DocketNumber： 11569
Judges： Healey
Filed Date： 9/3/1985
Status： Precedential
Modified Date： 11/3/2024
This appeal involves various aspects of a criminal defendant’s right to self-representation at trial, including whether he has a right to hybrid representation. On August 22, 1980, the defendant was charged by an information with tampering with a witness in violation of General Statutes § 53a-151. After entering a plea of not guilty to the charge, he was tried by a jury and found guilty.
On appeal, he raises claims that the trial court erred in that it: (1) caused him to conduct a portion of his trial alone without first obtaining a valid waiver of his state and federal constitutional right to the assistance of counsel; (2) violated his state constitutional right to hybrid representation when his request to proceed as co-counsel was denied; (3) expressly restricted the role of his standby counsel in violation of Practice Book § 964; and (4) violated Practice Book § 632 in originally granting his defense counsel’s motion to withdraw. We find no error.
Some elaboration of the pertinent pretrial proceedings is necessary for disposition of the defendant’s appeal. Subsequent to being charged with the present offense, the defendant applied for and was found eligible to receive the services of a public defender. Attorney Judith Hoberman was appointed to represent him. Upon his plea of not guilty and election of trial by jury, the defendant’s case was assigned for trial on December 11, 1980.
Prior to the voir dire of the prospective jurors, the trial court was informed by Hoberman that the defendant had “expressed” to her “an interest to conduct a
The trial court then cautioned the defendant of the dangers of self-representation. Specifically, the trial court advised the defendant of the gravity of the offense with which he was charged, that if convicted he faced a possible sentence of up to five years of imprisonment, and that “a trial, particularly a trial to the jury, is going to require a very real degree of expertise to be properly conducted.” In explaining the latter point, the court cited the expertise needed to argue intelligently about the admissibility of evidence.
The defendant’s response to the court’s statements was: “What you said is quite true — As a matter of fact absolutely true, but what you don’t understand is that my counsel — I discussed with my counsel the case and she is just not going to submit things that I want submitted, that I feel need to be submitted, to the jury to understand what’s fully going on here.” Upon the court’s suggestion that, because of his counsel’s “expertise,” a decision not to develop “certain things” may have been necessary “under the rules of evidence,” the defendant declared: “Oh, yes they can be brought out and they will be brought out if I have anything to say about this. I am the one being accused. They drag me in here, accuse me and there’s no way I can see myself sitting here not saying anything in my defense.”
Hoberman then renewed her motion to withdraw. The trial court expressly asked the defendant whgther he realized that he was “entitled to be represented,” to which the defendant answered, “[r]ight.” The trial court asked the defendant whether he “realizefd] that this can run into a lot of technicalities, in the course
The trial court then proposed that if the defendant filed “a pro se appearance” the court would grant Hoberman’s motion to withdraw but would also order her “to remain in attendance as standby counsel.”
The defendant thereafter presented his opening statement to the jury panel, in which he represented that he was a student “at Yale College with the Special Division Program,” and he personally conducted the voir dire during jury selection. Just prior to the presentation of evidence, the defendant orally moved to dismiss the charges against him on the ground that there was “no probable cause in the first place to arrest me.” During the hearing on this motion, the defendant, as he asserts in his brief, “requested that his counsel be re-appointed and withdrew his appearance.”
I
We address first the defendant’s claim that the trial court “caused him to conduct a portion of his trial alone without first obtaining a valid waiver” of his state and federal constitutional right to assistance of counsel. Specifically, the defendant argues that, because the “waiver” of his right to counsel should be held invalid on the ground that the record does not clearly demonstrate that he made “an unequivocal request to represent himself,” he is entitled to an automatic reversal of his conviction in that he had represented himself during a portion of the proceedings when the right to counsel had attached.
The state does not dispute that the defendant had a state and federal constitutional right to assistance of counsel during both the voir dire of the prospective jurors and the pretrial hearing on the defendant’s pro se motion to dismiss. In State v. Gethers, 193 Conn. 526, 480 A.2d 435 (1984), it is implicit that the court viewed the right to counsel as having attached during the stage of the proceeding involved in the voir dire of prospective jurors. Id., 532-33. This court also regards the voir dire under Connecticut law as “an
A criminal defendant is guaranteed the right to assistance of counsel under both the federal; see Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); and the state constitutions. See State v. Gethers, supra, 533. A criminal defendant also has the right to appear pro se in a state criminal trial “when he voluntarily and intelligently elects to do so.” Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); see also State v. Gethers, supra, citing Lyles v. Estelle, 658 F.2d 1015, 1020 (5th Cir. 1981); see generally annot., 98 A.L.R.3d 13 (1980). The court in Faretta stated the rule as follows: “When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must ‘knowingly and intelligently’ forego those relinquished benefits. Johnson v. Zerbst, 304 U.S. [458, 464-65, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938)]. Cf. Von Moltke v. Gillies, 332 U.S. 708, 723-24, 68 S. Ct. 316, 92 L. Ed. 309 [1948] (plurality opinion of Black, J.). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with
In reciting the circumstances of that case, the Faretta court noted that: “Here, weeks before trial, Faretta clearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel.” Faretta v. California, supra, 835. Some courts have extrapolated from this language a further requirement that the defendant’s request to proceed pro se must be clear and unequivocal;
The defendant argues, and we agree, that the gist of his initial dialogue with the trial court, “accurately construed,” was a request to act as co-counsel along with his court-appointed attorney. The defendant’s request for hybrid representation was denied by the trial court, and we agree that this type of request should not be considered as a request to proceed pro se. See Raulerson v. Wainwright, supra, 808; United States v. Bennett, supra, 49. We note that the defendant’s court-appointed counsel expressed clearly her lack of willingness to serve as co-counsel with the defendant,
The trial court, faced on the first scheduled day of trial with a defendant requesting a status to which he had no legal right; see Part II, infra; and a motion to withdraw from an attorney whom the defendant considered to be a “very good lawyer,” scrupulously attempted to accommodate the defendant’s desire to participate actively in conducting his defense within constitutional parameters.
If the trial court has first made appropriate inquiries regarding the defendant’s choice of representation, “the court can then properly insist that the defendant choose between representation by his existing counsel and proceeding pro se.” United States v. Welty, 674 F.2d 185, 188 (3d Cir. 1982). “A criminal defendant may be asked, in the interest of orderly procedures, to choose between waiver and another course of action as long as the choice presented to him is not constitutionally offensive.” Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir. 1976). In the present case, the trial court heard statements from both the defendant and his counsel regarding their difference of opinion. The trial court then inquired of the defendant regarding the criteria for an effective waiver. See footnote 2, supra. “When a defendant is faced with the choice of proceed
First, the trial court expressly advised the defendant of his right to be represented by counsel. Second, the trial court warned the defendant at length about the dangers of self-representation. Third, the defendant was apprised of the nature of the proceedings against him, and of the potential exposure to punishment. See footnote 2, supra; see also State v. Gethers, supra, 537 (the trial court “may appropriately presume that defense counsel has explained the nature of the offense in sufficient detail”); cf. State v. Barker, 35 Wash. App. 388, 393-94, 667 P.2d 108 (1983). Fourth, the defendant actively participated in the colloquies involved, which were both informative and lively. Fifth, the trial court had extensive opportunities to see, hear and evaluate the defendant’s intelligence and perceptions. On this record
The defendant also claims that the trial court erred by denying him the right to hybrid representation that he contends is guaranteed by article first, § 8, of the constitution of the state of Connecticut. The key portion of that provision declares that “[i]n all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . . . .” Conn. Const., art. I § 8.
The defendant premises his hybrid representation claim on the state rather than the federal constitution.
The defendant essentially argues that the plain meaning of the pertinent clause of article first, § 8, compels the conclusion that the right to hybrid representation is one guaranteed by our state constitution. Again, the constitutional language, which is the focus of this claim on appeal, provides that “[i]n all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . . . .” (Emphasis added.) Conn. Const., art. I § 8. The defendant argues that the framers’ use of the conjunctive “and” rather than the disjunctive “or” and the application of the phrase “to be heard” supports his position.
In his brief, the defendant maintains the plain language of article first, § 8, “clearly suggests that the right the framers sought to protect was the right of a criminal accused to present his case as co-counsel with his retained or appointed attorney, should he so desire.” (Emphasis in original.) We have previously noted, however, that “[similar provisions in other states have not been construed to entitle an accused as a matter of right to be heard by both himself and by counsel.” State v. Carr, 172 Conn. 458, 475, 374 A.2d 1107 (1977). Constitutional framers’ selection of the word “and” in comparable “right to be heard” provisions in other jurisdictions has been held not to encompass a state constitutional guarantee: to “a right to representation and self-representation simultaneously”; Hooks v. State, 416 A.2d 189, 199 (Del. 1980); to “simultaneous enjoyment” of “these two basic rights”; State v. Burkhart, 541 S.W.2d 365, 369 (Tenn. 1976); “to have his case presented in court by both himself and counsel acting at
In sum, we are not persuaded that the framers’ use of the conjunctive in article first, § 8, manifests an intent to guarantee hybrid representation. “ ‘If the
The Borino rule also assists in our analysis of the phrase, “right to be heard,” in § 8 of article first. Historical background, where there is ambiguity, may be utilized as a proper tool to discern the framers’ intent in drafting the language of constitutional provisions; see Cologne v. Westfarms Associates, supra; or of legislative enactments. See Perille v. Raybestos-ManhattanEurope, Inc., 196 Conn. 529, 494 A.2d 555 (1985). Constitutional interpretation can be “necessarily influenced” by recognition of a provision’s historical roots, including its English common law antecedents. Borino v. Lounsbury, supra, 629; see Faretta v. California, supra, 821-22. Our examination of the historical background of article first, § 8, discloses that there are two related yet separate legal developments that may have culminated in the original adoption of this provision of the first Connecticut constitution in 1818.
First, the independent right of an individual accused of the commission of a crime to self-representation had evolved. See generally Faretta v. California, supra. “[U]nder the ancient English common law a person on trial for a felony was not allowed counsel and was not a competent witness in his own behalf.” State v. Carr, supra, 473. In cases involving other crimes that were prosecuted in the Star Chamber, a defendant was compelled “to accept representation by counsel whose object was to avoid the disapprobation which would follow if anything in the defendant’s answer to the indictment offended the Crown.” Hooks v. State, supra, 199; see also Faretta v. California, supra, 821-23. During interrogation conducted in the Star Chamber, the
Historically, “[i]n the American Colonies the insistence upon a right of self-representation was, if anything, more fervent than in England.” Faretta v. California, supra, 826. As a general proposition, the scope of the right to counsel in early colonial times was probably limited, just as it had been in England. See note, 57 B.U.L. Rev., supra, 578. Because lawyers in colonial America were identified with the Crown, distrust of lawyers was institutionalized as several colonies, including Connecticut, initially “prohibited pleading for hire in the 17th century.” Faretta v. California, supra, 827 and n.32.
Thus, by the time of the adoption of our first state constitution in 1818, a defendant in a criminal case had the right to present a defense, including one by counsel, if he so chose. Under the rationale as espoused by the recent illustrative decision in Hooks v. State, supra, our constitutional provision guaranteeing “a right to be heard by himself and by counsel”
The second development in the law involved the competency of a criminal defendant to testify on his own behalf at trial. The ancient common law rule was “that a person charged with a criminal offense is incompetent to testify under oath in his own behalf at his trial.” Ferguson v. Georgia, 365 U.S. 570, 81 S. Ct. 756, 5 L. Ed. 2d 783 (1961). In our examination of the English common law system, we have already indicated that after the English revolution the defendant was permitted to argue on his own behalf at trial. Faretta v. California, supra, 823-24. “In the process the defendant could offer by way of explanation material that would later be characterized as testimony. . . . In the seventeenth century, however, he was allowed to call witnesses in his behalf; the right to have them sworn was accorded by statute for treason in 1695 and for all felony in 1701. 7 Will. Ill, c. 3; 1 Anne, St. 2, c. 9. ... A distinction was drawn between the accused and his witnesses — they gave evidence but he did not. . . . The general acceptance of the interest rationale as a basis for disqualification reinforced this distinction, since the criminal defendant was, of course, par excellence an interested witness.” (Emphasis in original.) Ferguson v. Georgia, supra, 574.
This rule was the law in Connecticut when the state constitution was adopted: “It is a general rule in criminal cases, that a person who is either to be a gainer,
By 1818, then, one accused of a crime in our state had no right to testify in his own behalf. He could, however, be “heard” in his role as defendant by making an unsworn statement himself. The provision in article first, § 8, that guarantees the accused “a right to be heard by himself and by counsel” may have been intended by the framers “to insure that every accused citizen enjoyed the benefit of counsel and a correlative right to be heard in person.” (Emphasis in original.) State v. Burkhart, supra, 371.
In any event, we need not base our resolution of this issue on an express selection between these two historical developments. In light of all this background, we instead are persuaded that to accept the defendant’s argument that article first, § 8, guarantees a right to hybrid representation would be tantamount to viewing that provision’s language “as newly descended from the firmament like fresh fallen snow”; Cologne v. Westfarms Associates, supra, 62; as there is scant evidence that the framers ever intended, much less imagined, any such result.
The defendant also claims that the trial court committed reversible error by granting defense counsel Hoberman’s motion to withdraw in that the court did not first establish “good cause”; see Practice Book § 632; and by restricting the role of his standby counsel so as to violate Practice Book § 964. The state counters that these claims, raised for the first time on appeal, have not been properly preserved for appellate review. In neither his brief nor his reply brief does the defendant address the state’s argument that these claims have not been preserved for our review.
Our rules of practice, of course, require that a party, in order to preserve a claim for appeal, “distinctly [raise]” it at trial. Practice Book § 3063; see also Practice Book § 315; State v. Evans, 165 Conn. 61, 65-66, 327 A.2d 576 (1973). As we stated in Evans, supra, 70, and have reiterated since, it is only in “exceptional circumstances” “that newly raised claims can and will be considered by this court.” The first such circumstance involving a recently discovered constitutional right is inapposite to these claims. Nor is the second exceptional circumstance, the deprivation “of a fundamental constitutional right and a fair trial,” implicated here. Id. We do note, however, that the record, fairly read, supports the state’s position that the defendant received a fundamentally fair trial,
There is no error.
In this opinion the other judges concurred.
Attorney Judith Hoberman’s opening statement to the trial court was in its entirety as follows:
“Ms. Hoberman: If I may proceed preliminarily. My client, although some of the papers refer to him as David Gethers, has formally changed his name to Donald Galland and during the course of these proceedings he wishes to be referred to as Donald Galland. I had anticipated filing a motion right now.
“Before we do that, however, Mr. Galland has expressed to me an interest to conduct a portion of his own defense. I have discussed that it is impossible for me to co-counsel his case with him. If he wishes to conduct his defense, I suggested that he file a pro se appearance and that I move to withdraw as counsel in the matter. I would be happy to advise him and sit at the counsel table with him as adviser.”
See State v. Gethers, 193 Conn. 526, 527 n.1, 480 A.2d 435 (1984), regarding the defendant’s legal change of name.
The following is the trial court’s advisement through this point in time:
“The Court: All right. Mr. Galland, you are charged with a very serious offense. Tampering with a witness is classified — it’s what we call a class D felony. Now, that title doesn’t mean much to you, but it is sufficiently serious so that what you face is possible punishment of up to five years. You have got to realize that a trial, particularly a trial to the jury, is going to require a very real degree of expertise to be properly conducted. For instance, there may well be questions as to admissibility of evidence. I doubt
“Now, this can come up in several different ways. It may be that the state is offering evidence to which a proper objection can be made and you won’t know it. It may be that you are attempting to offer evidence on your own behalf which is not admissible and you have framed your defense around this thing that isn’t admissible.”
The trial court then attempted to clarify the nature of the defendant’s position:
“The Court: Well, let me get it straight. You say you want to say a few things. Do you mean you yourself want to testify?
“Mr. Galland: No. No.
“The Court: O.K. You have the absolute right not to testify; you realize that? No inference can be drawn for failure to testify.
“Mr. Galland: I am the one who has to suffer the consequences.”
The following is the trial court’s oral proposal to the defendant: “What I am going to do is this, sir. If you will file a pro se appearance, I am granting the motion of your present counsel to withdraw. However, I will order her to remain in attendance as stand-by counsel. I think sometime during the trial you are going to finally realize you are out of your depth and if she stays in the room as stand-by counsel and is available to you for consultation, she will be available to step in when we reach that stage, which I am sure we will, when you realize this is something above and beyond you.”
The following is pertinent to the defendant’s request:
“[Assistant State’s Attorney]: Your Honor, the explanation having been made on the record, after the defendant’s request, I would now ask the court to again question the defendant as to whether or not he wishes to continue to now having been informed under the conditions stated on the record.
“The Court: All right. I asked you before if you wanted to withdraw your pro se appearance and have Ms. Hoberman appear on your behalf and your answer was yes. Now, you have heard an explanation by her as to her understanding of what her role will be. Having heard that explanation, do you still wish to withdraw your pro se appearance and have Ms. Hoberman represent you?
“[The Defendant]: Yes.”
A review of the transcript reveals that the defendant had a “substantial disagreement over the defense” with his counsel, Hoberman, who again requested permission to withdraw as counsel. See footnote 9, infra. The defendant explicitly agreed to proceed pro se and to have Hoberman available only in the role of standby counsel. The trial court then inquired of the defendant as to whether he understood that he had a right to counsel, that he was facing a felony charge with “the possibility of a substantial amount of prison time,” and that in light of “all that, nevertheless, you want her to get out and you will conduct the trial.” The defendant responded affirmatively to all these questions.
The watershed case on waiver of the right to counsel, Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), established that any waiver must be “an intentional . . . abandonment of a known right or privilege”; id., 464; and must be “intelligent and competent.” Id., 465. This formulation was consistently reaffirmed by the United States Supreme Court. Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) (“the accused must ‘knowingly and intelligently’ forgo those relinquished benefits”); Carnley v. Cochran, 369 U.S. 506, 513, 82 S. Ct. 884, 8 L. Ed. 2d 70 (1962) (accused must “intelligently and understandingly waive the assistance of counsel”); Von Moltke v. Gillies, 332 U.S. 708, 727, 68 S. Ct. 316, 92 L. Ed. 309 (1948) (waiver must be entered “competently, intelligently, and with full understanding of the implications”); Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S. Ct. 236, 87 L. Ed. 268 (1942) (accused may waive counsel “if he knows what he is doing and his choice is made with eyes open”); see State v. Gethers, 193 Conn. 526, 547-48, 480 A.2d 435 (1984) (Healey, J., dissenting).
The “clear and unequivocal request” formulation has been said to have developed primarily as a standard designed to minimize abuses by criminal defendants who might be inclined to manipulate the system. See generally comment, “The Right to Appear Pro Se: Developments in the Law,” 59 Neb. L. Rev. 135, 141-43 (1980). “If an unequivocal request were not required, convicted criminals would be given a ready tool with which to upset adverse verdicts after trials at which they had been represented by counsel.” (Citations omitted.) United States ex rel. Maldonado v. Denno, 348 F.2d 12, 16 (2d Cir. 1965), cert. denied sub nom. DiBlasi v. McMann, 384 U.S. 1007, 86 S. Ct. 1940, 16 L. Ed. 2d 1020 (1966); accord Moreno
We are not unmindful that occasions may arise where a defense counsel may not be free to advise the court expressly why withdrawal is essential. For example, the defendant may inform his counsel that a defense
A “hybrid” representation situation “may present the attorney with a moral dilemma so serious that a conflict of interest arises; in this case permissive withdrawal is the only realistic solution available to the unhappy attorney.” Chused, “Faretta and the Personal Defense: The Role of a Represented Defendant in Trial Tactics,” 65 Cal. L. Rev. 636, 669 (1977).
It has been suggested that, in cases in which such a difference of opinion arises between the defendant and his attorney, the trial court’s duty of inquiry indeed might be required to include the notification of the defendant’s Faretta right to proceed pro se. Chused, “Faretta and the Personal Defense: The Role of a Represented Defendant in Trial Tactics,” 65 Cal. L. Rev. 636, 664 n.133, 667 n.145 (1977); see Faretta v. California, 422 U.S. 806, 852, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) (Blackmun, J., dissenting).
Practice Book § 961, which “was adopted in order to implement the right of a defendant in a criminal case to act as his own attorney in defending himself . . .”; State v. Gethers, 193 Conn. 526, 532, 480 A.2d 435 (1984); and which is entitled “Waiver,” provides:
“A defendant shall be permitted to waive his right to counsel and shall be permitted to represent himself at any stage of the proceedings, either prior to or following the appointment of counsel. A waiver will be accepted
“(1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;
“(2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent himself;
“(3) Comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and
“(4) Has been made aware of the dangers and disadvantages of self-representation.”
The Gethers court stated that, although “a more formal inquiry involving specific consideration of each element of the rule is preferable,” an “insubstantial” departure from the rule will not constitute a denial of a defendant’s constitutional right “unless it [is] shown that his waiver of counsel was involuntary or uninformed.” State v. Gethers, supra, 539-40.
The record in this case demonstrates that the defendant made a valid and effective waiver of his constitutional right to counsel even more clearly than that in State v. Gethers, 193 Conn. 526, 480 A.2d 435 (1984), in which this court found a valid waiver.
Section 8 of article first of the constitution of the state of Connecticut provides in part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed.”
Although remarking that “the defendant never presented to the trial court his claim that he had a state constitutional right to hybrid representation,” the state in its brief does not dispute that the defendant’s claim is nevertheless reviewable on appeal because of its implications relating to the defendant’s fundamental constitutional rights to assistance of counsel and to a fair trial. See State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).
The hybrid representation model thus differs from self-representation with standby counsel serving the pro se defendant, principally in an advisory capacity, within the parameters of Practice Book § 964. See, e.g, United States v. Gaines, 416 F. Sup. 1047, 1050 (N.D. Ind. 1976); see generally Chused, “Faretta and the Personal Defense: The Role of a Represented Defendant in Trial Tactics,” 65 Cal. L. Rev. 636, 660-61 (1977); comment, “The Right to Appear Pro Se: Developments in the Law,” 59 Neb. L. Rev. 135, 154-56 (1980).
The state does not dispute that the defendant in fact requested hybrid representation. Instead, the state specifically argues that “the ruling of the trial court denying the defendant’s request to appear as co-counsel was one grounded upon its sound discretion, rather than upon our state consti
The list of decisions rejecting the argument that a right to hybrid representation is compelled under the federal constitution is rather lengthy. Prior to the Faretta decision in 1975, the federal courts uniformly rejected the constitutional basis for hybrid representation status. See, e.g., United States v. Conder, 423 F.2d 904 (6th Cir.), cert. denied sub nom. Pegram v. United States, 400 U.S. 958, 91 S. Ct. 357, 27 L. Ed. 2d 267 (1970); Brasier v. Jeary, 256 F.2d 474 (8th Cir.), cert. denied, 358 U.S. 867, 79 S. Ct. 97, 3 L. Ed. 2d 99, reh. denied, 358 U.S. 923, 79 S. Ct. 286, 3 L. Ed. 2d 242 (1958); United States v. Private Brands, 250 F.2d 554 (2d Cir. 1957), cert. denied, 355 U.S. 957, 78 S. Ct. 542, 2 L. Ed. 2d 532 (1958). The federal courts, it must be remembered, have been able to rely, at least in part, on 28 U.S.C. § 1654, which provides that “[i]n all courts of the United States the parties may plead and conduct their own cases personally or by counsel. ...” That federal statute, however, withstood constitutional attack on the hybrid representation issue in at least one case. Shelton v. United States, 205 F.2d 806 (5th Cir.), cert. dismissed on petitioner’s motion, 346 U.S. 892, 74 S. Ct. 230, 98 L. Ed. 395 (1953), motion to vacate denied, 349 U.S. 943, 75 S. Ct. 876, 99 L. Ed. 1269 (1955). Pre-Faretta state court decisions also expressed the belief that no federal constitutional right to hybrid representation existed. See, e.g., People v. Mattson, 51 Cal. 2d 777, 787-88 n.3, 336 P.2d 937 (1959). The one state court exception revealed by our research is Wake v. Barker, 514 S.W.2d 692, 696 (Ky. App. 1974) (hybrid status “is embraced within the right-to-counsel and equal-protection provisions of the federal and state constitutions”). See note, “The Accused as Co-Counsel: The Case for the Hybrid Defense,” 12 Val. U.L. Rev. 329, 338 (1978); annot., 77 A.L.R.2d 1233 (1961), and later case service (1975).
The post-Faretta case law continues to reject the claim that the federal constitution guarantees a right to hybrid representation. See, e.g., United States v. Kimmel, 672 F.2d 720 (9th Cir. 1982); United States v. Dunlap, 577 F.2d 867 (4th Cir.), cert. denied, 439 U.S. 858, 99 S. Ct. 174, 58 L. Ed. 2d 166 (1978); United States v. Hill, 526 F.2d 1019 (10th Cir. 1975), cert. denied, 425 U.S. 940, 96 S. Ct. 1676, 48 L. Ed. 2d 182 (1976); United States v. Wolfish, 525 F.2d 457 (1975), cert. denied, 423 U.S. 1059, 96 S. Ct. 794, 46 L. Ed. 2d 649 (1976); Hooks v. State, 416 A.2d 189 (Del. 1980); Commonwealth v. Palmer, 315 Pa. Super. 601, 610, 462 A.2d 755 (1983); Moore v. State, 83 Wis. 2d 285, 265 N.W.2d 540, cert. denied, 439 U.S. 956, 99 S. Ct. 356, 58 L. Ed. 2d 348 (1978).
In McKaskle, the defendant Wiggins objected to the unsolicited participation of his court-appointed standby counsel but had expressly agreed to his counsel’s presentation of a statement to the jury. McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944, 948, 79 L. Ed. 2d 122, reh. denied, 465 U.S. 1112, 104 S. Ct. 1620, 80 L. Ed. 2d 148, on remand, 729 F.2d 1026 (5th Cir. 1984). We note that the McKaskle court said: “A defendant does not have a constitutional right to choreograph special appearances by counsel.” Id., 183.
In 1708, the General Assembly enacted a law which provided that “[n]o person, except in his own case, [should] be admitted to make any plea at the bar, without being first approved of by the court before whom the plea
The court in Faretta v. California, 422 U.S. 806, 827 n.35, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), quoted the following passage from Zephaniah Swift’s early legal treatise:
“We have never admitted that cruel and illiberal principle of the common law of England, that when a man is on trial for his life, he shall be refused counsel, and denied those means of defence, which are allowed, when the most trifling pittance of property is in question. The flimsy pretence, that the court are to be counsel for the prisoner will only heighten our indignation at the practice: for it is apparent to the least consideration, that a court can never furnish a person accused of a crime with the advice, and assistance necessary to make his defence. . . .
“Our ancestors, when they first enacted their laws respecting crimes, influenced by the illiberal principles which they had imbibed in their native country, denied counsel to prisoners to plead for them to any thing but points of law. It is manifest that there is as much necessity for counsel to investigate matters of fact, as points of law, if truth is to be discovered.” 2 Swift, A System of the Laws of the State of Connecticut (1796) pp. 398-99.
The Delaware constitution, article first, § 7, provides in pertinent part: “In all criminal prosecutions, the accused has a right to be heard by himself and his counsel.”
The sentiment in Connecticut was apparently in agreement with Jeremy Bentham’s earlier reform movement in England, which espoused “contending always for rules that would not exclude but would let in the truth”; Ferguson v. Georgia, 365 U.S. 570, 575, 81 S. Ct. 756, 5 L. Ed. 2d 783 (1961); Connecticut was one of the earliest states to pass a general witness competency statute, doing so in 1867. See generally State v. Buxton, 79 Conn. 477, 478-79, 65 A. 957 (1907).
The Tennessee constitution, article first, § 9, provides in pertinent part: “That in all criminal prosecutions, the accused hath the right to be heard by himself and his counsel. . . .” “The right of a defendant to participate in his own defense is an alternative one.” State v. Melson, 638 S.W.2d 342, 359 (Tenn. 1982).
The defendant also asserts the argument that, because our state constitution was modeled on the Mississippi constitution, we should accept as a “compelling rationale” that state’s recognition of the constitutional right to hybrid representation. See Gray v. State, 351 So. 2d 1342 (Miss. 1977). The language contained in article first, § 10, of the original Mississippi constitution of 1817, guaranteeing the right of an accused to “be heard by himself and counsel” was revised during the Mississippi constitutional convention of 1832 to provide that “[i]n all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both. . . .’’(Emphasis added.) Mississippi Constitution, art. 3 § 26. The defendant without citation of authority states in his brief that this revision was “plainly a clarification and reaffirmation of the scope of the right intended to be guaranteed.” Although the Gray court did hold the trial court’s denial of
Although the defendant also relies on the writings of Zephaniah Swift to support his claim and to counter the state’s arguments, our review of those sources, other than as noted previously in this opinion, shows them to be inconclusive. See, e.g., 2 Swift, Digest (1823) p. 396 (“Formerly, in this State, the same principle was adopted, that counsel should be admitted only to questions of law: but for some time past, prisoners have been admitted to a full defence by counsel in criminal cases: and this important privilege is guaranteed to them by the constitution, which provides that, in all criminal cases, the accused shall have a right to be heard by himself, and by counsel. . . .”) See also 2 Dutton, A Revision of Swift’s Digest (1853) p. 421 (to the same effect).
The defendant does not claim that the trial court abused its discretion in denying his request for a hybrid representation arrangement.
It appears to be settled after Faretta that concerns involving judicial administration may not frustrate a defendant’s choice to proceed pro se or with counsel. See Faretta v. California, 422 U.S. 806, 834 n.46, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); 2 LaFave & Israel, Criminal Procedure (1984) § 11.5, p. 52. Nevertheless, sound policy reasons have been offered for not establishing an absolute right to hybrid representation. As one postFaretta court succinctly stated: “This rule recognizes that the conflicting interests of the accused and society involved in a criminal trial can be served only in an orderly proceeding. The trial judge must therefore have discretion to control the conduct of a trial to maintain dignity, decorum and orderly procedures; to avoid unnecessary delays; and to prevent the disruption of the judicial process by the accused’s inept or disorderly self-representation. This approach reflects the fact that no right is more important to the accused and to society than the right to a fair, orderly trial.” Moore v. State, 83 Wis. 2d 285, 300, 265 N.W.2d 540, cert. denied, 439 U.S. 956, 99 S. Ct. 356, 58 L. Ed. 2d 348 (1978); accord Mosby v. State, 457 S.W.2d 836, 840 (Ark. 1970); People v. Mattson, 51 Cal. 2d 777, 792, 336 P.2d 937 (1959); People v. Mirenda, 57 N.Y.2d 261, 266, 442 N.E.2d 49, 455 N.Y.S.2d 752 (1982); State v. Burkhart, 541 S.W.2d 365, 371 (Tenn. 1976); contra Chused, “Faretta and the Personal Defense: The Role of a Represented Defendant in Trial Tactics,” 65 Col. L. Rev. 636, 652-56 (1977). For a thoughtful exposition on the problems that defense counsel might experience with hybrid representation, see People v. Mattson, supra, 793. Accord Landers v. State, 550 S.W.2d 272, 280 (Tex. Crim. App. 1977); see generally note, “The Accused as Co-Counsel: The Case for the Hybrid Defense,” 12 Val. U.L. Rev. 329, 341-52 (1978).
In regard to the claim involving Practice Book § 632, the record plainly reveals that the trial court granted the defendant’s appointed counsel’s motion to withdraw only after the defendant exercised his option to enter a pro se appearance, a situation that is closely analogous to a discharge of counsel. See Code of Professional Responsibility DR 2-110 (B) (4). As to the § 964 claim, the defendant or his standby counsel could have raised this argument to the court at trial. This they did not do.