State v. Braswell

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STATE OF CONNECTICUT v. VELMON
DANNY BRASWELL
(SC 19230)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Robinson, Js.
Argued March 23—officially released September 29, 2015
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were David I. Cohen, state’s attorney, and
Michelle Manning, assistant state’s attorney, for the
appellant (state).
Alice Osedach, assistant public defender, for the
appellee (defendant).
Opinion
ZARELLA, J. In this appeal, we are asked to decide
whether the Appellate Court properly determined that
the trial court’s denial of the request by the defendant,
Velmon Danny Braswell, to represent himself was
improper, and, if so, whether the Appellate Court cor-
rectly determined that the impropriety constitutes
structural error. The defendant was convicted of kid-
napping in the second degree in violation of General
Statutes § 53a-94 (a), and interfering with an officer in
violation of General Statutes § 53a-167a (a). He
appealed from the trial court’s judgment of conviction,
claiming, inter alia, that the trial court improperly had
denied him his right to self-representation. The Appel-
late Court agreed and reversed the judgment of convic-
tion. We granted the state’s petition for certification
to appeal.
On appeal, the state claims that the trial court prop-
erly denied the defendant’s April 28, 2010 request to
represent himself because the defendant’s behavior dur-
ing the court’s canvass provided sufficient grounds for
the court to deny the motion. It further claims that, even
if the trial court did improperly deny the defendant’s
request, the judgment of conviction should nonetheless
have been affirmed because the defendant subsequently
waived his right to self-representation and the denial,
even if improper, was harmless. The defendant
responds that the trial court’s denial was improper
because it was based on incorrect grounds—the ade-
quacy of defense counsel—and the impropriety is struc-
tural error. We agree with the defendant and affirm the
judgment of the Appellate Court.
The record reveals the following relevant facts. Attor-
ney Benjamin Aponte of the Division of Public Defender
Services, was appointed to represent the defendant. On
April 6, 2010, the defendant filed a pro se, handwritten
motion with the trial court entitled, ‘‘Motion for
[Removal of] Attorney And Motion [T]o [G]o Pro-Se in
Case.’’ This was one of a number of pro se motions the
defendant filed.1 In the motion, the defendant requested
that the court allow him to proceed pro se due to
Aponte’s alleged inaction and his alleged failure to pro-
vide the defendant with discovery and other legal mate-
rials he had requested. The defendant’s first appearance
before the court after filing this motion was on April
28, 2010, on which date jury selection was scheduled
to begin.
At the opening of the April 28 hearing, the defendant
was not present in the courtroom. Aponte conveyed to
the court: ‘‘[The defendant] informed me that he does
not wish to come out and have me represent him. He’s
indicated to me that . . . he would prefer to go pro se
. . . .’’ Additionally, Aponte informed the court that the
defendant had said he would be disruptive if the court
forced him to appear and proceed with the trial. The
court instructed that the defendant be brought out, after
which the court stated: ‘‘Now . . . just before you
came out, Attorney Aponte told me that you did not
wish to go forward this morning. You either did not
wish to go forward, or you did not wish to use Attorney
Aponte as your counsel.’’ In response, the defendant
explained: ‘‘There’s a conflict [of] interest between me
and Attorney Aponte. . . . I don’t feel he’s—has
enough time to spend with me on my case.’’ The defen-
dant stated that he felt that Aponte had not been respon-
sive to his requests for discovery materials and that
Aponte was overworked and therefore not dedicating
enough time to the defendant’s case. The court
responded by informing the defendant that it had spo-
ken with Aponte about a trial schedule, jury selection
was to begin that day, the trial was scheduled to begin
in four weeks, Aponte had spoken with the state about
discovery compliance, and the court would take up any
discovery motions to ensure the defendant received the
discovery to which he was entitled and had time to
prepare for trial. Finding the court’s response unsatis-
factory, the defendant replied: ‘‘[With] [a]ll due respect,
Your Honor, I still have a problem with this attorney
being on my case. . . . I want to be able to prepare
myself for this case. And I also put the motion in to go
pro se, if I have to. I do not trust the public defender’s
office at this point.’’ Continuing, the defendant stated:
‘‘There is a prejudice that I went through in the last six
months, that’s put me in hardship. And, right now, I
don’t trust it. And I would leave the courtroom, because
I would hate to make a scene in here, in front of the
jury. . . . [A]nd I’m going to respect [the court]. And
I’m going to ask to remove myself from the courtroom
and protest that I don’t want this attorney on my case.
And—it’s simple.’’
After this last declaration that the defendant did not
wish to continue to be represented by Aponte, the court
asked whether the defendant had substitute counsel
who was ready to proceed. The defendant did not have
substitute counsel and asked how he could be ready
to proceed when he had not received the requested
discovery. The court then addressed Aponte and the
assistant state’s attorney regarding discovery issues.
After hearing from the attorneys, the court returned to
the defendant: ‘‘[W]hat I’m hearing is not some[thing]
unusual from the perspective of the defendant. . . .
But it sounds to the court as if, within the limits of
what has been given to Attorney Aponte, he’s provided
reasonable access to you. And, if I understand what I’m
hearing correctly, he intends to continue that flow of
information, as he receives it from the state.’’ The court
indicated that it would keep an open mind with respect
to the discovery issues and address any specific prob-
lems as they arose. The court concluded by stating:
‘‘I’m happy to talk to you about—do you want to con-
tinue with Attorney Aponte or not? What I need to
know, really, before I could—you know—respond
affirmatively to that request is, one, have you got coun-
sel that’s ready to come in, in place of Attorney Aponte?
Or are you in a position where you can meaningfully
defend yourself?’’ The defendant replied: ‘‘At this point,
Your Honor, it’s all me. I’ve gotta defend myself the
best I know how. And with the little background law,
I’m gonna do it the best I can.’’
Following this third request to represent himself, the
court began to ask the defendant about his background.
At first, the defendant’s answers were nonresponsive.
He began by again bringing up his discovery concerns
and then referenced the various motions for a speedy
trial that he had filed pro se. At this point, the court
expressed its view that the defendant had a generalized
complaint about Aponte and the time the defendant
perceived Aponte had put into the defendant’s case.
The court continued: ‘‘I don’t have any specific informa-
tion that would enable me to make a finding, or even
to think that there’s a reasonable basis for that. So, I’m
going to deny your request to proceed pro se. I’m happy
to talk to you further about that. What I need to know,
if you want to proceed pro se, [is] your educational
background, what experience you have in handling legal
matters, [and] whether you’re prepared on the issues
you anticipate coming up in this case. . . . [T]hese are
serious charges, and ones where the assistance of com-
petent and trained counsel really is all but essential.
And I strongly encourage you to use counsel. And I
haven’t heard anything as to why this attorney would
be inappropriate.’’
After the court’s second request for background infor-
mation, the defendant informed the court that he had
fourteen years of education, he had spent two years
working for the campus police at Western Connecticut
State University, he had testified in ‘‘[s]ay three’’ trials
while working for the campus police, and he had once
successfully represented himself in a criminal trial in
Pennsylvania. When questioned about the charges in
Pennsylvania, the defendant refused to discuss them.
The court then asked the defendant if there were any
other credentials, qualifications, or experience the
court should know about. It also reiterated that the
defendant was facing serious charges. The defendant
responded that he understood and that he was asking
for the discovery and some time to prepare his case
‘‘without the help of Mr. Aponte.’’2
Following the colloquy between the court and the
defendant regarding the defendant’s background, the
court concluded:
‘‘Well, here’s what I’m going to do. . . . I’m not going
to grant that motion today. What I’m going to do is—I
am going to take up with counsel the status of discovery
later today. I’m going to make sure that we’ve got a
strict time schedule to get everything that can be gotten,
directly to Attorney Aponte.
‘‘He assures me it’s going to be communicated to you.
. . . [E]verything’s going to be [given] to you, and we’re
not going to start this proceeding until May 26, a full
four weeks away from today.
‘‘If something comes up between now and then, that
you have substitute counsel in and ready to go, [or, if]
an issue comes up with regard to discovery, I’m happy
to hear it. I don’t want to say no, because I don’t know
what’s going to come up in the next four weeks.
‘‘But, at this point, I’m not going to grant your motion.
And I’m going to deny the motion for any continuance
in [the] trial date at this time. And I’m going to deny
the motion to discharge counsel or allow you to proceed
pro se.
‘‘If, in the next four weeks, I see some additional
support for those, I’m happy to reconsider them, okay?’’
The court turned to jury selection after it denied the
defendant’s motion. It encouraged the defendant to stay
and participate in jury selection, but it warned the
defendant that, if he became disruptive, he might preju-
dice his case and might be removed from the courtroom.
The defendant asked to leave the courtroom and
became disruptive as the court attempted to canvass
him regarding his right to be present.3 After unsuccess-
fully attempting to canvass the defendant, the court
ordered that he be taken to the observation room to
observe the proceedings, as he wished. After the defen-
dant was removed from the courtroom, Aponte
expressed concern over proceeding when the defendant
did not trust him and did not want his representation.
He requested time to consider how to best protect the
defendant’s rights. The court granted a short recess.
During the recess, the defendant reported arm pain
and requested medical attention. Emergency medical
personnel were called, and the court adjourned the
proceedings for the day without commencing jury
selection.
The defendant next appeared before the court on
May 4, 2010. He again expressed concerns about not
receiving discovery materials and listed a few specific
items he wanted to obtain. Aponte then handed the
defendant a redacted copy of the police report, one of
the items the defendant had requested. The defendant
indicated that he wanted time to review the report
because he might want to file additional motions. The
court, however, decided to proceed with jury selection
and asked if the defendant wanted to participate. The
following colloquy ensued:
‘‘The Defendant: I’d like to just leave the—I’d like to
just leave upstairs. I don’t want to have nothing to do
with that right now.
‘‘The Court: So you do not wish to participate—
‘‘The Defendant: Due to the fact that I want to look
through this, so I’ll look first, and I’ve been asking for
this for a long time, and I finally got it in my hand and
I’d like to look through it.
***
‘‘The Defendant: I’m not willing to do any—I’m not
willing to go to the jury process now. I’m going to put
it in my—for now, Attorney Aponte’s—I trust him in
that area, and I don’t have nothing to do with it.
***
‘‘The Defendant: I want to look at this [police report].
That’s where my mind is at, and my mind wouldn’t be
on the jury. I wouldn’t—it wouldn’t be right having me
here because I would disagree with that right now.’’
During a further exchange, the defendant indicated
that he would be disruptive if he was forced to remain
in the courtroom. Thus, the court excused the defendant
to the observation room, but, before the defendant left
the courtroom, Aponte objected to the proceedings
moving forward because the defendant had indicated
he wished to withdraw his pro se speedy trial motions.
After the defendant confirmed that he wished to with-
draw the motions, the court continued the matter for
sixty days and did not commence jury selection. The
court then considered and granted the state’s motion to
obtain nontestimonial evidence (a buccal swab sample)
from the defendant. Aponte represented the defendant
in connection with that motion.
On July 20, 2010, the court reconvened to commence
jury selection. At the beginning of the proceedings,
Aponte reported that the defendant had been ‘‘roughed
up by the marshals’’ and was requesting medical atten-
tion. The court queried the defendant and the marshals
to ascertain what had happened. During this exchange,
the defendant reiterated that he would rather represent
himself. The court indicated that it first wanted to
address the incident between the defendant and the
marshals. After questioning the defendant and the mar-
shals, the court determined that the defendant could
participate in the proceedings in a meaningful way and
that the proceedings would continue. At that point, the
defendant requested to leave the courtroom. The court
allowed the defendant to go to the observation room.
After the defendant was escorted from the courtroom,
Aponte indicated to the court that he believed the defen-
dant had requested to proceed pro se and suggested
the court should address that issue at a later time. The
court responded: ‘‘We addressed it last time, didn’t we?’’
Aponte indicated he was not sure whether they had.
Jury selection then commenced and continued on
July 21 and 22, 2010. The defendant again requested to
proceed pro se twice on July 27, 2010, and once on
August 9, 2010. The court denied all three requests. The
defendant’s trial was held on August 9 and 10, 2010,
and, on August 10, the jury found the defendant guilty
of both kidnapping in the second degree and interfering
with an officer. On October 26, 2010, the court sen-
tenced the defendant to a total effective term of twelve
years imprisonment, followed by eight years of spe-
cial parole.
The defendant appealed to the Appellate Court from
the trial court’s judgment of conviction, claiming, inter
alia, that the trial court improperly had denied him
his right to self-representation on April 28, 2010. The
Appellate Court agreed that the trial court’s denial of
the defendant’s motion to proceed pro se was improper.
State v. Braswell, 145 Conn. App. 617, 636, 76 A.3d 231
(2013). It further concluded that the improper ruling is
structural error; see id.; and, therefore, reversed the
judgment of conviction and remanded the case for a
new trial. Id., 644. We thereafter granted the state’s
petition for certification to appeal from the Appellate
Court’s judgment. State v. Braswell, 310 Conn. 939, 939–
40, 79 A.3d 892 (2013).
I
We first address the state’s claim that the trial court
properly denied the defendant’s April 28, 2010 request
to represent himself. The state claims the denial was
proper because the defendant’s disruptive behavior was
sufficient to establish that he was unable to represent
himself. In response, the defendant avers that the trial
court’s denial was improperly based on the ground that
there were insufficient facts to warrant the discharge
of defense counsel. We agree with the defendant.
We begin with the governing legal principles. The
sixth amendment to the United States constitution pro-
vides: ‘‘In all criminal prosecutions, the accused shall
enjoy the right . . . to have the assistance of counsel
for his defense.’’ This right is made applicable to state
criminal prosecutions through the fourteenth amend-
ment’s due process clause. See, e.g., Gideon v. Wain-
wright, 372 U.S. 335, 342, 83 S. Ct. 792, 9 L. Ed. 2d 799
(1963). Embedded within the sixth amendment right to
assistance of counsel is the defendant’s right to elect
to represent himself, when such election is voluntary
and intelligent. See, e.g., Faretta v. California, 422 U.S.
806, 807, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
We have long recognized this important right. See,
e.g., State v. Flanagan, 293 Conn. 406, 418, 978 A.2d 64
(2009); State v. Brown, 256 Conn. 291, 302, 772 A.2d
1107, cert. denied, 534 U.S. 1068, 122 S. Ct. 670, 151 L.
Ed. 2d 584 (2001). We have also observed, however,
that ‘‘[t]he right to counsel and the right to self-represen-
tation present mutually exclusive alternatives.’’ (Inter-
nal quotation marks omitted.) State v. Flanagan, supra,
418. Although both rights are constitutionally protected,
a defendant must choose between the two. Id. We
require a defendant to clearly and unequivocally assert
his right to self-representation because the right, unlike
the right to the assistance of counsel, protects interests
other than providing a fair trial, such as the defendant’s
interest in personal autonomy. State v. Jones, 281 Conn.
613, 648, 916 A.2d 17, cert. denied, 552 U.S. 868, 128 S.
Ct. 164, 169 L. Ed. 2d 112 (2007). ‘‘Put another way, a
defendant properly exercises his right to self-represen-
tation by knowingly and intelligently waiving his right to
representation by counsel.’’ (Internal quotation marks
omitted.) State v. Flanagan, supra, 418.
Once the right has been invoked, the trial court must
canvass the defendant to determine if the defendant’s
invocation of the right, and simultaneous waiver of his
right to the assistance of counsel, is voluntary and intel-
ligent. See, e.g., State v. Pires, 310 Conn. 222, 231, 77
A.3d 87 (2013). The United States Supreme Court has
explained: ‘‘[I]n order competently and intelligently to
choose self-representation, [a defendant] 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
eyes open.’’ (Internal quotation marks omitted.) Faretta
v. California, supra, 422 U.S. 835. That court further
explained that a record that affirmatively shows that
the defendant is ‘‘literate, competent, and understand-
ing, and that he [is] voluntarily exercising his informed
free will’’ is sufficient to support a finding that the
defendant voluntarily and intelligently invoked his right.
Id. Practice Book § 44-34 serves to guide our trial courts
in making this inquiry. State v. Flanagan, supra, 293
Conn. 419. Nevertheless, ‘‘[b]ecause the . . . inquiry
[under Practice Book § 44-3] simultaneously triggers
the constitutional right of a defendant to represent him-
self and enables the waiver of the constitutional right
of a defendant to counsel, the provision of § [44-3] can-
not be construed to require anything more than is con-
stitutionally mandated.’’ (Internal quotation marks
omitted.) Id. Thus, the court need not question a defen-
dant regarding all of the Practice Book § 44-3 factors.
State v. T.R.D., 286 Conn. 191, 204, 942 A.2d 1000 (2008).
Instead, the analysis under that rule of practice is
designed to help the court answer two questions:
‘‘[W]hether a criminal defendant is minimally compe-
tent to make the decision to waive counsel, and . . .
whether the defendant actually made that decision in
a knowing, voluntary and intelligent fashion.’’ (Internal
quotation marks omitted.) State v. D’Antonio, 274 Conn.
658, 712, 877 A.2d 696 (2005). To date, courts have
recognized four instances in which a court may deny
a defendant’s timely request to represent himself. A
defendant’s request may be denied when a court finds
that the defendant is not competent to represent him-
self; see, e.g., Indiana v. Edwards, 554 U.S. 164, 174,
128 S. Ct. 2379, 171 L. Ed. 2d 345 (2008); or that he has
not knowingly and intelligently waived his right to the
assistance of counsel. See, e.g., Faretta v. California,
supra, 835. A court can also deny such request because
it was made for dilatory or manipulative purposes; e.g.,
State v. Jordan, 305 Conn. 1, 22, 44 A.3d 794 (2012);
see also United States v. Mackovich, 209 F.3d 1227,
1238 (10th Cir.), cert. denied, 531 U.S. 905, 121 S. Ct.
248, 148 L. Ed. 2d 179 (2000); or because the defendant’s
behavior is disruptive or obstructive. See, e.g., Faretta
v. California, supra, 834 n.46; State v. Jones, supra, 281
Conn. 648.
Mindful of these principles, we now consider whether
the trial court’s denial of the defendant’s motion to
represent himself was proper. We review a trial court’s
decision regarding a defendant’s request to proceed pro
se for abuse of discretion. See, e.g., State v. Flanagan,
supra, 293 Conn. 420.
There is no dispute that the defendant in the present
case clearly and unequivocally invoked his right to rep-
resent himself. On April 6, 2010, the defendant filed a
motion requesting that the court allow him to proceed
pro se. Further, on April 28, 2010, both he and his
attorney informed the court that the defendant wished
to represent himself. Thus, the court was obligated to
canvass the defendant to determine if his invocation of
the right to self-representation and consequent waiver
of his right to counsel were knowing and intelligent.
See, e.g., State v. Pires, supra, 310 Conn. 231.
After the defendant first stated that he wanted to
represent himself, the court engaged the defendant in
a colloquy. The trial court discussed with the defendant
his concerns regarding discovery and Aponte’s repre-
sentation of him. The court attempted to allay the defen-
dant’s concerns by informing him that Aponte had
spoken with the assistant state’s attorney about discov-
ery and that Aponte had ensured the court that he
would promptly forward all discovery materials to the
defendant once he received them from the state. Unsat-
isfied, however, the defendant again stated he did not
want Aponte to continue to represent him but, instead,
wished to represent himself. The court inquired as to
whether the defendant had replacement counsel who
was ready to proceed, to which the defendant replied:
‘‘Right now, there’s no discovery in front of me, sir. How
can I prepare for a case?’’ Following the defendant’s
comment, the court engaged in a colloquy with defense
counsel and the assistant state’s attorney regarding dis-
covery. After that exchange, the court addressed the
defendant as follows: ‘‘[W]hat I’m hearing is not some-
[thing] unusual from the perspective of the defendant.
. . . But it sounds to the court as if, within the limits of
what has been given to Attorney Aponte, he’s provided
reasonable access to you. And, if I understand what I’m
hearing correctly, he intends to continue that flow of
information, as he receives it from the state.’’ The court
continued: ‘‘I’m happy to talk to you about—do you
want to continue with Attorney Aponte or not?’’ The
defendant again indicated he wished to represent
himself.
If the colloquy between the trial court and the defen-
dant is the canvass required by Practice Book § 44-3,
it is clear from the record that the court tied the canvass
to the wrong conclusion. Instead of determining
whether the defendant was knowingly and intelligently
invoking his right to self-representation, the court,
through the exchange, was attempting to alleviate any
concerns the defendant may have had with respect to
the alleged problems between him and Aponte. Follow-
ing the defendant’s third request to represent himself,
however, the court clearly began, if it had not before,
the canvass required by Practice Book § 44-3 by asking
about the defendant’s background.5 Rather than answer
that question, the defendant again began to air his dis-
covery concerns, at which point the court expressed
its view that the defendant had a generalized complaint
about Aponte. The court continued: ‘‘I don’t have any
specific information that would enable me to make a
finding, or even to think that there’s a reasonable basis
for that [complaint]. So, I’m going to deny your request
to proceed pro se.’’
After this first denial, the court immediately reconsid-
ered its decision and told the defendant that, if he
wanted to proceed pro se, it needed to first hear about
his educational background, legal experience, and
whether he was prepared to handle the case. During
the colloquy regarding the defendant’s background,
education, and experience, the court learned that the
defendant had fourteen years of education, spent two
years in law enforcement, and had testified at three
trials. The defendant also disclosed that he had success-
fully represented himself in a case brought by the com-
monwealth of Pennsylvania, although he would not
discuss the charges in the Pennsylvania case with the
trial court. After asking if the defendant had any other
credentials, qualifications, or experience about which
the court should know, the court concluded: ‘‘Well,
here’s what I’m going to do. . . . I’m not going to grant
that motion today. What I’m going to do is—I am going
to take up with counsel the status of discovery later
today. I’m going to make sure that we’ve got a strict
time schedule to get everything that can be gotten,
directly to Attorney Aponte.
‘‘He assures me it’s going to be communicated to you.
. . . [E]verything’s going to be [given] to you, and we’re
not going to start this proceeding until May 26, a full
four weeks away from today.
‘‘If something comes up between now and then, that
you have substitute counsel in and ready to go, [or, if]
an issue comes up with regard to discovery, I’m happy
to hear it. I don’t want to say no, because I don’t know
what’s going to come up in the next four weeks.
‘‘But, at this point, I’m not going to grant your motion.
. . . And I’m going to deny the motion to discharge
counsel or allow you to proceed pro se.’’
After reviewing the foregoing record, we conclude
that the basis for the trial court’s denial of the defen-
dant’s request to represent himself was the state of
discovery and the defendant’s allegations against
Aponte. This is demonstrated by the fact that the court’s
first denial was immediately preceded by its statement
that the defendant appeared to have a generalized griev-
ance about Aponte that was not supported by any evi-
dence presented to the court. In denying the request a
second time, the court stated it would take up the issue
of discovery with counsel later that day and ensure that
there was a strict discovery time schedule. Thus, the
transcript of the April 28, 2010 hearing makes clear that
this was the only basis for the trial court’s ruling.
Our cases establish that a trial court’s duty, after a
defendant has waived his right to counsel and invoked
his right to represent himself, is to determine whether
the defendant’s waiver and invocation of the right were
knowing and intelligent. See, e.g., State v. T.R.D., supra,
286 Conn. 204. If it is, the court must, in most cases,
grant the defendant’s request. This right is even nearer
to absolute when it is invoked at the preliminary stages
of the proceedings, as it was in the present case. See
State v. Flanagan, supra, 293 Conn. 431 (‘‘[when] a
defendant’s request to proceed pro se is informed, vol-
untary and unequivocal, [t]he right of a defendant in a
criminal case to act as his own lawyer is unqualified if
invoked prior to the start of trial’’ [emphasis in original;
internal quotation marks omitted]). Prior to trial, a court
is not free to investigate the adequacy of defense coun-
sel and, upon discovering that counsel is providing ade-
quate assistance, require the defendant to continue to
be represented by counsel.6 See id. In fact, we found
such a response to a defendant’s request to represent
himself improper in State v. Jordan, supra, 305 Conn.
16–18.7 The right to represent oneself is not only exercis-
able when a defendant is dissatisfied with counsel. It
also protects a defendant’s interest in autonomy and
his right to put on his own defense, at all critical stages
of the proceedings. See, e.g., McKaskle v. Wiggins, 465
U.S. 168, 174, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984)
(‘‘[t]he pro se defendant must be allowed to control the
organization and content of his own defense, to make
motions, to argue points of law, to participate in voir
dire, to question witnesses, and to address the court
and the jury at appropriate points in the trial’’). Indeed,
a defendant is entitled to represent himself when he is
competent to do so and chooses to do so knowingly
and intelligently. Thus, we conclude that it was an abuse
of the trial court’s discretion to deny the defendant his
constitutional right to represent himself on the basis
of the quality of counsel and state of discovery. More-
over, the state agrees that these were improper grounds
for denial.
Nevertheless, the state contends that the trial court
did not abuse its discretion because the defendant,
through his behavior, forfeited his right to self-represen-
tation. In particular, the state draws our attention to
the defendant’s statement that he would be disruptive
if he was not permitted to represent himself. It also
contends that the defendant, when addressed by the
court, interrupted the court, declined to answer ques-
tions posed by the court, and threatened to leave the
courtroom. Although we agree that a defendant may
forfeit his right to self-representation by exhibiting dis-
ruptive behavior; e.g., State v. Jones, supra, 281 Conn.
648; the defendant’s behavior was not the reason for
the court’s denial in the present case. As we discussed
previously, it is abundantly clear from the record that
the court denied the defendant’s request on the basis
of the adequacy of counsel and the state of discovery.
Even assuming, arguendo, that the trial court’s deci-
sion was based on the defendant’s conduct, we do not
agree that that conduct rose to the level that would
effectuate a forfeiture of the defendant’s constitutional
right. First, we do not agree with the state’s reading of
the record. It is true that the defendant indicated on
April 28, 2010, that he would disrupt the proceedings
if he were not allowed to represent himself. Beyond
that, however, the defendant was respectful of the
court. He generally did not interrupt the court, and
he answered the court’s questions, with only a few
exceptions. With respect to the defendant’s conduct
following the court’s ruling on April 28—at which time
he did become disruptive and disrespectful—it is irrele-
vant to our consideration of the propriety of the court’s
original denial of the defendant’s request to represent
himself.
Second, the defendant’s conduct on April 28 was far
from the type of conduct that this court previously
has deemed to effect a forfeiture of the right to self-
representation. In State v. Jones, supra, 281 Conn. 648–
49, we held that a defendant could forfeit his right to
self-representation, even without a canvass by the
court, through disruptive behavior. In that case, unlike
in the present case, the defendant, Jermaine Jones, had
been significantly disruptive prior to the court’s denial
of his request to represent himself. See id., 649. For
example, Jones argued with the court after nearly every
adverse ruling, and, after the court denied his motion
to suppress, he broke a bone in his hand by punching
through a Plexiglas window in anger over the court’s
ruling. See id., 620–32. Further, while arguing with the
court over a different ruling, Jones appeared to grow
angry as the colloquy ensued. See id., 625–28. At the
climax, Jones requested, while actively and forcibly
resisting the marshals’ efforts to restrain him, to repre-
sent himself. Id., 628. The court promptly denied the
request and ordered that Jones be removed from the
courtroom, as he had requested. Id. Jones ‘‘scuffle[d]’’
with the marshals, and he ‘‘had to be physically
restrained by a number of [them].’’ (Internal quotation
marks omitted.) Id. The trial court in Jones subse-
quently noted that it had grown concerned for the safety
of those in the courtroom. See id., 630–31.
In State v. Johnson, 185 Conn. 163, 179, 440 A.2d 858
(1981), aff’d, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d
823 (1983), we also recognized that a defendant could
forfeit his right to self-representation through his dis-
ruptive behavior. In that case, however, the forfeiture
occurred because the defendant, after being allowed to
represent himself, became so disruptive that he had to
be removed from the courtroom. Id. Further, he did not
return to the courtroom for the remainder of the trial.
Id. In contrast, the defendant in the present case was
never removed from the courtroom against his will.
Moreover, as we previously noted, the defendant was
respectful of the court and was not disruptive prior to
its ruling on his motion to represent himself. Thus, he
would have been present and able to represent himself
if his request had been granted. We therefore agree with
the Appellate Court that the trial court’s denial of the
defendant’s request to represent himself was an abuse
of its discretion.
II
We next consider whether the Appellate Court cor-
rectly determined that the trial court’s improper denial
of the defendant’s right to self-representation is struc-
tural error and not subject to harmless error analysis.
The United States Supreme Court has noted that the
harmless error doctrine, which applies to some consti-
tutional errors, serves the useful purpose of preventing
the reversal of a conviction when there are minor trial
errors or defects that have very little, if any, likelihood
of affecting the result of the trial. Chapman v. Califor-
nia, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).
Nevertheless, ‘‘there are some constitutional rights,’’ the
court noted, that are ‘‘so basic to a fair trial that their
infraction can never be treated as harmless error
. . . .’’ (Footnote omitted.) Id., 23. It has called such
infractions ‘‘structural defects’’ or ‘‘structural error.’’
(Internal quotation marks omitted.) Sullivan v. Louisi-
ana, 508 U.S. 275, 281, 282, 113 S. Ct. 2078, 124 L. Ed.
2d 182 (1993); see also Arizona v. Fulminante, 499 U.S.
279, 309, 310, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)
(Rehnquist, J.) (referring to structural defects). The
court has included within the category of structural
errors, errors ‘‘that are necessarily unquantifiable and
indeterminate’’; Sullivan v. Louisiana, supra, 282; and
it has indicated that the improper denial of the right to
self-representation is included among such errors. See
McKaskle v. Wiggins, supra, 465 U.S. 177 n.8.
In McKaskle, the United States Supreme Court stated:
‘‘Since the right of self-representation is a right that
when exercised usually increases the likelihood of a
trial outcome unfavorable to the defendant, its denial
is not amenable to harmless error analysis. The right
is either respected or denied; its deprivation cannot be
harmless.’’ (Internal quotation marks omitted.) Id. As
the state correctly notes, this quoted language in
McKaskle is dictum. In that case, the court considered
the appropriate role standby counsel could play after
a defendant has asserted his right to self-representation
and concluded that standby counsel had remained
within the limits of that role. Id., 170, 187–88. Because
the court found no error, its discussion regarding
whether a violation of a defendant’s right to self-repre-
sentation could ever be harmless was dictum. At least
twice, however, the court has reaffirmed its reasoning
in McKaskle, albeit, again in dictum. See Arizona v.
Fulminante, supra, 499 U.S. 308–10 (considering
whether admission of involuntary confession is subject
to harmless error analysis); Flanagan v. United States,
465 U.S. 259, 266–68, 104 S. Ct. 1051, 79 L. Ed. 2d 288
(1984) (addressing order disqualifying defense coun-
sel). In Fulminante, the court cited McKaskle and the
denial of the right to self-representation as an example
of a constitutional deprivation that affects the frame-
work of the trial proceedings. Arizona v. Fulminante,
supra, 310. In Flanagan, the court went even further
and stated that the right to counsel of one’s choice is like
the right to self-representation, and that ‘‘[o]btaining [a]
reversal for [a] violation of such a right does not require
a showing of prejudice to the defense, since the right
reflects constitutional protection of the defendant’s free
choice independent of concern for the objective fair-
ness of the proceeding.’’ Flanagan v. United States,
supra, 268.
We believe, and at least six federal circuit courts of
appeals agree, that the United States Supreme Court
has strongly suggested that a denial of the right to self-
representation can never be harmless. See, e.g., John-
stone v. Kelly, 808 F.2d 214, 218 (2d Cir. 1986) (citing
cases), cert. denied, 482 U.S. 928, 107 S. Ct. 3212, 96 L.
Ed. 2d 699 (1987). Moreover, the right to represent
oneself protects interests other than ensuring that a
defendant receives a fair trial. See, e.g., Faretta v. Cali-
fornia, supra, 422 U.S. 819–20; State v. Jones, supra,
281 Conn. 648. The right protects the defendant’s inter-
ests in autonomy and putting on his own defense. See,
e.g., McKaskle v. Wiggins, supra, 465 U.S. 173–74; State
v. Flanagan, supra, 293 Conn. 418; State v. Jones, supra,
648. The state contends that what is protected by the
sixth amendment right to self-representation is the
opportunity for the defendant to present his case to the
jury. We do not agree. Self-representation ‘‘encom-
passes certain specific rights to have [one’s] voice
heard. The pro se defendant must be allowed to control
the organization and content of his own defense, to
make motions, to argue points of law, to participate in
voir dire, to question witnesses, and to address the
court and the jury at appropriate points in the trial.’’
McKaskle v. Wiggins, supra, 174. Thus, the nature of
the right is not one that is susceptible to harmless error
analysis. To determine that the denial of the right to
self-representation was tolerable because it did not
influence the outcome of the trial, or a particular part
of the proceedings, such as jury selection, would be
to disregard the right completely and the interests it
protects. Moreover, application of the ‘‘harmless error
standard would, in practical effect, preclude vindication
of the right. Since seasoned appointed counsel can
almost invariably provide better legal representation
than a pro se defendant, denial of a request to proceed
pro se could rarely, if ever, be shown to have been
[harmful].’’ Johnstone v. Kelly, supra, 218.
The state also argues that, even when the deprivation
of a certain constitutional right has been determined
to be structural, it does not necessarily follow that every
‘‘brief’’ or ‘‘trivial’’ deprivation of that right is structural
error. It further asserts that the United States Supreme
Court implicitly applied this principle in McKaskle. As
we noted previously, in that case, the court considered
what role court-appointed standby counsel could play
consistent with the defendant’s right to self-representa-
tion and whether standby counsel in that case exceeded
those limits, thereby infringing on the defendant’s
rights. See McKaskle v. Wiggins, supra, 465 U.S. 170–71,
187–88. The court concluded that standby counsel can
be appointed and can appear before the court and jury
in certain instances, for example, at the defendant’s
request for representation or to assist with routine pro-
cedural and evidentiary obstacles, without violating the
defendant’s right to self-representation. Id., 183–84. It
further concluded that standby counsel in McKaskle
stayed within those limitations, and, therefore, the
defendant was not denied his right to self-representa-
tion. Id., 188. The court reasoned, in part, that such
involvement by standby counsel was only ‘‘slight[ly]’’
likely to erode the appearance that the defendant was
defending himself and that this slight probability was
‘‘tolerable.’’ Id., 183. The state quotes this language and
suggests that the court’s ‘‘analysis [in McKaskle] is akin
to a harmless error analysis . . . .’’ Although the
court’s analysis in McKaskle may have been similar to
harmless error analysis, that does not change what the
court ultimately determined. The court did not decide
that there was a violation of the defendant’s right to
self-representation but that the error was harmless;
instead, the court determined that there was no error
at all. McKaskle v. Wiggins, supra, 188. Therefore, we
find the state’s argument to be unpersuasive.
Finally, the state avers that both this court and the
Second Circuit have previously found errors in the han-
dling of defendants’ requests to proceed pro se but did
not find structural error. We do not agree with the
state’s reading of the cases on which it relies. See Wilson
v. Walker, 204 F.3d 33 (2d Cir.), cert. denied, 531 U.S.
892, 121 S. Ct. 218, 148 L. Ed. 2d 155 (2000); State v.
Pires, supra, 310 Conn. 222. First, in Pires, we did not
determine that the trial court improperly handled the
request of the defendant, Michael D. Pires, Sr., to repre-
sent himself; in fact, we held the opposite. In that case,
Pires argued that the trial court improperly failed to
canvass him after he invoked his right to represent
himself. State v. Pires, supra, 224–25. We determined,
however, that Pires had not made a clear and unequivo-
cal request to proceed pro se. Id., 238. In the absence
of a clear and unequivocal request, the court had no
obligation to canvass Pires and, therefore, committed
no error. See State v. Flanagan, supra, 293 Conn. 423
(‘‘there can be no infringement of the right to self-
representation in the absence of a defendant’s proper
assertion of that right’’). Because there was no error in
Pires, we could not have applied a harmless error
analysis.8
Second, the circumstances were similar in Wilson.
In that case, the petitioner, James D. Wilson, submitted
a written request to proceed pro se at his criminal
trial, and the trial court held a hearing to consider that
request. Wilson v. Walker, supra, 204 F.3d 35. At that
hearing, the court ultimately denied the request, basing
its ruling in part on Wilson’s refusal ‘‘to answer ques-
tions that would permit [the court] to determine
whether [his waiver of] his right to counsel . . . [was]
a knowing, intelligent and voluntary waiver.’’ (Internal
quotation marks omitted.) Id.; see also id., 38 n.5.
Although the Second Circuit did note, after a review of
the record, that it believed the waiver was knowing,
intelligent, and voluntary, it felt that the court’s denial
was not clear or final because it was based on Wilson’s
refusal to answer certain questions. See id., 38 and n.5.
Further supporting that the trial court’s ruling was not
final was its express invitation to Wilson to reassert his
request. See id., 36. Sometime after the initial hearing,
defense counsel withdrew from the case, and a second
attorney was appointed. Id. The newly appointed coun-
sel reiterated to the court Wilson’s earlier request to
proceed pro se and asked for time to review that request
with Wilson. Id. The court allowed counsel and Wilson
one week to review Wilson’s request to represent him-
self, and, thereafter, neither Wilson nor counsel reas-
serted Wilson’s request for self-representation. Id. In
fact, Wilson voiced no objection when a third attorney
was appointed as substitute counsel for the second
attorney despite the court’s inquiry as to whether the
appointment of this third attorney was ‘‘agreeable’’ to
Wilson. (Internal quotation marks omitted.) Id.
As the preceding discussion illustrates, the Second
Circuit did not determine that the trial court had com-
mitted error and that the error was harmless. Instead,
the Second Circuit held that there was no error because
the trial court never clearly and conclusively denied
Wilson’s request to represent himself and Wilson subse-
quently waived his request by remaining silent in the
face of the court’s express invitation to reassert his
right to self-representation. See id., 38. Moreover, it was
likely important that nothing of substance occurred in
the criminal proceedings between the initial denial of
Wilson’s request to represent himself and the invitation
to renew his request for self-representation. Cf. United
States v. Tucker, 451 F.3d 1176, 1178–79, 1183 (10th Cir.
2006) (reversing defendant’s conviction when trial court
denied request for self-representation prior to voir dire
but reconsidered and granted such request immediately
after voir dire was completed). Our reading of Wilson
is supported by the Second Circuit’s explicit statement
that ‘‘a court’s denial of the right to self-representation
is not subject to harmless error analysis, and requires
automatic reversal of a criminal conviction.’’ Wilson v.
Walker, supra, 204 F.3d 37. It is difficult to conceive of
a reason why the court would make such a statement
if it intended to apply a harmless error analysis.
Thus, Pires and Wilson stand for the proposition
that, when a trial court has not clearly and conclusively
denied a defendant’s request to represent himself, the
defendant may subsequently waive such a request. But,
when a court has clearly and conclusively denied the
request, the defendant does not waive his right to self-
representation by subsequently acquiescing in being
represented by counsel or by failing to reassert that
right. See State v. Jordan, supra, 305 Conn. 20; see also
Williams v. Bartlett, 44 F.3d 95, 101 (2d Cir. 1994) (‘‘The
court’s ruling was categorical. . . . The defendant’s
acquiescence . . . cannot be read to signify waiver of
a constitutionally protected right . . . .’’ [Citation omit-
ted.]). In the present case, there was a clear and conclu-
sive improper denial of the defendant’s request to
represent himself, which is structural error. Because
the denial was clear and conclusive, the defendant’s
subsequent acquiescence in defense counsel’s represen-
tation does not amount to waiver.9
The state suggests that, in this case, the trial court’s
decision, although clear, was not conclusive because
the trial court informed ‘‘the defendant of [the court’s]
willingness to reconsider the issue.’’ After reviewing
the record, however, we conclude the denial was con-
clusive, despite the trial court’s statement that it would
reconsider the matter. In denying the defendant’s
request to represent himself, the court stated: ‘‘Well,
here’s what I’m going to do. . . . I’m not going to grant
[the motion to remove counsel and to allow the defen-
dant to proceed pro se] today. What I’m going to do
is—I am going to take up with counsel the status of
discovery later today. I’m going to make sure that we’ve
got a strict time schedule to get everything that can be
gotten, directly to Attorney Aponte.
‘‘He assures me it’s going to be communicated to you.
. . . [E]verything’s going to be [given] to you, and we’re
not going to start this proceeding until May 26, a full
four weeks away from today.
‘‘If something comes up between now and then, that
you have substitute counsel in and ready to go, [or if]
an issue comes up with regard to discovery, I’m happy
to hear it. I don’t want to say no, because I don’t know
what’s going to come up in the next four weeks.
‘‘But, at this point, I’m not going to grant your motion.
And I’m going to deny the motion for any continuance
in [the] trial date at this time. And I’m going to deny
the motion to discharge counsel or allow you to proceed
pro se.
‘‘If, in the next four weeks, I see some additional
support for those, I’m happy to reconsider them, okay?’’
(Emphasis added.)
Although the trial court did invite the defendant to
reassert his request to represent himself, we nonethe-
less conclude that the trial court’s denial was conclu-
sive. The court conditioned its willingness to reconsider
its ruling on seeing ‘‘some additional support’’ for the
motion. This is unlike the denial in Wilson that the
Second Circuit determined was inconclusive. In Wilson,
the trial court based its denial, in part, on Wilson’s
refusal to answer certain questions that would have
allowed the court to determine whether the waiver of
counsel was knowing and intelligent. See Wilson v.
Walker, supra, 204 F.3d 35; see also id., 38 n.5. Further,
after appointing new counsel, the trial court gave Wil-
son one week to confer with counsel regarding his
motion to represent himself. Id., 36. On the basis of
these circumstances, the Second Circuit concluded it
was clear to both the court and Wilson that his motion
to represent himself was still open for discussion. See
id., 35, 38 and n.5. In the present case, however, the
circumstances are different. The opportunity to have
the court reconsider its decision did not depend on
whether the defendant answered a few more questions,
which was a possibility in Wilson. Instead, the trial
court in the present case wanted to be presented with
additional facts to support the defendant’s request.
Moreover, the additional support the court wanted was
largely outside the control of the defendant. For exam-
ple, whether the state complied with the discovery
schedule and whether Aponte promptly provided the
defendant with discovery materials were beyond the
defendant’s control. A defendant, faced with these cir-
cumstances, could reasonably believe that it would be
futile to again request to proceed pro se. In Williams,
the Second Circuit held that it was reasonable for a
defendant to believe it would be fruitless to renew his
request to proceed pro se when it had been denied
because of ‘‘the advanced stage of the proceedings and
the defendant’s lack of education . . . .’’ Willaims v.
Bartlett, supra, 44 F.3d 101. The court reasoned that
those were obstacles the defendant could not avoid
prior to trial. Id. Likewise, in the present case, it would
be reasonable for the defendant to believe he was not
free to ask the court to reconsider his motion until
there was ‘‘additional support . . . .’’
Because we have determined that the trial court’s
denial of the defendant’s request to represent himself
was clear and conclusive, the defendant’s subsequent
conduct did not effect a waiver of his right to self-
representation. We further conclude that the trial
court’s denial of the defendant’s request was improper
and that the improper denial of such a request is struc-
tural error.10
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
The defendant also filed two pro se motions for a speedy trial, one on
March 1, 2010, and the other on April 23, 2010.
2
The following is the relevant portion of the colloquy between the court
and the defendant regarding the defendant’s background:
‘‘The Court: Sir, the issue is not the time. The issue is, tell me your
background and your qualifications to represent yourself.
‘‘The Defendant: My background is that, I got fourteen years of school,
two years of law enforcement. And I wrote the basic motions I can file. I
can do things like that. I also know about trials—a little bit about trials.
I’ve been on one before.
‘‘Other than that, I don’t trust Mr. Aponte to this point. And, again, I will
not sit in this courtroom. I will not—I will ask to leave. If I’m not—to get
my motions in, or my discovery.
‘‘I’ve been asking Mr. Aponte, and I wrote him letters. And he stated—
he just stated in the court, and it’s on the record. He just—
‘‘The Court: Tell me about your two years in law enforcement. What did
you do?
‘‘The Defendant: I worked for—I worked for the—I worked on campus—
[for] the campus police, arresting powers, and stuff like that. So, I have an
understanding of the law. I do have an understanding of the law.
‘‘The Court: Okay. Campus police, and where was that, sir?
‘‘The Defendant: That’s up in Western Connecticut State [University].
‘‘The Court: Western Connecticut? And did you testify in any trials while
you were with Western Connecticut State [University]?
‘‘The Defendant: Yes, I have.
‘‘The Court: How many would you say?
‘‘The Defendant: Say three.
‘‘The Court: Three trials?
‘‘The Defendant: Also, one trial with the government. I went to trial in
Pennsylvania—I went to trial. I’m capable of handling that.
‘‘The Court: Have you ever represented yourself before?
‘‘The Defendant: Yes, I have.
‘‘The Court: And where’s that?
‘‘The Defendant: That’s in Pennsylvania, sir.
‘‘The Court: And what proceeding was that? Was that a state of Pennsylva-
nia—a commonwealth of Pennsylvania versus—
‘‘The Defendant: [Commonwealth] of Pennsylvania versus Velmon
Braswell.
‘‘The Court: And what kind of charge was that?
‘‘The Defendant: [The] [c]harge was thrown out. I was acquitted on the
charges.
‘‘The Court: What was the charge?
‘‘The Defendant: The charge was thrown out, sir. I don’t have to even
talk about that case.
‘‘The Court: Well, I’m not—
‘‘The Defendant: It’s on my record. It’s in my record. I don’t talk about it.
‘‘The Court: Okay.
‘‘The Defendant: Those are the things I don’t put—I don’t have to defend
myself in that area in this court. That’s—I have a right to sit there and watch
my accused say that. I don’t have to—
‘‘The Court: Really, we’re talking about a little different issue here.
‘‘The Defendant: Yeah. I understand that, but I’m not putting—I’m not
saying certain things.
‘‘The Court: Okay. You choose not to. That’s fine.
***
‘‘The Court: Well, I have to tell you—any other credentials, experiences,
qualifications, that you feel would make me comfortable in allowing you
[to] represent yourself? This is a—these are serious charges.
‘‘The Defendant: I understand that, Your Honor. And I’m asking the court
for some time to get all the discovery sent to me in the jail. And I’ll prepare
my case within a month, without the help of Mr. Aponte.
‘‘The Court: Well, here’s what I’m going to do. I’m going to—I’m not going
to grant that motion today.’’
3
As the court attempted to canvass the defendant regarding his right to
be present during jury selection, the defendant continuously interrupted
the court. He also attempted to leave the courtroom as the court was
addressing him.
4
Practice Book § 44-3 provides: ‘‘A defendant shall be permitted to waive
the right to counsel and shall be permitted to represent himself or herself
at any stage of the proceedings, either prior to or following the appointment
of counsel. 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 assistance of counsel,
including the right to the assignment of counsel when so entitled;
‘‘(2) Possesses the intelligence and capacity to appreciate the conse-
quences of the decision to represent oneself;
‘‘(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-repre-
sentation.’’
5
The defendant argues that the canvass was insufficient, and the state
contends that the canvass substantially complied with the requirements of
Practice Book § 44-3. A canvass is sufficient as long as it establishes that
the defendant’s waiver of counsel is knowing and intelligent. State v. T.R.D.,
supra, 286 Conn. 204; State v. D’Antonio, supra, 274 Conn. 709. The trial
court, however, did not base its ruling on whether the defendant’s waiver
was knowing and intelligent, and, therefore, we need not consider the ade-
quacy of the canvass. Thus, we find the arguments regarding the adequacy
of the canvass irrelevant.
6
We note that, once a trial has begun, the quality of counsel is a proper
factor for the trial court to consider in determining whether a defendant
should be allowed to represent himself for the remainder of the trial. See
State v. Flanagan, supra, 293 Conn. 431–32.
7
In Jordan, the defendant, Victor L. Jordan, filed a pretrial motion to
dismiss his counsel and orally asserted that he wished to represent himself.
State v. Jordan, supra, 305 Conn. 15–16. ‘‘[T]he court summarily denied the
motion to dismiss counsel on the basis that it was substantively unfounded’’;
id., 16; and the court did not address Jordan’s request to represent himself.
See id., 18. We concluded that, although the trial court’s response would
have been appropriate if Jordan had requested the appointment of new
counsel, it was inadequate to address Jordan’s request to represent himself.
Id., 17.
8
In Pires we did state that, ‘‘even if we were to assume that [defense
counsel’s] comments . . . amounted to a clear and unequivocal invocation
of [Pires’] right to self-representation, [Pires] subsequently waived that right
through his conduct following the appointment of [substitute counsel].’’
State v. Pires, supra, 310 Conn. 244–45. Perhaps this is why the state cites
Pires in support of its contention that we have previously indicated that
not every infringement of the right to self-representation is structural error.
Nevertheless, we do not think this dictum changes the result. Even if Pires’
request to represent himself had been clear and unequivocal, that would
not have changed the fact that the court did not improperly deny his right
to self-representation because it never ruled on his request. See id., 242.
Although a defendant does not have to reassert his right to self-representa-
tion once it has been clearly denied by the court; State v. Flanagan, supra,
293 Conn. 426; we have never held that there is no obligation to renew such
claim when the court does not address it. It seems to us that there is a
significant difference between a defendant who waives or forfeits his right
to self-representation after a clear ruling and one who waives or forfeits
the right when there has been no such ruling. In the former situation, it is
likely that the waiver or forfeiture is precipitated by the denial. State v.
Jordan, supra, 305 Conn. 20 (‘‘the denial likely convinced [the] defendant
[that] the self-representation option was simply unavailable, and [that] mak-
ing the request again would be futile’’ [internal quotation marks omitted]).
In the latter situation, contrarily, there has been no court action that would
suggest that the reassertion of one’s right would be futile. Because there
was no ruling on Pires’ unclear and equivocal request to proceed pro se,
and because Pires failed to reassert such a request when given the opportu-
nity, for example, when the court appointed substitute counsel, there was
no error. We also note that nothing of substance happened in the criminal
proceedings between the time of Pires’ request to represent himself and
the appointment of substitute counsel. See State v. Pires, supra, 226.
This does not mean, however, that, after a defendant’s clear and unequivo-
cal request to represent himself, a trial court may simply ignore such a
request and proceed to a critical stage of the proceedings, and thereby avoid
any error simply because it did not make a clear and conclusive ruling on
the defendant’s request. As we noted in part I of this opinion, once a defen-
dant has clearly and unequivocally invoked his right to self-representation,
the trial court is obligated to conduct a canvass in accordance with Practice
Book § 44-3 to determine if his waiver of counsel is knowingly and intelli-
gently made. Our decision in this case does not alter that obligation. Instead,
it suggests there may be some instances in which a defendant asserts and
subsequently waives his right to self-representation before a court clearly
and conclusively rules on the defendant’s request. In such instances, it is
possible that there are circumstances in which the trial court’s delay in
ruling on the request would not constitute error.
9
The state also argues that the defendant forfeited his right to self-repre-
sentation through his behavior following the denial of his request. We do
agree, and have so held, that a defendant may waive or forfeit his right to
self-representation through disruptive behavior. E.g., State v. Jones, supra,
281 Conn. 648; State v. Johnson, supra, 185 Conn. 179. The behavior com-
plained of in the present case, however, followed the court’s improper and
clear denial of the defendant’s request to proceed pro se and therefore
cannot effectuate a forfeiture of the defendant’s right to self-representation.
We note that it would have been a different case if the defendant’s disruptive
behavior followed the granting of his request for self-representation and the
court subsequently appointed counsel to represent him. See, e.g., Faretta
v. California, supra, 422 U.S. 834 n.46 (‘‘the trial judge may terminate self-
representation by a defendant who deliberately engages in serious and
obstructionist misconduct’’).
10
Because we agree with the Appellate Court that the trial court’s April
28, 2010 denial of the defendant’s motion to represent himself was improper
and that such impropriety is structural error, we do not reach the defendant’s
alternative ground for affirmance, namely, whether the trial court’s denial
of the defendant’s July 20, July 27, and August 9, 2010 requests to represent
himself were improper.