State v. Marcus H. ( 2019 )

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STATE OF CONNECTICUT v. MARCUS H.*
(AC 39379)
(AC 40796)
Prescott, Bright and Norcott, Js.
Syllabus
Convicted, after a jury trial, of the crimes of assault in the second degree
with a motor vehicle, risk of injury to a child, reckless endangerment
in the first degree, reckless driving, operating a motor vehicle while
under the influence of intoxicating liquor, interfering with an officer
and increasing speed in an attempt to escape or elude a police officer,
the defendant appealed to this court. During jury selection, the defendant
moved for a continuance to replace his private attorney, W, with another
private attorney. The trial court denied the motion, and the defendant
requested to represent himself. After concluding that the defendant
knowingly and voluntarily had waived his right to counsel, the court
granted his request and appointed W as the defendant’s standby counsel.
The defendant thereafter filed an application for a public defender, but
the public defender’s office concluded that he was not eligible for its
services. Following a hearing, the trial court denied the defendant’s
application for a public defender, implicitly finding that the defendant
was not indigent and, thus, that he was not entitled to a public defender.
The defendant thereafter proceeded with the trial self-represented. After
several days of trial, the state asked the court to raise the defendant’s
bond because he had failed to appear for trial on a previous day. The
court raised the defendant’s bond, and when he was unable to post it,
the defendant was taken into custody by the judicial marshals and was
placed in leg shackles. After a recess, the defendant did not request
that the court order that his shackles be removed for the trial and, when
the trial resumed, he was seated in a manner in which his shackles were
not visible to the jury. The jury, however, briefly could see that he was
wearing shackles on his ankles when he stood up to approach a witness.
The jury was then immediately excused at the prosecutor’s request,
and the court ordered the judicial marshals to remove the defendant’s
shackles. After the jury returned, it was instructed by the court not to
consider the shackles in its deliberations. On the defendant’s appeal to
this court, held:
1. The defendant could not prevail on his claim that the trial court violated
his constitutional right to counsel and, therefore, to due process, by
denying his application for the appointment of a public defender; that
court’s implicit finding that the defendant was not indigent was not
clearly erroneous and was supported by the evidence in the record,
which indicated that the defendant had the financial ability at the time
of his request for a public defender to secure competent legal representa-
tion, as he had obtained a private attorney, W, who was ready, willing
and able to continue to represent him throughout the trial, and the
trial court, therefore, properly denied the defendant’s request for the
appointment of a public defender.
2. The defendant’s unpreserved claim that the trial court violated his constitu-
tional right to due process by failing to order, sua sponte, a judicial
marshal to remove his shackles during the trial was unavailing, the
defendant having failed to demonstrate the existence of a constitutional
violation that deprived him of a fair trial: the defendant did not have a
constitutional right that obligated the trial court to inquire as to whether
he was shackled and to order, sua sponte, that his shackles be removed,
as the defendant’s failure to object to being tried before the jury in
shackles was sufficient to negate the compulsion necessary to establish
a constitutional violation, and his request for the judicial marshals to
remove his shackles was inadequate to alert the court that he wanted
them to be removed; moreover, the defendant was not compelled to
stand trial before the jury while visibly shackled, as he had the option
to remain seated and to request that a marshal bring the court, or any
witnesses, his documents, but, instead, he asked permission to approach
the witness, voluntarily exposing his shackles to the jury, even though
he obviously was aware that he was shackled and that the jury would
be able to observe the shackles, and this court was not persuaded that
the jury’s brief exposure to the defendant in leg shackles, together with
the trial court’s curative instruction, denied the defendant of a fair trial;
furthermore, the defendant’s reliance on the rule of practice (§ 42-46)
that requires the judicial authority to employ reasonable efforts to con-
ceal such restraints from the view of the jurors was unavailing, as the
rules of practice are not a source of constitutional rights for which the
failure to follow establishes a constitutional violation.
Argued January 14—officially released June 4, 2019
Procedural History
Two part substitute information charging the defen-
dant, in the first part, with two counts each of the crimes
of risk of injury to a child and reckless endangerment
in the first degree, and with the crimes of assault in the
second degree with a motor vehicle, reckless driving,
operating a motor vehicle while under the influence of
intoxicating liquor or drugs, operating a motor vehicle
with an elevated blood alcohol content, interfering with
an officer and increasing speed in an attempt to escape
or elude a police officer, and, in the second part, with
previously having been convicted of operating a motor
vehicle while under the influence of intoxicating liquor
or drugs, brought to the Superior Court in the judicial
district of New London, geographical area number ten,
where the court, Jongbloed, J., denied the defendant’s
application for the appointment of a public defender;
thereafter, the first part of the information was tried
to the jury; verdict and judgment of guilty; subsequently,
the defendant was presented to the court on a plea of
guilty to the second part of the information; thereafter,
the court vacated the conviction of operating a motor
vehicle with an elevated blood alcohol content, and
the defendant appealed to this court; subsequently, the
court, Jongbloed, J., issued an articulation of its deci-
sion. Appeal dismissed in AC 39379; affirmed.
Lisa J. Steele, assigned counsel, for the appellant
(defendant).
Jennifer F. Miller, assistant state’s attorney, with
whom, on the brief, were, Michael L. Regan, state’s
attorney, and Sarah Bowman, assistant state’s attorney,
for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Marcus H., appeals
from the judgment of conviction, rendered after a jury
trial, of assault in the second degree with a motor vehi-
cle in violation of General Statutes § 53a-60d, two
counts of risk of injury to a child in violation of General
Statutes § 53-21 (a) (1), two counts of reckless endan-
germent in the first degree in violation of General Stat-
utes § 53a-63, reckless driving in violation of General
Statutes § 14-222, operating a motor vehicle while under
the influence of intoxicating liquor in violation of Gen-
eral Statutes § 14-227a (a) (1), operating a motor vehicle
with an elevated blood alcohol content in violation of
General Statutes § 14-227a (a) (2),1 interfering with an
officer in violation of General Statutes § 53a-167a, and
increasing speed in an attempt to escape or elude a
police officer in violation of General Statutes § 14-223
(b). The defendant claims on appeal that the court
improperly (1) violated his constitutional right to coun-
sel by denying his application for the appointment of
a public defender and (2) violated his constitutional
right to due process when it did not order, sua sponte,
a judicial marshal to remove his leg shackles during
the trial.2 We are not persuaded by the defendant’s
claims and, accordingly, affirm the judgment of con-
viction.3
The jury reasonably could have found the following
facts. In the early morning of May 25, 2014, a motorist
driving behind the defendant observed that his car
remained stopped through two cycles of a stoplight. The
motorist pulled over, exited her car, and approached
the passenger side of the defendant’s car. She observed
the defendant sleeping or unconscious in the driver seat
and two young girls in car seats in the back of the
car. The motorist woke up the defendant, who then
drove off.
Due to concern for the children’s safety, the motorist
called the police and informed them that she thought
that the defendant was intoxicated. On the basis of the
information provided by the motorist, the police station
issued a ‘‘be on the lookout’’ report over their radio
system for a black Acura with a black male operator
and two females in the back seat. Officer Jason Pudvah
saw a car that matched the description from the report
idling at a nearby gas station. Pudvah approached the
car and observed the defendant slumped over in the
driver’s seat and his two and four year old daughters
in the backseat. Pudvah knocked on the window and
spoke with the defendant. After requesting the defen-
dant’s information, Pudvah returned to his vehicle.
While Pudvah was speaking with police dispatch, the
defendant drove off at a high rate of speed.
Pudvah initially pursued the defendant but stopped
due to fear for the children’s safety and in the hope
that the defendant would slow down. Further down the
road, the defendant lost control of his car and crashed
into a telephone pole. The car became airborne and
landed upside down in a residential swimming pool.
As a result of the accident, the defendant’s younger
daughter suffered serious injuries to her arm and his
older daughter sustained an ankle injury.
After the trial, during which the defendant repre-
sented himself, a jury found the defendant guilty of all
charges, and the court rendered judgment in accord-
ance with the verdict. Thereafter, the defendant pleaded
guilty to being a subsequent offender to operating a
motor vehicle while under the influence of intoxicat-
ing liquor in violation of § 14-227a (g) (2). The trial
court, Jongbloed, J., sentenced the defendant to a total
effective term of twenty-three years of incarceration,
execution suspended after fourteen and one-half years,
followed by five years of probation with special condi-
tions. This appeal followed. Additional facts will be set
forth as necessary.
I
The defendant claims that the trial court violated his
constitutional right to counsel and, therefore, to due
process, by denying his application for the appointment
of a public defender. We disagree.
The following additional facts are relevant to this
claim. On the first day of jury selection on February
18, 2016,4 the defendant requested a continuance to
replace his private attorney, Attorney John Williams,
with another private attorney. Specifically, he claimed
that he had a dispute with Attorney Williams regarding
payment of attorney’s fees, and he did not believe that
Attorney Williams would represent him properly. Attor-
ney Williams informed the court that he had ‘‘told [the
defendant] expressly and more than once that under
no circumstances would his [lack of payment] in any
way, shape, or form affect [his] commitment to [the
defendant].’’ The court denied the motion for a continu-
ance and stated that ‘‘[Attorney] Williams is going to
honor his professional obligations under all circum-
stances and represent [the defendant] to the best of
his ability.’’
After the court denied the motion for a continuance,
the defendant requested to represent himself. The court
canvassed the defendant regarding his decision to rep-
resent himself, including inquiring as to whether he
understood the dangers of self-representation. After
concluding that the defendant knowingly and volun-
tarily waived his right to counsel, the court granted
his request. The court then appointed Attorney Williams
as the defendant’s standby counsel. Jury selection
thereafter commenced, with the defendant representing
himself. That afternoon, the defendant applied for a
public defender.
The next day, the court held a hearing on the defen-
dant’s request for appointment of a public defender.
The assistant state’s attorney, the defendant, Attorney
Williams, and Attorney Sean Kelly from the public
defender’s office were present at the hearing. Attorney
Kelly stated that, after reviewing the defendant’s appli-
cation, the defendant was not eligible for their services
and that the Office of the Public Defender did not seek
to be appointed in the case.
The defendant argued that he was financially eligible
for the services of a public defender. Specifically, he
argued that, although he was able to post bonds and
had retained private counsel in the past, his financial
situation had changed so that he had ‘‘the right to free
counsel . . . on the state’s dollar.’’ Attorney Kelly
stated that the public defender’s office considers many
factors when making a decision regarding a defendant’s
eligibility, including whether the defendant is receiving
support from others. After evaluating the defendant’s
application, the public defender’s office concluded that
his circumstances did not warrant appointment of a
public defender.
The defendant initially posted a $25,000 surety bond.
His bond subsequently was increased to a $75,000
surety bond, which he also posted. Therefore, the defen-
dant was not in custody and was living with his mother
at the time he applied for a public defender. Attorney
Kelly noted that the defendant’s ability to post bond
and to obtain private counsel ‘‘shows a pattern where,
if there’s money needed, money comes . . . .’’ The
defendant himself stated that the money from his initial
payment to Attorney Williams came from his mother.
Attorney Kelly also noted that this was the second pri-
vate attorney the defendant had retained in the case
and that the defendant had posted significant bonds on
two prior occasions. These facts taken together led the
public defender’s office to conclude that the defendant
was not indigent.
The defendant responded to Attorney Kelly by stating
that he still owed money to both of his private attorneys
and had balances on both bonds. Finally, he restated
that he believed that Attorney Williams, who was pre-
sent and available to represent him, would be ineffec-
tive. At the conclusion of the hearing, the trial court
denied the defendant’s request. In denying the defen-
dant’s request, the court stated: ‘‘Under all the circum-
stances, [the public defender’s office is] not seeking to
be appointed. I am not going to appoint the public
defender’s office to represent you. We’ll continue your
appearance pro se with standby counsel by Attorney
Williams.’’5 The defendant continued to trial represent-
ing himself, with the assistance of Attorney Williams
as standby counsel.
We begin with the relevant law and standard of review
that govern this claim. Practice Book § 37-6 (a) provides
in relevant part: ‘‘If the judicial authority determines
after investigation by the public defender that the defen-
dant is indigent, the judicial authority may designate
the public defender or a special public defender to
represent the defendant . . . . If the public defender
or his or her office determines that a defendant is not
eligible to receive the services of a public defender, the
defendant may appeal the public defender’s decision
to the judicial authority in accordance with General
Statutes § 51-297 (g). The judicial authority may not
appoint the public defender unless the judicial authority
finds the defendant indigent following such appeal.
. . .’’
Our Supreme Court in State v. Henderson, 307 Conn.
533, 540–41, 55 A.3d 291 (2012), stated: ‘‘[T]he trial
court’s assessment of the defendant’s offer of proof
pertaining to whether he was indigent and was, there-
fore, eligible for state funded . . . assistance, is a fac-
tual determination subject to a clearly erroneous
standard of review. . . . A finding of fact is clearly
erroneous when there is no evidence in the record to
support it . . . or when although there is evidence to
support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mis-
take has been committed. . . .
‘‘It is the duty of the state to provide adequate means
to assure that no indigent [defendant] accused lacks
full opportunity for his defense . . . . The right to legal
and financial assistance at state expense is, however,
not unlimited. Defendants seeking such assistance must
satisfy the court as to their indigency . . . . This has
largely been accomplished through [public defender
services] . . . which has promulgated guidelines that
are instructive as to the threshold indigency determina-
tion. . . .
‘‘[General Statutes §] 51-297 (a) requires the public
defender’s office to investigate the financial status of
an individual requesting representation on the basis of
indigency, whereby the individual must, under oath or
affirmation, set forth his liabilities, assets, income and
sources thereof. . . . [General Statutes §] 51-296 (a)
requires that, [i]n any criminal action . . . the court
before which the matter is pending shall, if it determines
after investigation by the public defender or his office
that a defendant is indigent as defined under this chap-
ter, designate a public defender . . . to represent such
indigent defendant . . . .’’ (Internal quotation marks
omitted.)
Section 51-297 (f) provides in relevant part: ‘‘As used
in this chapter, ‘indigent defendant’ means . . . a per-
son who is formally charged with the commission of a
crime punishable by imprisonment and who does not
have the financial ability at the time of his request for
representation to secure competent legal representa-
tion and to provide other necessary expenses of legal
representation . . . .’’
Here, there is evidence in the record to support the
court’s implicit finding that the defendant was not indi-
gent and, thus, not entitled to the appointment of a pub-
lic defender. The most probative evidence in the record
that the defendant had the financial ability at the time
of his request for a public defender to secure competent
legal representation was that he, in fact, had obtained
a private attorney who was ready, willing, and able to
continue to represent him throughout the trial. On this
fact alone, we conclude that the trial court’s finding that
the defendant was not indigent is not clearly erroneous,
and, thus, this claim warrants no further discussion.6
Accordingly, we conclude that the court properly denied
the defendant’s application for the appointment of a
public defender.7
II
The defendant next claims that the trial court violated
his constitutional right to due process by failing to
order, sua sponte, a judicial marshal to remove his
shackles during the trial. The defendant states that this
aspect of his claim does not implicate the court’s denial
of his motion for a mistrial.8 Instead, he invites this
court to focus on whether the trial court violated his
right to due process by failing to order, sua sponte, that
his shackles be removed. Although this claim is not
preserved because it was not raised to the trial court,
we nevertheless review it under State v. Golding, 213
Conn. 233, 239–40, 567 A. 2d 823 (1989), as modified
by In re Yasiel R, 317 Conn. 773, 781, 120 A.3d 1188(2015).9 We conclude that the trial court, under the
circumstances of this case, did not violate the defen-
dant’s due process rights by failing to order, sua sponte,
that his shackles be removed. Therefore, the defen-
dant’s claim fails under the third prong of Golding,
which requires that he demonstrate that ‘‘the alleged
constitutional violation . . . exists and . . . deprived
the defendant of a fair trial . . . .’’10 Id., 240.
The following additional facts are relevant to this
claim. On Monday, February 29, 2016, after several days
of trial, the state asked the court to raise the defendant’s
bond because he had failed to appear for trial on the
previous Friday. After argument, the court raised the
defendant’s bond to require that he post an additional
$50,000 in cash. The defendant was unable to post the
increased bond, and he, therefore, was taken into cus-
tody by the judicial marshals. The court took a recess,
during which the marshals shackled the defendant.
The record is unclear whether the court knew, at the
time that it returned from the recess, that the defend-
ant was wearing leg shackles. Nevertheless, after the
recess, the defendant did not request that the court
order that his shackles be removed. The defendant did
object, however, to going forward with the trial because
he was not feeling well. The court proceeded with the
trial but granted the defendant permission to remain
seated in order to accommodate any illness.
The trial resumed, and the defendant was seated in
a manner in which his leg shackles were not visible
to the jury.11 At some point, however, the defendant
requested permission to approach a witness. After being
granted permission, the defendant stood up and started
to approach the witness, at which time, the jury briefly
could see that the defendant was wearing shackles on
his ankles. At the request of the prosecutor, the jury
immediately was excused. Once the jury was excused,
the prosecutor requested that the defendant’s shackles
be removed. At this time, the court ordered the judicial
marshals to remove the defendant’s shackles. The
defendant immediately moved for a mistrial. In opposi-
tion to the motion, the prosecutor argued that the defen-
dant knew that the shackles would be visible to the
jury when he stood up and that he could have brought
the issue to the court’s attention.
The court denied the defendant’s motion for a mis-
trial. In denying the motion, the court stated that the
defendant failed to request that the court order that his
shackles be removed. The court also stated that it would
give a limiting instruction regarding the shackles to the
jury upon the defendant’s request. The defendant then
requested a limiting instruction regarding the shackles,
which the court granted. After the jury returned, it was
instructed not to consider the shackles in its delibera-
tions.12 The following day, the defendant renewed his
motion for a mistrial. The prosecutor argued that a
mistrial was not warranted because the jury’s exposure
to the shackles was brief and the court’s response to
the situation was immediate. Further, the prosecutor
stated that the limiting instruction was an appropri-
ate remedy. The court, again, denied the defendant’s
motion.
We begin with a discussion of the law applicable to
the defendant’s claim. ‘‘Central to the right to a fair
trial, guaranteed by the Sixth and Fourteenth Amend-
ments, is the principle that one accused of a crime is
entitled to have his guilt or innocence determined solely
on the basis of the evidence introduced at trial, and
not on grounds of official suspicion, indictment, contin-
ued custody, or other circumstances not adduced as
proof at trial. . . . This does not mean, however, that
every practice tending to single out the accused from
everyone else in the courtroom must be struck down.’’
(Citation omitted; internal quotation marks omitted.)
Holbrook v. Flynn, 475 U.S. 560, 567, 106 S. Ct. 1340,
89 L. Ed. 2d 525 (1986).
‘‘As a general proposition, a criminal defendant has
the right to appear in court free from physical restraints.
. . . Grounded in the common law, this right evolved
in order to preserve the presumption favoring a criminal
defendant’s innocence, while eliminating any detrimen-
tal effects to the defendant that could result if he were
physically restrained in the courtroom. . . . The right
to a fair trial is a fundamental liberty secured by the
Fourteenth Amendment. . . . The presumption of
innocence, although not articulated in the Constitution,
is a basic component of a fair trial under our system
of criminal justice. . . . In order to implement that pre-
sumption, courts must be alert to factors that may
undermine the fairness of the factfinding process. In the
administration of criminal justice, courts must carefully
guard against dilution of the principle that guilt is to
be established by probative evidence and beyond a rea-
sonable doubt. . . . Put another way, for the presump-
tion to be effective, courts must guard against practices
which unnecessarily mark the defendant as a dangerous
character or suggest that his guilt is a foregone conclu-
sion.’’ (Citations omitted; internal quotation marks
omitted.) State v. Woolcock, 201 Conn. 605, 612–13, 518
A.2d 1377 (1986).
‘‘In order for a criminal defendant to enjoy the maxi-
mum benefit of the presumption of innocence, our
courts should make every reasonable effort to present
the defendant before the jury in a manner that does
not suggest, expressly or impliedly, that he or she is a
dangerous character whose guilt is a foregone conclu-
sion. . . . The negative connotations of restraints, nev-
ertheless, are without significance unless the fact of the
restraints comes to the attention of the jury.’’ (Internal
quotation marks omitted.) State v. Brawley, 321 Conn.
583, 588, 137 A.3d 757 (2016).
In Deck v. Missouri, 544 U.S. 622, 626, 125 S. Ct. 2007,
161 L. Ed. 2d 953 (2005), the United States Supreme
Court stated that ‘‘[t]he law has long forbidden routine
use of visible shackles during the guilt phase [of a
criminal trial] . . . .’’ (Emphasis added.) The court fur-
ther noted that ‘‘[c]ourts and commentators share close
to a consensus that, during the guilt phase of a trial, a
criminal defendant has a right to remain free of physi-
cal restraints that are visible to the jury; that the right
has a constitutional dimension; but that the right may
be overcome in a particular instance by essential state
interests such as physical security, escape preven-
tion, or courtroom decorum.’’ (Emphasis added.) Id.,
628. Furthermore, the court held that ‘‘the Fifth and
Fourteenth Amendments prohibit the use of physical
restraints visible to the jury absent a trial court determi-
nation, in the exercise of its discretion, that they are
justified by a state interest specific to a particular trial.’’
(Emphasis added.) Id., 629.
Turning to the defendant’s claim, he argues that,
because the court knew that he was taken into custody
on the morning of February 29, 2016, it should have
determined whether he was shackled in the courtroom
and then ordered that the shackles be removed before
the jury entered. The defendant’s claim that he had a
constitutional right obligating the trial court to inquire,
sua sponte, whether he was shackled is misplaced in
light of well established law.13 Whether the defendant
was or was not shackled, however, is not the critical
question. Instead the critical question for purposes of
the defendant’s constitutional claim is whether the
defendant was unnecessarily compelled to stand trial
before a jury while visibly shackled.
This case is analogous to Estelle v. Williams, 425 U.S.
501, 502, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976), in which
the respondent claimed that his right to due process
was violated because he was tried before a jury while
wearing prison attire. Prison attire implicates the same
due process concerns as shackles, as they both may
have an erosive effect on the defendant’s presumption
of innocence. See State v. Rose, 305 Conn. 594, 622, 46
A.3d 139 (2012) (Zarella, J., dissenting) (‘‘A juror might
associate prison attire with an increased likelihood that
the defendant had committed the crime. In that sense,
the harm is similar to that caused by requiring a defen-
dant to remain visibly shackled . . . .’’).
In Estelle, the record was ‘‘clear that no objection
was made to the trial judge concerning the jail attire
either before or . . . during the trial.’’ Estelle v. Wil-
liams, supra, 425 U.S. 509–10. The court noted that the
respondent had raised this issue with the jail attendant
prior to trial, but not to the trial judge. Id., 510. The
court held that ‘‘although the State cannot, consistently
with the Fourteenth Amendment, compel an accused
to stand trial before a jury while dressed in identifiable
prison clothes, the failure to make an objection to the
court as to being tried in such clothes, for whatever
reason, is sufficient to negate the presence of compul-
sion necessary to establish a constitutional violation.’’
(Emphasis added.) Id., 512–13. Further, the court in
Estelle held that the trial court was not obligated to
inquire of the respondent or his counsel regarding
whether he was deliberately choosing to be tried while
wearing prison attire. Id., 512. Therefore, the court
found no constitutional violation and reversed the judg-
ment that had set aside the respondent’s conviction.
Id. The court in Estelle noted that ‘‘the courts have
refused to embrace a mechanical rule vitiating any
conviction, regardless of the circumstances, where
the accused appeared before the jury in prison garb.
Instead, they have recognized that the particular evil
proscribed is compelling a defendant, against his will,
to be tried in jail attire.’’ Id., 507.
In the present case, the defendant never requested
that the court order the judicial marshals to remove
his shackles. Therefore, as in Estelle, the defendant’s
constitutional right to due process was not violated
because the defendant’s failure to make an objection
to the court was sufficient to negate the compulsion
necessary to establish a constitutional violation. The
present case is readily distinguishable from those relied
on by the defendant in which the respective courts
affirmatively ordered, or refused to remove after objec-
tion, restraints or prison attire.14
The defendant definitively knew that he was shack-
led, yet, he did not request that the court order that the
judicial marshals remove his shackles. The defendant
argues that he asked the judicial marshals to remove
his shackles. That request, however, was inadequate to
alert the court that he wished to have his shackles
removed.15 Once the trial resumed after the defendant
was taken into custody, he was seated in a manner in
which his shackles were concealed. At this point, the
defendant had the opportunity to request the court to
order that his shackles be removed but failed to do so.
The defendant also had the option to remain seated
and request that a marshal bring the court, or any wit-
nesses, his documents. The defendant had, in fact,
utilized the judicial marshals to hand documents to
the court earlier that day. Instead, the defendant
asked permission to approach the witness, voluntarily
exposing his shackles to the jury. When the defendant
approached the witness, he obviously was aware that
he was shackled and that the jury would be able to
observe the shackles.16
Additionally, the defendant has not provided any case
law that stands for the proposition that a defendant’s
right to due process is violated if the jury is briefly
exposed to facts that would lead it to believe that the
defendant is in custody. In the present case, when the
defendant revealed to the jury that he was shackled,
the prosecutor immediately requested that the jury be
excused. Once the jury was excused, the court ordered
the judicial marshals to remove the defendant’s shack-
les. Therefore, the shackles were visible to the jury for
only a brief period of time. Upon the jury’s return to
the courtroom, the court gave a curative instruction
regarding the shackles, the adequacy of which the
defendant has not challenged.
Our conclusion that the jury’s brief exposure to the
defendant in shackles did not violate his constitutional
rights is supported by authority from other jurisdic-
tions. For example, in Ghent v. Woodford, 279 F.3d
1121, 1132 (9th Cir. 2002), a defendant claimed that his
constitutional right to due process was violated because
he was physically restrained by the state in the presence
of the jury. Specifically, jurors saw the defendant in the
hallway at the entrance to the courtroom in handcuffs
and other restraints. Id., 1133. The reviewing court
stated that ‘‘[t]he jury’s ‘brief or inadvertent glimpse’ of
a shackled defendant is not inherently or presumptively
prejudicial, nor has [the defendant] made a sufficient
showing of actual prejudice.’’ Id.Additionally, in United States v. Jones, 468 F.3d 704,
706 (10th Cir. 2006), a defendant claimed that his right
to due process was violated because a juror briefly saw
him in leg shackles during the afternoon break on the
second day of trial. The court held that there was no
due process violation and stated that, ‘‘[i]n itself, a
juror’s brief view of a defendant in shackles does not
qualify as a due process violation worthy of a new trial.’’
Id., 709.
We agree with the courts in Ghent and Jones, that a
jury’s brief or inadvertent glimpse of a shackled defen-
dant is not inherently or presumptively unconstitu-
tional. Unlike cases in which the defendant was ordered
to remain shackled throughout the entirety of the trial,
here, the exposure lasted for only a brief period of time.
We are not convinced that the brief exposure to the
jury of the defendant with shackles on his ankles, paired
with a curative instruction, denied the defendant of a
fair trial.
Finally, we are not persuaded by the defendant’s reli-
ance on Practice Book § 42-46,17 which provides that
reasonable efforts shall be employed to conceal such
restraints from the view of the jurors. See footnote 17
of this opinion. The rules of practice, however, are not
a source of constitutional rights, for which the failure
to follow establishes a constitutional violation. See Gen-
eral Statutes § 51-14 (a) (noting that rules of practice
and procedure ‘‘shall not abridge, enlarge or modify
any substantive right’’).
In conclusion, we are not persuaded that the defen-
dant had a constitutional right obligating the court to
order, sua sponte, that his shackles be removed. Fur-
thermore, we are not convinced that the defendant was
compelled to stand trial before a jury while visibly
shackled. Accordingly, the defendant has not demon-
strated that a constitutional violation exists and that
he was deprived of a fair trial.
The judgment in AC 40796 is affirmed; the appeal in
AC 39379 is dismissed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of the crime of risk of injury to a child, we decline to identify the
victims or others through whom the victims’ identities may be ascertained.
See General Statutes § 54-86e.
1
The court vacated the conviction of operating a motor vehicle with an
elevated blood alcohol content in violation of § 14-227a (a) (2), and sentenced
the defendant on the conviction of operating a motor vehicle while under
the influence of intoxicating liquor in violation of § 14-227a (a) (1). See State
v. Lopez, 177 Conn. App. 651, 668–69, 173 A.3d 485 (2017) (‘‘[t]he legislative
history reflects that the two subdivisions of § 14-227a (a) describe alternative
means for committing the same offense of illegally operating a motor vehicle
while under the influence of intoxicating liquor or drugs’’), cert. denied, 327
Conn. 989, 175 A.3d 563 (2017).
2
The petitioner appears to predicate his claims on the fifth, sixth, and
fourteenth amendments to the United States constitution and article first, § 8,
of the Connecticut constitution. Because he has not provided an independent
analysis of his state constitutional claims under State v. Geisler, 222 Conn.
672, 684–86, 610 A.2d 1225 (1992), we deem them abandoned. See, e.g.,
Barros v. Barros, 309 Conn. 499, 507 n.9, 72 A.3d 367 (2013) (‘‘we will not
entertain a state constitutional claim unless the defendant has provided an
independent analysis under the particular provisions of the state constitution
at issue’’ [internal quotation marks omitted]). Accordingly, we analyze the
defendant’s claims under the federal constitution only.
3
The defendant filed AC 39379 before the imposition of his sentence.
Practice Book § 61-6 (a) (1) provides in relevant part: ‘‘The defendant [in a
criminal case] may appeal from a conviction for an offense when the convic-
tion has become a final judgment. The conviction becomes a final judgment
after the imposition of sentence. . . .’’ See also State v. Fielding, 296 Conn.
26, 36, 994 A.2d 96 (2010) (‘‘[i]n a criminal proceeding, there is no final
judgment until the imposition of a sentence’’ [internal quotation marks
omitted]). Accordingly, we dismiss the appeal in AC 39379 for lack of a final
judgment. In any event, all of the issues that were raised in AC 39379 are
addressed in this opinion.
4
Jury selection originally occurred on October 14 and 15, 2015. On Novem-
ber 16, 2015, however, the court granted a motion for a competency evalua-
tion of the defendant. On the basis of the evaluation, the court found that
the defendant was competent to stand trial. Due to the evaluation, the trial
was postponed and a second jury selection occurred on February 18, 19,
and 22, 2016.
5
Although the court did not explain why it concluded that the defendant
was not entitled to a public defender, it appears that, on the basis of the
arguments presented to it, it implicitly found that the defendant was not
indigent.
6
Because we conclude that the trial court’s finding that the defendant
had the requisite ability to obtain private counsel was not clearly erroneous
on the basis of the fact he previously had done so, we need not reach
the defendant’s assertion that the public defender’s office should not have
considered the resources of the defendant’s family in determining that he
was ineligible for the services of a public defender.
7
Even if the defendant had established his indigency, the court would
not have been obligated to replace Attorney Williams with a public defender.
See Sekou v. Warden, 216 Conn. 678, 686, 583 A.2d 1277 (1990) (criminal
defendant’s right to counsel of choice does not grant defendant an unlimited
opportunity to obtain alternative counsel on eve of trial). Under the circum-
stances of this case, the defendant’s sixth amendment right to counsel
could not have been violated when competent counsel, Attorney Williams,
appeared with the defendant for trial and was fully prepared to represent the
defendant through the conclusion of the trial. Furthermore, the defendant’s
application for a public defender was not filed in order to secure any particu-
lar attorney of the defendant’s choosing but merely sought to get someone
other than Attorney Williams. A defendant’s dissatisfaction with counsel on
the eve of trial or a disagreement over trial strategy does not entitle a
defendant to the appointment of new counsel. State v. Morico, 14 Conn.
App. 144–45, 539 A.2d 1033, cert. denied, 208 Conn. 812, 546 A.2d 281 (1988).
Whether to allow a defendant to replace counsel in such circumstances is
left to the sound discretion of the trial court. Id.8
The defendant notes in his appellate brief, however, that if we were to
disagree with his due process claim, then ‘‘[we] would reach the issue of
whether a mistrial should have been granted once the shackles became
obvious.’’ This sentence is the only mention within the defendant’s main
brief of this claim regarding the propriety of the court’s denial of his motion
for a mistrial. He makes no mention of it in his reply brief. Moreover,
this claim is not accompanied by any supporting arguments or citations
to relevant authority. Therefore, this claim is inadequately briefed by the
defendant, and we decline to review it. See In re Elijah C., 326 Conn. 480,
495, 165 A.3d 1149 (2017) (‘‘Ordinarily, [c]laims are inadequately briefed
when they are merely mentioned and not briefed beyond a bare assertion.
. . . Claims are also inadequately briefed when they . . . consist of conclu-
sory assertions . . . with no mention of relevant authority and minimal or
no citations from the record . . . .’’ [Internal quotation marks omitted.]);
see also Connecticut Light & Power Co. v. Dept. of Public Utility Control,
266 Conn. 108, 120, 830 A.2d 1121 (2003) (appellate courts ‘‘are not required
to review issues that have been improperly presented . . . through an inade-
quate brief’’ [internal quotation marks omitted]).
9
The defendant argues that his due process claim is preserved by his
motion for a mistrial, or alternatively, that it is reviewable pursuant to State
v. Golding, supra, 213 Conn. 233. We disagree that his due process claim
as framed on appeal was preserved by his motion for a mistrial because he
never claimed in his motion that the court had an obligation to order, sua
sponte, that his shackles be removed. Nevertheless, because his claim is
arguably of constitutional magnitude, we review it pursuant to Golding.
Under Golding, ‘‘a defendant can prevail on a claim of constitutional error
not preserved at trial only if all of the following conditions are met: (1) the
record is adequate to review the alleged claim of error; (2) the claim is of
constitutional magnitude alleging the violation of a fundamental right; (3)
the alleged constitutional violation . . . exists and . . . deprived the defen-
dant of a fair trial; and (4) if subject to harmless error analysis, the state
has failed to demonstrate harmlessness of the alleged constitutional violation
beyond a reasonable doubt. In the absence of any one of these conditions,
the defendant’s claim will fail. The appellate tribunal is free . . . to respond
to the defendant’s [Golding] claim by focusing on whichever condition is
most relevant in the particular circumstances.’’ (Emphasis in original; foot-
note omitted.) Id., 239–40.
10
Because we review the defendant’s claim under Golding we need not
undergo plain error analysis. See State v. Abraham, 64 Conn. App. 384, 408,
780 A.2d 223 (‘‘[b]ecause this claim is unpreserved, our review is limited to
either plain error review; see Practice Book § 60-5; or review pursuant to
the Golding doctrine’’), cert. denied, 258 Conn. 917, 782 A.2d 1246 (2001).
We also decline the defendant’s invitation to exercise our supervisory author-
ity over the administration of justice.
11
Although the court did not make any specific factual finding regarding
the visibility of the defendant’s shackles while he remained seated, the
defendant states in his brief that the shackles became visible only when he
stood up and began to approach the witness.
12
The court stated: ‘‘Ladies and gentlemen, I’m just going to give you a
brief instruction. You may have noticed that the defendant did have on
shackles as he walked out to show a document, to have a document marked
for identification, and let me just indicate to you that I am instructing you
that you’re not to speculate as to any reasons for that and it’s nothing that
should factor into your deliberations and nothing that should be considered
by you in any way.’’
13
Although it may have been a ‘‘best practice’’ for the court to have
inquired, sua sponte, whether the defendant in fact was shackled after he
failed to post the increased bond, the defendant has not persuaded us that
it was constitutionally required to make such an inquiry.
14
See State v. Brawley, supra, 321 Conn. 583 (trial court ordered that
defendant be shackled during trial); State v. Rose, supra, 305 Conn. 599(trial court compelled defendant to stand trial in identifiable prison clothing
and shackles); State v. Shashaty, 251 Conn. 768, 799, 742 A.2d 786 (trial
court ordered that defendant remain in shackles during jury selection and
trial), cert. denied, 529 U.S. 1094, 120 S. Ct. 1734, 146 L. Ed 2d 653 (1999);
State v. White, 229 Conn. 125, 144–46, 640 A.2d 572 (1994) (trial court
ordered that defendant be shackled during trial, ‘‘acquiescing’’ to sheriff’s
recommendation without analysis or justification); State v. Williams, 195
Conn. 1, 9–10, 485 A.2d 570 (1985) (trial court ruled that defendant remain
in leg restraints during course of jury selection).
15
The defendant argues that the trial court’s inaction constituted ‘‘tacit
acceptance’’ of the judicial marshal’s actions and is the equivalent of an
affirmative shackling order. See State v. White, 229 Conn. 125, 144–46, 640
A.2d 572 (1994). In White, our Supreme Court held that the trial court
improperly had ‘‘acquiesced’’ in the judicial marshal’s recommendation to
shackle the defendants. Id., 146. In White, however, the defendants specifi-
cally requested that the court order their shackles removed, and the court
denied their request. Id., 144. Further, the defendants renewed their objection
to the court on several occasions and filed affidavits before and after the
trial regarding their complaints. Id., 145–46. Therefore, White wholly is
distinguishable from the present case. Additionally, in Estelle v. Williams,
supra, 425 U.S. 510, the respondent made a request regarding his prison
attire to a jail attendant, which was not sufficient to notify the court of
his request.
16
When the defendant was canvassed by the court regarding his decision
to represent himself, he stated that he understood the dangers and disadvan-
tages of self-representation. One such risk was his lack of understanding
as to how to raise properly the question of whether the shackles should be
removed so that they would not be visible to the jury when he approached
a witness.
17
Practice Book § 42-46 provides the court with a statutory framework
when making a determination to employ reasonable means of restraint on
a defendant. Practice Book § 42-46 provides: ‘‘(a) Reasonable means of
restraint may be employed if the judicial authority finds such restraint
reasonably necessary to maintain order. If restraints appear potentially nec-
essary and the circumstances permit, the judicial authority may conduct an
evidentiary hearing outside the presence of the jury before ordering such
restraints. The judicial authority may rely on information other than that
formally admitted into evidence. Such information shall be placed on the
record outside the presence of the jury and the defendant given the opportu-
nity to respond to it.
‘‘(b) In ordering the use of restraints or denying a request to remove them,
the judicial authority shall detail its reasons on the record outside the
presence of the jury. The nature and duration of the restraints employed
shall be those reasonable necessary under the circumstances. All reasonable
efforts shall be employed to conceal such restraints from the view of the
jurors. Upon request, the judicial authority shall instruct the jurors that
restraint is not to be considered in assessing the evidence or in the determina-
tion of the case.’’