not support the contention that such a presump-
tion was proper in this particular case.
In State v. Frye, 224 Conn. 253, 617 A.2d 1382 (1992),
our Supreme Court acknowledged that ‘‘a trial court
may generally presume that defense counsel has
explained to a defendant the nature of the offense
. . . .’’ (Citation omitted.) Id., 261–62. The presumption
did not apply in Frye itself, however, because ‘‘the
defendant felt ‘unsatisfied with [his attorney’s] level of
preparation and knowledge about the case.’ Moreover,
the defendant informed the court that ‘I haven’t talked
to [the appointed attorney] no more than [twenty]
minutes at the most.’ ’’ Id. Similarly, in the present mat-
ter, the defendant stated during the October, 2012 can-
vass that he and Cosgrove ‘‘have not discussed my case
in a year, I mean, at all.’’ Cosgrove’s letters also reflect
that he and the defendant had not discussed details
about the case. Cosgrove wrote, ‘‘I told you I am not
going to put a case on the trial list until I am ready.
That means knowing what possible defenses I have,
and knowing that my client is ready, willing and able
to work with me. As you have told me in the past, and
as you put in your letter, you will not talk to me about
the case until ‘after we get a trial date.’ ’’
Given the nature of the working relationship, or lack
thereof, between the defendant and Cosgrove, as illumi-
nated by the defendant’s statements in court and Cos-
grove’s letters, we do not presume that Cosgrove
adequately informed the defendant of the nature of
the charges. As our Supreme Court held in Frye, we
conclude that the court should have ‘‘delve[d] more
deeply into the question of whether the defendant had
sufficient understanding of the nature and complexity
of the charges against him to have the capacity to make
an intelligent waiver of his right to counsel.’’ State v.
Frye, supra, 224 Conn. 262.
The state also asserts that the defendant ‘‘specifi-
cally’’ was informed both of his right to counsel and of
the nature of the charges against him at his arraignment.
The arraignment occurred on August 5, 2011, which
was more than one year prior to the October, 2012
canvass. At arraignment, the court instructed the defen-
dant that he had the right to an attorney.8 Later in that
proceeding, the state provided the factual basis for the
charges.9 We disagree with the state’s argument that
the statements made at the arraignment served to ade-
quately inform the defendant of his right to counsel and
of the nature of the charges against him such that the
court, at the October, 2012 hearing, properly could con-
clude, at least in the unusual circumstances of this case,
that the defendant, at the time of the canvass, was
sufficiently aware of his right to counsel and that he
comprehended the nature of the charges against him.
On August 5, 2011, a court reasonably might have
concluded that the defendant had been clearly advised
of his right to counsel and that he comprehended the
nature of the charges against him. The October, 2012
canvass, however, occurred more than one year later.
In addition to the lack of temporal proximity between
these two events, the defendant’s competence was
called into question between the times of the arraign-
ment and the canvass. On January 4, 2012, the court
was presented with evidence that a psychiatric evalua-
tion team had found the defendant to be incompetent
to stand trial. On April 5, 2012, the court, relying on a
report issued by the psychiatric institution overseeing
the defendant’s treatment, determined that the defen-
dant’s competency had been restored. Even though the
defendant may have been competent during arraign-
ment, we are not persuaded by the state’s contention
that the defendant necessarily should have been found
to understand his rights and that he understood the
charges against him at the October, 2012 proceeding
because of statements made in the defendant’s presence
more than one year earlier—a year in which the defen-
dant had been deemed incompetent to stand trial and
had received extensive treatment for psychiatric issues.
State v. Woods, 158 Conn. App. 231, 118 A.3d 691(2015), presents an analogous set of facts. In that case,
the defendant claimed that the court improperly
accepted his waiver of counsel without establishing,
through the record or a proper canvass, that he under-
stood the range of permissible punishments to which
he could be subjected. The defendant, who had been
released on probation, had failed to timely report to
the Office of Adult Probation. He was arrested and a
violation of probation hearing was scheduled. The case
was continued multiple times. At the hearing, the defen-
dant requested that he be permitted to represent him-
self. During the court’s canvass,10 the defendant
indicated that he did not understand the nature of the
violation of probation charge. Nonetheless, the court
allowed the defendant to represent himself. After the
hearing, the defendant’s probation was revoked. On
appeal, the defendant claimed that the court had abused
its discretion when it permitted him to waive counsel
without establishing that his waiver was made know-
ingly and intelligently because he had not understood
the range of permissible punishments to which he was
exposed. Id., 233–38.
The state in Woods argued that the defendant had
been informed of the range of possible punishments
that he faced from statements the court had made prior
to the defendant’s waiver of counsel. This court con-
cluded, however, that the canvass ‘‘was not a thorough
inquiry sufficient to inform the defendant of his rights
prior to waiver.’’ Id., 243. In one of its arguments, the
state noted that the defendant had reviewed and signed
a probation form that notified him of the possible range
of punishments he faced if he violated his probation.
This court determined that the evidence that the defen-
dant signed the form did not establish that the defendant
‘‘was aware of this information when he later chose to
waive counsel. . . . [M]ore than five and one-half
months had passed between the time he signed the
probation form and the time he waived his right to
counsel. Accordingly, the probation form itself does not
establish that the defendant was aware of the possible
penalties he faced at the time of the hearing. . . . As
we are required to make every reasonable presumption
against waiver of fundamental constitutional rights
. . . we cannot presume that the defendant understood
the penalty for violating probation on the basis of a
form he had reviewed and signed nearly six months
prior to waiving counsel.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) Id., 246.
The present case, in which informative statements
were made to the defendant more than one year before
the waiver canvass—a year in which the defendant had
been declared incompetent—is analogous to Woods.
The state’s argument that the arraignment satisfied the
requirements of Practice Book § 44-3, then, is not per-
suasive. In similar fashion, the state also argues that
the defendant’s arrest warrant detailed the factual alle-
gations against the defendant. The arrest warrant does
not satisfy the requirements of § 44-3 because, like the
statements made at the arraignment that were insuffi-
cient to show knowledge at the time of the canvass,
the arrest warrant was executed and issued too far in
the past to be considered a clear advisement of the
right to counsel at the October, 2012 hearing. The Octo-
ber, 2012 canvass was, therefore, inadequate to estab-
lish that the defendant understood the nature of the
right to counsel and of the charges against him at the
time the court accepted the waiver.
B
We next consider whether the court’s acceptance of
the waiver amounted to structural error, which cannot
be deemed harmless, as the defendant claims, or
whether it was harmless error, as the state claims. We
are persuaded by the state. Although some inadequate
waivers of the right to counsel are not subject to harm-
less error analysis, the unusual facts of this case lead
to an inescapable conclusion of harmlessness.
In his brief, the defendant claims that the inadequate
canvass constituted structural error and therefore was
‘‘per se harmful,’’ notwithstanding the occurrence of the
subsequent February, 2013 canvass. The state contends
that harmless error analysis is appropriate. It argues
that any error in the initial canvass was cured by the
subsequent February, 2013 canvass, and that nothing
of any significance happened in the four months
between the two canvasses.
‘‘Since Chapman v. California, 386 U.S. 18, 87 S. Ct.
824, 17 L. Ed. 2d 705 (1967), the United States Supreme
Court has repeatedly reaffirmed the principle that an
otherwise valid conviction should not be set aside if
the reviewing court may confidently say, on the whole
record, that the constitutional error was harmless
beyond a reasonable doubt. . . . Despite the strong
interests that support the harmless-error doctrine, the
[c]ourt in Chapman recognized that some constitu-
tional errors require reversal without regard to the evi-
dence in the particular case. . . . Errors that are not
subject to harmless error analysis go to the fundamental
fairness of the trial. . . . Structural [error] cases defy
analysis by harmless error standards because the entire
conduct of the trial, from beginning to end, is obviously
affected . . . . Put another way, these errors deprive
defendants of basic protections without which a crimi-
nal trial cannot reliably serve its function as a vehicle
for determination of guilt or innocence . . . and no
criminal punishment may be regarded as fundamentally
fair. . . .
‘‘This court has found error to be structural only
when the error renders a trial fundamentally unfair and
is not susceptible to a harmless error analysis . . . .
For example, in State v. Peeler, 265 Conn. 460, 475–76,
828 A.2d 1216 (2003), cert. denied, 541 U.S. 1029, 124
S. Ct. 2094, 158 L. Ed. 2d 710 (2004), we concluded that
the improper denial of the defendant’s constitutional
right to counsel of choice during the trial was not sub-
ject to harmless error review because it constituted a
fundamental component of the sixth amendment right
to a fair trial. In State v. Murray, 254 Conn. 472, 499,
757 A.2d 578 (2000), we concluded that the improper
substitution of an alternate juror after deliberations
had commenced constituted structural error because
of [t]he inability to assess the effect of this impropriety
on the defendant’s trial . . . . In most cases involving
constitutional violations, however, this court applies
harmless error analysis. See, e.g., State v. Carpenter,
275 Conn. 785, 832–33, 882 A.2d 604 (2005) (admission
of statements in violation of constitutional right to con-
frontation was harmless error), cert. denied, 547 U.S.
1025, 126 S. Ct. 1578, 164 L. Ed. 2d 309 (2006); State
v. Padua, 273 Conn. 138, 166–67, 869 A.2d 192 (2005)
(although improper jury instruction violated due pro-
cess rights, error harmless); State v. Montgomery, 254
Conn. 694, 715–18, 759 A.2d 995 (2000) (admission of
evidence concerning defendant’s silence . . . harm-
less error despite violation of due process rights).’’
(Citations omitted; internal quotation marks omitted.)
State v. Brown, supra, 279 Conn. 504–506.
A review of case law reveals that sixth amendment
deprivations may, in some instances, be susceptible to
harmless error analysis. In State v. Brown, supra, 279
Conn. 493, a probable cause hearing was conducted in
which the defendant was not represented by counsel.
The state agreed that constitutional error resulted. Our
Supreme Court held, however, that the subsequent con-
viction was not invalid as a result of the deprivation
of counsel because the deprivation did not render the
subsequent trial fundamentally unfair and it was suscep-
tible to harmless error analysis. Id., 509–11. The defen-
dant’s counsel obtained a transcript of the proceeding
for use at trial, the defendant was not prejudiced by
his inability to cross-examine a state’s witness at the
hearing,11 and there was no showing of an inability of
counsel to prepare for the subsequent trial. Id., 512–13.
Similarly, in State v. Anderson, 255 Conn. 425, 444–48,
773 A.2d 287 (2001), our Supreme Court held that the
introduction of extrinsic evidence to the jury room does
not evade harmless error review.12 Our Supreme Court
has found error to be structural only when the error
‘‘renders a trial fundamentally unfair and is not suscepti-
ble to a harmless error analysis . . . .’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Latour,
276 Conn. 399, 411, 886 A.2d 404 (2005). The inadequate
canvass in the circumstances of the present case is the
type of error that properly may be subject to harmless
error analysis.13
The defendant claims that during the four month
period between his two canvasses, a ‘‘hypothetical
attorney might have filed unfiled motions, found
unfound witnesses, obtained unobtained discovery,
challenged unchallenged evidence, asked unasked
questions, raised unraised defenses, and so on.’’ Not-
withstanding the actions a ‘‘hypothetical attorney’’
might have taken, the defendant does not identify spe-
cific and unremediable harm that he suffered between
the two canvasses as a result of his not having counsel.14
The second canvass had the effect of affirming the
decision made by the defendant in the first canvass;
the defendant’s intent to waive his right to counsel and
proceed to trial without the assistance of an attorney
thus is clearly established by the record before us.
The adequacy of the February, 2013 canvass is not
disputed by the defendant. For example, the court
clearly conformed this canvass to the requirements of
Practice Book § 44-3 (1). When the court advised the
defendant that ‘‘you do have a right to have a lawyer
represent you,’’ the defendant responded, ‘‘I know that.’’
The court further explained: ‘‘And if you wanted a law-
yer to represent you and you could not afford an attor-
ney, I would make a public defender available to you.’’
In response to the canvass questions, the defendant
repeatedly assured the court that he wanted to proceed
without a lawyer.15 Though the court explained the
drawbacks of electing to proceed without counsel, the
defendant affirmatively asserted his right to represent
himself, as he did in the October, 2012 canvass. At both
canvasses, then, the defendant asserted his right to
represent himself. The court did not infringe upon that
right or prevent him from exercising that right. The
record shows that the defendant, during the thorough
February, 2013 canvass, knowingly and intelligently
waived his right prior to trial.
Any prejudice that the defendant possibly could have
suffered in the presentation of his defense as a result
of the inadequate October, 2012 canvass has not been
identified, even categorically, and does not render the
proceedings so fundamentally unfair as to constitute
one of the ‘‘rare exceptions to the principle that an
otherwise valid conviction should not be set aside if
the reviewing court may confidently say, on the whole
record, that the constitutional error was harmless
beyond a reasonable doubt.’’ (Internal quotation marks
omitted.) State v. Brown, supra, 279 Conn. 511. On the
facts established by this record, we determine that the
infirmity in the first canvass was harmless error.
We conclude, then, that (1) there is no claim of spe-
cific harm; (2) the defendant functionally ratified his
first decision in the second canvass; and (3) there is
no suggestion that, had harm in some way occurred, it
could not have been corrected. There was no fundamen-
tal unfairness, and the claims are susceptible to harm-
less error analysis.
III
Finally, we address the defendant’s claim that the
court improperly charged the jury on the credibility of
witnesses by indicating that the defendant’s interest
in the outcome of the case had to be considered in
evaluating his testimony. The defendant claims that this
instruction undermined the presumption of innocence,
and his right to a fair trial and to testify in his own
defense. We disagree.
We review the defendant’s claim of instructional
impropriety pursuant to the following standard of
review. ‘‘The pertinent test is whether the charge, read
in its entirety, fairly presents the case to the jury in
such a way that injustice is not done to either party
under the established rules of law. . . . Thus, [t]he
whole charge must be considered from the standpoint
of its effect on the [jurors] in guiding them to the proper
verdict . . . and not critically dissected in a micro-
scopic search for possible error. . . . Accordingly, [i]n
reviewing a constitutional challenge to the trial court’s
instruction, we must consider the jury charge as a whole
to determine whether it is reasonably possible that the
instruction misled the jury. . . . In other words, we
must consider whether the instructions [in totality] are
sufficiently correct in law, adapted to the issues and
ample for the guidance of the jury.’’ (Internal quotation
marks omitted.) State v. Medrano, 308 Conn. 604, 623,
65 A.3d 503 (2013).
In the present case, the court instructed the jury as
to the credibility of witnesses as follows: ‘‘You may
believe all, none, or part of any [witness’] testimony.
In making that decision, you may take into account a
number of factors, including: (1) Was the witness able
to see, or hear, or know the things about that witness
testified?; (2) How well was the witness able to recall
and describe those things?; (3) What was the [witness’]
manner while testifying?; (4) Did the witness have a
motive or an interest in the outcome of this case or
any bias or prejudice concerning any party or any matter
involved in the case?; (5) How reasonable was the [wit-
ness’] testimony considered in light of all of the evi-
dence in the case?; (6) Was the [witness’] testimony
contradicted by what that witness has said or done at
another time, or by the testimony of other witnesses
or by other evidence?’’
As to the defendant’s testimony, the court instructed
the jury: ‘‘In this case, the defendant testified. And [an]
accused person having taken the [witness] stand, stands
before you just like any other witness. He is entitled
to the same consideration and must have his testimony
tested and measured by you, by the same factors and
standards as you would judge the testimony of any other
witness. That necessarily involves a consideration of
his interest in the verdict that you will render. You
will consider the importance to him of the outcome of
the trial. You have no right to disregard his testimony
or to disbelieve his testimony merely because he is
accused of a crime. You will consider my earlier instruc-
tions on the general subject matter of credibility that
obviously pertain to the defendant’s testimony as well
as the testimony of any other witness.’’ (Emphasis
added.)
The defendant claims that two sentences in the
court’s instruction regarding the defendant’s interest in
the case improperly ‘‘singled out the defendant and
undermined his rights to a fair trial and to testify in his
own defense, and interfered with the jury’s prerogative
to decide credibility . . . .’’ These sentences read:
‘‘That necessarily involves a consideration of his inter-
est in the verdict that you will render. You will consider
the importance to him of the outcome of the trial.’’ The
defendant relies on State v. Medrano, supra, 308 Conn.
604, which was decided by our Supreme Court two
months after the conclusion of the defendant’s trial in
this case. This reliance is misplaced.
In Medrano, the Supreme Court upheld a challenged
jury instruction which contained similar language to
that which is involved in the present matter: ‘‘In
weighing the testimony of an accused person, you
should apply the same principles by which the testi-
mony of other witnesses is tested. And that necessarily
involves a consideration of [the defendant’s] interest in
the outcome of the case. You may consider the impor-
tance to him of the outcome of the trial.’’ (Emphasis
added; internal quotation marks omitted.) Id., 624.
Despite the defendant’s claim that this instruction sin-
gled him out from other witnesses, the Supreme Court
concluded that the instruction ‘‘was not unduly repeti-
tive, nor did it transcend the bounds of evenhand-
edness.’’ Id., 626. Nevertheless, the court, in an exercise
of its supervisory power, ‘‘direct[ed] our trial courts in
the future to refrain from instructing jurors, when a
defendant testifies, that they may specifically consider
the defendant’s interest in the outcome of the case
and the importance to him of the outcome of the trial.
Instead, we instruct the trial courts to use the general
credibility instruction to apply to a criminal defendant
who testifies.’’ Id.
The defendant urges us to distinguish the Medrano
instruction because that instruction employed ‘‘permis-
sive language’’—‘‘may’’—whereas the present instruc-
tion used ‘‘mandatory language’’—‘‘will.’’ Although the
defendant asserts that Medrano’s holding rests on the
instruction’s use of permissive language as opposed to
mandatory language, there is no reference to or expla-
nation of such a distinction within the decision in that
case. The stated reason for exercising supervisory
authority in Medrano was not a parsing of the language,
but rather the specific singling out of the defendant for
scrutiny. Moreover, as the defendant correctly points
out in his brief, Connecticut courts ordinarily have not
addressed the mandatory/permissive distinction in the
context of jury instructions. Cf. State v. Aponte, 259
Conn. 512, 522, 790 A.2d 457 (2002) (directing future
trial court ‘‘to refrain from instructing jurors that one
who uses a deadly weapon on the vital part of another
‘will be deemed to have intended’ the probable result
of that act and that from such a circumstance the intent
to kill properly may be inferred’’). Finally, the Supreme
Court in Medrano explicitly limited its exercise of
supervisory power to ‘‘trial courts in the future . . . .’’
State v. Medrano, supra, 308 Conn. 631. Nothing in
that decision suggests that its directive, to refrain from
specifically inviting jurors to consider the defendant’s
interest in the outcome of the trial, was to be retroac-
tively applied. The court’s use of its supervisory powers
in Medrano, then, does not apply to the present case,
which concluded two months prior to the Supreme
Court’s decision in Medrano.
In a case cited in Medrano, State v. Williams, 220
Conn. 385, 397, 599 A.2d 1053 (1991), our Supreme Court
upheld jury instructions similar to those at issue in the
present case. In Williams, the trial court emphasized
the defendant’s interest in the outcome of the trial on
three separate occasions, which, the defendant argued,
rendered the instructions less than evenhanded. Our
Supreme Court disagreed because ‘‘[i]n each instance
the trial court prefaced its remarks concerning the
defendant’s interest in the outcome with comments
such as: (1) [y]ou should apply the same principles by
which the testimony of other witnesses are tested; (2)
the accused is entitled to the same consideration and
must have his testimony measured in the same way as
any other witness . . . and (3) you should apply the
same test to it as you did with the other witnesses
. . . .’’ (Internal quotation marks omitted.) Id. The
instructions continually emphasized, despite the chal-
lenged language, that ‘‘the jury was to evaluate the
defendant’s testimony in the same fashion as the testi-
mony of the other witnesses.’’ Id.Similarly, in the present case, the two sentences
charging the jury to consider the defendant’s interest
in the outcome of the trial were preceded and followed
by caveats: ‘‘[The defendant] is entitled to the same
consideration and must have his testimony tested and
measured by you, by the same factors and standards
as you would judge the testimony of any other witness’’;
‘‘You have no right to disregard his testimony . . . .
You will consider my earlier instructions on the general
subject matter of credibility that obviously pertain to
the defendant’s testimony as well as the testimony of
any other witness.’’ Like our Supreme Court in Wil-
liams, we conclude that, considered in the context of
the jury charge as a whole, particularly in light of the
mitigating language surrounding the challenged instruc-
tion, the statements addressing the defendant’s interest
in the outcome of the trial did not violate constitution-
ally protected rights. Although overtly permissive lan-
guage may have been preferable, we do not view the
instructions as a whole to have been unfair or
unbalanced.
The judgment is affirmed.
In this opinion the other judges concurred.
1
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
2
The defendant was acquitted of one count of burglary in the first degree,
pursuant to § 53a-101 (a) (1).
3
We note, in reference to the second and third claims in this appeal, that
the defendant did not argue to the trial court that the October, 2012 canvass
violated his constitutional right to counsel and that he did not take an
exception to the instruction at issue or otherwise preserve his claims for
appellate review. The defendant raised his constitutional arguments for
the first time in his appellate brief. It is a ‘‘bedrock principle of appellate
jurisprudence that [reviewing courts] generally will not review unpreserved
claims made for the first time on appeal.’’ (Internal quotation marks omitted.)
State v. Elson, 311 Conn. 726, 743, 91 A.3d 862 (2014). ‘‘In Elson, [however]
our Supreme Court further stated, ‘[w]e conclude, therefore, that to obtain
review of an unpreserved claim pursuant to State v. Golding, [213 Conn.
233, 239–40, 567 A.2d 823 (1989)], a defendant need only raise that claim
in his main brief, wherein he must present a record that is [adequate] for
review and affirmatively [demonstrate] that his claim is indeed a violation
of a fundamental constitutional right.’ . . . State v. Elson, supra, 754–55.’’
State v. Place, 153 Conn. App. 165, 171 n.6, 100 A.3d 941, cert. denied, 314
Conn. 946, 103 A.3d 977 (2014). Accordingly, we conclude that the defen-
dant’s brief satisfies the test set forth in Elson, and therefore we will review
the two unpreserved claims.
4
For example, Narkewicz testified that ‘‘[the defendant] quite correctly
stated that extradition on a misdemeanor, violation of probation warrant,
was out of the norm. That it could not be effected when he was across
state lines.’’
5
Narkewicz testified that the defendant would have used crack cocaine
at about 2 p.m., if he used it one hour before his arrest. The waiver occurred
at 4:20 p.m.
6
A suspect ought not be entitled unreservedly to ‘‘take back’’ admissions
and render them inadmissible by later stating he had been using drugs at
the time of his waiver. In this case, there was no finding that the defendant
actually had used drugs shortly before the interview.
7
We note that the record indicates that the arraignment occurred on
August 5, 2011, and Cosgrove’s letter was dated May 24, 2012. The canvass
in issue occurred on October 10, 2012, some four and one-half months later.
Further, the record indicates that on June 12, 2012, Cosgrove sent a second
letter to the defendant; this letter informed the defendant that he could ‘‘ask
the judge to let you represent yourself, if you insist on not talking to me,
and he might even allow it.’’ In any event, the record does not show that
the defendant was aware of the general right to counsel at the time of
the canvass.
8
The court stated: ‘‘Now, you have the right to an attorney. If you want
to hire your own attorney, I will give you a reasonable continuance for that
purpose. If you want to apply for the public defender, you may do so,
and then the public defender would decide whether or not they would be
appointed in your case.’’
9
The prosecutor stated: ‘‘[The defendant] took a pipe wrench and slammed
it into the head of the store owner, who is a friend, causing the man to
have a brain bleed. So, he had a laceration in the back of his head, bled
from the front of the brain, was airlifted to Hartford Hospital, lost hearing,
and they’re awaiting to see if there’s other permanent damage based upon
the brain injury. He stole money, fled from the scene, as I stated, and was
found in Massachusetts.’’
10
The court and the defendant in Woods engaged, in relevant part, in the
follow colloquy:
‘‘The Court: . . . And did you understand the nature of the charges here,
the [violation of probation] and what it’s all about?
‘‘[The Defendant]: Not really, Your Honor.
‘‘The Court: You don’t understand—
‘‘[The Defendant]: Not really, I really don’t.
‘‘The Court: You don’t understand the violation of probation? You’ve had
them before in your past.
‘‘[The Defendant]: No. I’ve never been on probation before in my life.
‘‘The Court: So you don’t understand what a violation of probation is?
This might mean I’m going to have to keep your lawyer in.
‘‘[The Defendant]: I don’t—no, I really don’t.
‘‘The Court: Well, I just read to you the two allegations that they’re talking
about here about reporting, about your address and so forth and so on. You
don’t—do you understand that? They’re saying that’s a violation of probation.
‘‘[The Defendant]: Yes, Your Honor, but the problem is that I can’t prove—
I can’t prove that I didn’t violate the probation hearing without calling in.
The guy who talked to me at the conference—video conference, because I
told him specifically that I didn’t have anywhere to stay, so—
‘‘The Court: Okay. This—no, don’t—don’t get lost here. I’m just talking
about do you understand the nature of the charges against you, it’s violation
of probation. You got it?
‘‘[The Defendant]: Yeah. I have a violation of probation, but the dispute—
‘‘The Court: That’s all—that’s all I’m asking—okay.’’ (Internal quotation
marks omitted.) State v. Woods, supra, 158 Conn. App. 236 n.1.
11
Significantly, for the purpose of the present case, the court in Brown
suggested that any prejudice arising from the inability of counsel to cross-
examine was never specifically identified. See State v. Brown, supra, 279
Conn. 512. Similarly, in this case, the defendant specifically identifies no
harm at all.
12
By contrast, if anything occurs in a critical stage of a trial that cannot
later be ameliorated, is conducted in violation of sixth amendment rights,
and is considered fundamentally unfair, then the error is not subject to
harmless error analysis and is therefore labeled structural. See State v.
Jordan, 305 Conn. 1, 23, 44 A.3d 794 (2012); State v. Braswell, 145 Conn.
App. 617, 636, 76 A.3d 231 (2013), aff’d, 318 Conn. 815, 123 A.3d 835 (2015);
State v. Cohens, 62 Conn. App. 345, 352, 773 A.2d 363, cert. denied, 256
Conn. 918, 774 A.2d 139 (2001).
13
Were we to adopt the defendant’s argument that an inadequate canvass
necessarily and without exception constitutes structural error, we would
create an unworkable precedent. For example, if a court inadequately can-
vassed a defendant during a pretrial hearing but realized the following day
that the canvass had not conformed to Practice Book § 44-3 and conducted
a new, valid canvass, the court would be deemed to have committed fatal
structural error. According to the defendant, the remedy for such an error
is a new trial. Yet, in our hypothetical example, there has been no trial
and, pursuant to the defendant’s argument, the inadequate canvass was not
remedied by the subsequent, adequate canvass. The trial court, then, in this
hypothetical example, would not be able to allow the case to continue to
trial because the trial would have been contaminated by the structural
error, nor could the court cure its earlier error. The defendant’s argument
essentially asks this court to eliminate any ability of the trial court to correct
an inadvertent error with a logical and timely remedy.
We note that in the case before us the remedy sought also is illogical.
The defendant seeks, on appeal, the remedy of a new trial. The defendant,
however, already has had a trial after a waiver of counsel that concededly
was adequate.
14
The court did consider several matters in the four month gap between
canvasses. There has been no suggestion that anything harmful occurred
during that time.
15
The defendant stated: ‘‘Yeah, I’m good, I got it’’; ‘‘Yeah, I’m familiar with
everything’’; ‘‘I’m—I checked it out. I got it’’; ‘‘I don’t think I need [standby
counsel].’’ At one point in the canvass, the defendant told the court, ‘‘You’re
turning this into something that is bigger than what it is.’’