DocketNumber： SC 17096; SC 17095
Judges： Katz, Norcott, Sullivan, Whom
Filed Date： 8/2/2005
Status： Precedential
Modified Date： 11/3/2024
Opinion
This court, in State v. Niblack, 220 Conn. 270, 280, 596 A.2d 407 (1991), approved of a
The records and the Appellate Court decisions reveal the following facts and procedural history. “On October 24, 2000, the defendant, through his public defender, pleaded nolo contendere to two separate charges of operating under the influence on two separate occasions in violation of General Statutes § 14-227a and was sentenced by the court [Clifford, J.] to a total effective term of thirty months of imprisonment, execution suspended after twenty-four months, and one year of probation with special conditions.
“On or about October 4, 2001, the defendant was released from prison and began serving his probation. After the defendant refused to participate in an alcohol treatment program, his probation officer applied for arrest warrants for violation of probation on December 10, 2001. On December 11, 2001, the defendant was arraigned on two criminal matters, criminal trespass in the first degree and interfering with an officer, respectively, and the court appointed a public defender as his counsel. On December 18, 2001, the defendant was arraigned on the violation of probation matters and denials were entered. At that time, the court appointed the public defender who was handling the defendant’s criminal matters to represent him in the violation of
“On January 15,2002, the defendant appeared in court with his counsel and indicated that he wanted to represent himself. The court [Gordon, J.[ told the defendant that before allowing him to represent himself, it was going to order a competency examination. On February 27, 2002, when the defendant appeared in court with his counsel, the court, Fischer, J., made an uncontested finding of competency based on the competency report in the file. Again, the defendant raised the issue of self-representation. The court, Fischer, J., allowed the defendant’s counsel to withdraw from the violation of probation and criminal cases, and, on the same date, the defendant filed a pro se appearance in those cases. On March 20,2002, the court, Clifford, J., the prosecutor and the defendant engaged in an on the record plea discussion. The defendant refused any offered plea bargain and insisted on exercising his ‘right for a trial.’
“At the conclusion of the sentencing phase of the violation of probation hearing, there was a brief on the record discussion of the defendant’s pending criminal trespass and interfering cases. Judge Clifford again briefly canvassed the defendant on the issue of self-representation and appointed standby counsel to assist the defendant in the trial of the charges of criminal trespass in the first degree and interfering with an officer. On June 10, 2002, Judge Clifford granted the state’s motion to consolidate those cases for trial. On the same date, during a discussion about whether Judge Clifford had signed an arrest warrant in the case, Judge Clifford asked the defendant, ‘Do you have a problem with me sitting on [this case?]’ The defendant responded that he had ‘[n]o objection.’
“Thereafter, following jury selection on June 12,2002, the case proceeded to trial before Judge Clifford on June 12, 13, 14 and 18, 2002. During trial, there was no mention by anyone of Judge Clifford’s recusal. On June 18, 2002, the jury returned a guilty verdict on one count of criminal trespass in the first degree in violation of § 53a-107 (a) (1) and two counts of interfering with an officer in violation of § 53a-167a (a). Judge Clifford then sentenced the defendant to a total effective term of two years imprisonment, execution suspended after twenty
The defendant filed timely appeals to the Appellate Court from the judgments of the trial court with respect to the judgments of conviction and probation violation. The Appellate Court reversed the judgments in the cases in two separate opinions, concluding that, notwithstanding the defendant’s failure to move for recusal at trial, it was plain error for Judge Clifford to preside over the probation violation hearing and criminal trial after having participated in plea bargaining on the same charges on March 20, 2002, in violation of the Niblack rule. D'Antonio I, supra, 79 Conn. App. 693-94; D'Antonio II, supra, 79 Conn. App. 707. The Appellate Court relied on its decisions in State v. Falcon, 68 Conn. App. 884, 793 A.2d 274, cert. denied, 260 Conn. 924, 797 A.2d 521 (2002), and State v. Washington, 39 Conn. App. 175, 664 A.2d 1153 (1995), and reasoned that a new hearing and a new trial were required because “the existence of impartiality might reasonably be questioned and the fairness and integrity of and public confidence in the judicial proceeding affected when a court presides over the violation of probation hearing after having participated actively in plea negotiations. In this case, the appearance of a fair trial has been lost and a new revocation of probation hearing is warranted.” D'Antonio I, supra, 696; see also DAntonio II, supra, 710 (same conclusion for trial and sentencing in criminal matter). Thereafter, we granted the state’s petitions for certification; see footnote 2 of this opinion; and these appeals followed.
On appeal, the state claims that the Appellate Court improperly reversed the judgments of the trial court on the basis of plain error because: (1) the defendant’s claims with respect to the trial court’s failure to recuse
WHETHER THE TRIAL COURT’S FAILURE TO RECUSE ITSELF FROM PRESIDING OVER THE DEFENDANT’S HEARING AND TRIALS CONSTITUTED PLAIN ERROR REQUIRING REVERSAL
A
Whether the Defendant’s Failure to Raise His Recusal Claims Before the Trial Court Precludes Plain Error Reversal
We begin with the state’s claim that the Appellate Court should not have determined whether the trial court’s failure to recuse itself was reversible plain error because the defendant failed to raise his disqualification claims at trial. The state relies on General Statutes § 51-39 (c), and Practice Book § 1-23, which govern the disqualification of judges, as well as the Appellate Court’s decision in State v. Maluk, 10 Conn. App. 422, 523 A.2d 928 (1987).
A judge must recuse herself or himself from a matter, either sua sponte or “upon motion of either party, if such judicial authority is disqualified from acting therein pursuant to Canon 3 (c) of the Code of Judicial Conduct . . . .”
These mies of practice must be read in conjunction with § 51-39 (c), which provides that, “[w]hen any judge or family support magistrate is disqualified to act in any proceeding before him, he may act if the parties thereto consent in open court.” It is well settled that, in both civil and criminal cases, the failure “to raise the issue of the referee’s disqualification either before or during the trial, can be constmed as the functional equivalent of ‘consent in open court . . . .’” Timm v. Timm, 195 Conn. 202, 205, 487 A.2d 191 (1985) (noting that record revealed no evidence of bias when trial judge failed to disqualify himself after conducting pretrial negotiations in court case); see also State v. Fitzgerald, 257 Conn. 106, 117, 777 A.2d 580 (2001) (noting that record revealed no evidence of bias and defendant’s failure to object after improper disclosure of part B information was “tantamount to consent to the judge’s participation in the case”).
The state’s arguments, however, sweep far too broadly and are dramatically at odds with the purpose of the plain error doctrine, which does not exist to permit reversals as the result of unpreserved technical errors, but rather to prevent the occurrence of “manifest injustice [s]” as the result of particularly “extraordinary” trial errors. (Internal quotation marks omitted.) State v. Alston, supra, 272 Conn. 456. We find instmctive this court’s decision in Cameron v. Cameron, 187 Conn. 163, 444 A.2d 915 (1982). In that case, an issue developed at trial about $4000 that the defendant allegedly had
On appeal, this court stated that, “[w]e would not ordinarily review on appeal a claim that a trial judge should have disqualified himself or declared a mistrial at a certain stage of the proceedings when no such request was made during the trial,” but concluded that, “[w]e are dealing here, however, with an accusation of prejudice against a judge, ‘which strikes at the very core of judicial integrity and tends to undermine public confidence in the established judiciary.’ ” Id., 168. The court invoked the plain error rule, concluding that the trial court’s conduct toward the defendant and counsel caused the appearance of partiality, and that “[i]t is quite evident from our review of the trial transcript that a serious departure from these high standards [of impartiality] occurred in the court below.” Id., 169. The court stated that the trial court had expressed “a preconceived view of the credibility of a witness who had
Applying Cameron and its progeny, we conclude that the state’s argument that these claims lay beyond the ambit of the plain error rule subverts the purpose of that doctrine, which exists to prevent “manifest injustices” that otherwise might occur without consideration of certain “extraordinary” unpreserved claims. (Internal quotation marks omitted.) State v. Alston, supra, 272 Conn. 456. Accordingly, we do not subject trial courts to reversal by ambuscade by reversing judgments on the basis of apparent judicial bias as manifested by genuinely egregious conduct, rather than technical violations of rules of practice. Accordingly, we now turn to the merits of the certified questions.
B
Whether Automatic Reversal is Required When a Trial Court Presides Over a Defendant’s Trial After Having Participated in Plea Bargaining Negotiations
We now turn to the primary legal issue in these appeals, namely, whether it is per se plain error requiring reversal for a trial court to preside, in violation of the Niblack rule, over a defendant’s trial after having participated actively in unsuccessful plea negotiations.
Our inquiry about whether violation of the well established Niblaclc rule constitutes per se plain error begins with a review of the purposes of the rule. In State v. Niblack, supra, 220 Conn. 281, we rejected the defendant’s attack on his guilty pleas to charges of murder, escape from custody and robbery, and concluded that the defendant failed to raise issues of constitutional magnitude requiring Golding review because “the available record fails to indicate that the participation of the judge who presided over and supervised the challenged plea negotiations coerced a plea from the defendant.” We also “approve [d]” in dicta of the method followed by the trial court and the parties with respect to judicial court participation in the plea bargaining process, stating that, “[t]he plea negotiations involved an assistant state’s attorney, defense counsel and eventually a judge who assisted the adversaries in reaching an agreement .... The judge was responsible for conducting plea negotiations and, if an agreement was reached, for holding a plea and sentencing hearing. If negotiations were not successful, however, a judge who was not involved in the plea negotiations would have presided at trial
In so concluding, we discussed the criticisms of active judicial participation in plea bargaining described in prior cases. In State v. Gradzik, 193 Conn. 35, 47, 475 A.2d 269 (1984), this court stated in dicta: “If the record revealed that the judge had been an active participant in negotiating the plea, we would view this claim differently. The dangers of such participation are obvious. In the first place, judicial participation in plea negotiations is likely to impair the trial court’s impartiality. The judge who suggests or encourages a particular plea bargain may feel a personal stake in the agreement (and in the quick disposition of the case made possible by the bargain) and may therefore resent the defendant who rejects his advice. . . . Moreover, the defendant is likely to make incriminating concessions during the course of plea negotiations. ... In the second place, judicial participation in plea discussions creates a misleading impression of the judge’s role in the proceedings. As a result of his participation, the judge is no longer a judicial officer or a neutral arbiter. Rather, he becomes or seems to become an advocate for the resolution he has suggested to the defendant.”
We reiterated our approval of the Niblack rule in Safford v. Warden, supra, 223 Conn. 194 and n.16. In Safford, we affirmed the denial of a habeas corpus petition, rejecting, inter alia, the petitioner’s claim that the judge who had sentenced him was barred from doing so by the Code of Judicial Conduct because he had participated in the plea bargaining that led to the petitioner’s guilty plea to sexual assault charges. Id., 188-90. We concluded that the claims were not appropriate for a habeas petition because “[a] claim that a judge should not have participated in plea negotiations, based solely upon the appearance of partiality, does not rise to the level of a constitutional violation. . . . Nor does it constitute a miscarriage of justice, or other prejudice justifying the issuance of a writ of habeas corpus.” (Citation omitted.) Id., 190-91. We also rejected the petitioner’s claim that his trial counsel was ineffective for failing to move for the trial court’s disqualification; id., 194; and we again recited our approval of the Niblack rule governing plea negotiations. Id., 194 n.16. We also stated that this “procedure must be distinguished from the situation where the judge who participates in plea negotiations is also responsible for conducting the trial and, therefore, for sentencing the defendant in the event of a conviction,” because, that situation gives rise to the “dangers we identified in State v. Gradzik, [supra, 193 Conn. 47] . . . .” Safford v. Warden, supra, 223 Conn. 194 n. 16. We noted that adherence to the Niblack rule eliminates these risks because
We most recently addressed judicial participation in plea bargaining in State v. Revelo, 256 Conn. 494, 497, 775 A.2d 260, cert. denied, 534 U.S. 1052, 122 S. Ct. 639, 151 L. Ed. 2d 558 (2001), wherein the trial court stated that it would sentence the defendant to eight years imprisonment in accordance with a plea offer that had been made. The defendant, however, wished to move for the suppression of certain evidence. Id. The trial court told the defendant that, if the motion was unsuccessful, the sentence would be nine years imprisonment. Id., 497-98. Thereafter, the trial court held a hearing and denied the motion to suppress, and then accepted the defendant’s plea of nolo contendere and sentenced him to nine years imprisonment. Id., 498-99.
On appeal, we concluded that “principles of due process prohibit a court from retaliating against a defendant merely for exercising a statutory or constitutional right. In this case, the trial court told the defendant that he would be required to serve one extra year in prison if he agreed to plead guilty only after exercising his right to a judicial determination of his motion to suppress. By requiring that additional period of incarceration for no reason other than the defendant’s decision to pursue his motion to suppress, the trial court punished the defendant for doing what the law plainly allow[ed] him to do ... . Although a corut may deny leniency to an accused who, like the defendant, elects to exercise a statutory or constitutional right, a court may not penalize an accused for exercising such a right by increasing his or her sentence solely because of that election.”
Our analysis in Revelo included a comprehensive review of the restrictions on judicial participation in plea bargaining. We began “by reaffirming our recognition of the critical role that pretrial negotiations play in the criminal justice system.”
Niblack established a clear and bright line rule standing for the proposition that it is improper for a trial judge to preside over a defendant’s trial after having participated actively in unsuccessful plea negotiations in the case. Moreover, although it is well established that the Niblack rule is itself not of constitutional dimensions; Safford v. Warden, supra, 223 Conn. 190-91; scrupulous adherence thereto nevertheless aids in the
We conclude that establishing a violation of the Niblack rule does not, therefore, excuse the defendant from “demonstrating] that the failure to grant relief will result in manifest injustice.” (Internal quotation marks omitted.) Id. Rather, the defendant must demonstrate on appeal that the record in the case actually implicates the dangers of judicial participation in plea negotiations, the primary examples of which were discussed in Safford v. Warden, supra, 223 Conn. 194 n. 16.
Indeed, our rejection of a per se reversal rule for Niblack violations is consistent with the approach to this issue taken by the federal courts and the majority of our sister states.
In conducting this harmless error review, in the absence of other claimed trial errors, the federal courts of appeal “examine whether the district court’s participation might reasonably be said to have affected the court’s impartiality in the conduct of the trial or sentencing.” United States v. Crowell, supra, 60 F.3d 205; see also United States v. Diaz, supra, 138 F.3d 1364 (“most importantly, the district court based [the defendant’s] sentence on entirely sound reasons and displayed no bias in sentencing him”). For example, in United States v. Crowell, supra, 205, the United States Court of Appeals for the Fifth Circuit concluded that the trial court’s participation in plea bargaining caused no harm with respect to the defendant’s trial because the defendant did not raise any claims on appeal with respect to sufficiency of the evidence, evidentiary rulings, jury instructions or other trial procedure. The court did, however, conclude that there was harm with respect to the defendant’s sentence because: (1) the government did not argue harmless error; and (2) comments made by the trial court during the plea negotiations indicated a “premature commitment to a sentence of at least a certain level of severity.” Id., 205. Accordingly, it affirmed the defendant’s convictions, but vacated the sentences and remanded for resentencing by a different judge. Id., 206-207.
We also find helpful the approaches taken by other state courts, such as the Florida Supreme Court’s recent decision in Wilson v. State, supra, 845 So. 2d 152, wherein the court recognized that “imposition of a harsher sentence, without explanation on the record after judicial participation in the plea negotiations, does
The vast majority of our sister states have, despite their varying degrees of acceptance of judicial participation in plea bargaining, adopted approaches similar to that taken by both Florida and the federal courts for assessing any harm that may have befallen a defendant as a result of that practice. See Pelmer v. State, 389 So. 2d 584, 589-91 (Ala. Crim. App. 1980) (trial court aware of defendant’s rejection of state’s two year offer, and sentenced defendant to five years after trial, but no indication of vindictiveness because sentence proper in light of statutory limit and defendant’s prior felony convictions); People v. Clark, 183 Colo. 201, 203, 515 P.2d 1242 (1973) (stating that judicial participation “in plea bargaining is fundamentally unfair and brings to bear the full force and majesty of a court on a defendant,” and concluding that resentencing was required because of trial court’s assurance during unsuccessful negotiations that defendant would be “ ‘put away forever’ ” if he was convicted after trial); German v. United States, supra, 525 A.2d 603 (success of claim for retaliation requires that the defendant “affirmatively demonstrate ‘a reasonable likelihood of vindictiveness’ on the part of the trial judge”); People v. Dennis, 28 Ill. App.
Accordingly, we conclude that a trial court presiding over a trial after having first participated in unsuccessful plea bargaining efforts is not, by itself, plain error
C
Probation Violation Hearing
We begin with the record of the probation violation hearing, which was held before Judge Clifford on April 3 and 17, 2002. The hearing began with the trial court and the defendant remembering each other from the prior proceedings, followed by a canvass of the pro se defendant to ensure that he was aware of his rights and
Shortly thereafter, Carabetta met with the defendant to discuss the recommended treatment plan. At this meeting, the defendant became hostile; Carabetta told the defendant that, if he refused to go into the program, she would obtain a warrant for violation of probation. She testified that he told her to “[g]o ahead and get your warrant and I’ll see you in court at a hearing,” and that he “could do six months in jail no problem.” She then directed the defendant to leave, and obtained the
After the trial court again reminded him of his right to remain silent, the defendant then testified on his own behalf. Shortly after the defendant was sworn, the trial court observed that he was “[njervous” and seemed like he was “going to get emotional,” and therefore, sua sponte offered him a break so that he could compose himself. After the break, the defendant explained, in narrative form, his version of what had occurred. He explained that he disagreed with the inpatient treatment and anger management classes directed by probation, and discussed his efforts to obtain employment and find a place to live. The defendant apparently became emotional again as the trial court offered him a glass of water during this narrative. After the defendant concluded his narrative, the state cross-examined him briefly. The defendant conceded on cross-examination that he had refused to comply with the directions of the probation officer. He offered no other witnesses or evidence on his own behalf.
The trial court then heard brief closing arguments from the state and the defendant, and concluded that the state had proven by a fair preponderance of the evidence that the defendant had violated the terms of his probation.
The trial court then acknowledged its sympathy with the defendant’s “frustration,” and the difficulties inherent in complying with the probation conditions while
We conclude that the trial court presided over the probation violation proceedings in a fair and even
D
Criminal Jury Trial on Interfering With an Officer and Trespass Charges
We next consider the record from the defendant’s criminal jury trial on the trespass and interfering with an officer charges. When the trial began, the court ordered the removal of the defendant’s handcuffs, but denied his motion for a bond reduction, finding no change in circumstances. The trial court then heard oral argument on the defendant’s motion to dismiss the interfering with an officer charges, which was based on the police officers’ alleged attack on him and failure
Thereafter, a jury was empaneled and the trial commenced on June 13, 2002. The trial court ordered the removal of the defendant’s handcuffs and leg irons before the jury entered the courtroom for the court’s preliminary remarks.
Five police officers returned to 137 Wopowog Road the next day to arrest the defendant pursuant to the warrant. When another officer telephoned the defendant there and directed him to surrender to the incoming police officers, the defendant hung up the telephone during the conversation. When the officers arrived at the residence, they saw the defendant in the kitchen cutting meat with a large filleting knife. They told the defendant that they had an arrest warrant for him, but he refused to come out of the house. Using a key provided by the defendant’s mother, the officers entered the house with weapons drawn and ordered the defendant to drop the knife. The defendant placed the knife on a nearby counter, but remained within reach of the knife—continuing to alternate looking at the officers and the knife. The defendant refused to comply with the officers’ repeated directions to walk backward away from the knife. At that point, one officer sprayed the defendant with pepper spray and he began to scream
During the proceedings, the defendant moved for a judgment of acquittal on the criminal trespass charges, contending that: (1) with respect to the charge based on the restraining order, the court should construe the restraining order as limited to six months; and (2) the state had produced insufficient evidence with respect to the charge based on his mother’s statement that he was banned from the house. The state opposed the motion. The trial court denied the motion with respect to the restraining order personally communicated to the defendant, concluding that there was sufficient evidence to create a jury question, but granted the defendant’s motion for acquittal with respect to the trespass charges based on the restraining order. The trial court concluded that “especially since it is an element of the crime I don’t believe that there actually was a valid restraining order outstanding. There was a restraining order outstanding, but I don’t believe it was a valid one, so I am going to grant a judgment of acquittal as to that count of criminal trespass.” Thereafter, the defendant presented his defense, and the jury convicted him of
After the jury’s verdict was received, the trial court gave the defendant an option with respect to the scheduling of sentencing. He conferred with standby counsel and elected to be sentenced that same day. The state, citing the defendant’s record of twenty prior criminal convictions, asked the court to impose the maximum possible sentence on all counts of three years. The defendant expressed his remorse for the effect of his actions on his family, and stated his desire to move on with his life. The trial court noted that imposing a consecutive sentence on the interfering with an officer counts might raise double jeopardy implications because they arose from the same conduct; see also part III of this opinion; and that the maximum available sentence was, therefore, two years. In discussing the various purposes of sentencing, the trial court discussed the defendant’s criminal history and his history of psychological and substance abuse problems, and encouraged him to seek help.
Having reviewed the proceedings on these criminal charges, we conclude that the record demonstrates no manifest injustice requiring reversal under the plain error doctrine. First, the plea negotiations could not have colored the factual determinations because a jury was the fact finder, and, in any event, the facts were not discussed during plea negotiations. See footnote 4 of this opinion. Indeed, the defendant consented affirmatively to the trial court’s presiding over the trial, despite the trial court’s concerns with respect to the arrest warrant. Furthermore, the trial court granted the defendant’s motion for acquittal with respect to the restraining order-based trespass charges, which was a decision that was different from the judge’s preliminary assessment of the case during plea negotiations. See footnote 4 of this opinion. Moreover, during the trial, the court constantly was solicitous of the defendant by: (1) sua sponte offering him a break when he became upset while questioning his mother about his deceased father; (2) providing him with tissues and water when he became upset while testifying about the events that gave rise to his trespassing arrest; (3) explaining why it was permissible for the prosecutor to question him about the September, 1999 incident with his mother that gave rise to a restraining order; and (4) providing guidance with respect to various points of procedure, such as opportunities for rebuttal and the conduct of closing arguments.
Moreover, although the trial court would have been better advised not to have commented at sentencing about the “reasonable disposition” that previously had been offered to the defendant; see footnote 33 of this
II
ALTERNATE GROUND FOR AFFIRMANCE: WHETHER THE DEFENDANT KNOWINGLY AND INTELLIGENTLY WAIVED HIS RIGHT TO COUNSEL
The defendant posits, as an alternate ground for affirming the judgment of the Appellate Court, a claim that he proceeded pro se without making a knowing and intelligent waiver of his constitutional right to the assistance of counsel. Specifically, the defendant contends that the trial court, Fischer, J., did not adequately canvass him pursuant to Practice Book § 44-3
The record reveals the following additional facts and procedural history. In December, 2001, the trial court, Fischer, J., appointed a public defender to represent the defendant in both the criminal and probation violation matters. At proceedings conducted in January, 2002, the defendant expressed to the trial court, Gordon, J., his desire to represent himself, and to be placed on the speedy trial list. The trial court discussed the defendant’s wish with him, ordered a competency examination pursuant to General Statutes § 54-56d, and
We begin with the applicable standard of review. We review the trial court’s determination with respect to whether the defendant knowingly and voluntarily elected to proceed pro se for abuse of discretion. See, e.g., State v. Bangulescu, 80 Conn. App. 26, 43, 832 A.2d 1187, cert. denied, 267 Conn. 907, 840 A.2d 1171 (2003). Recognizing the constitutional implications attendant to Golding review, we do not review the proceedings for strict compliance with the prophylactic rule of Practice Book § 44-3, but rather for evidence that the waiver of counsel was made knowledgeably and voluntarily. See State v. Webb, 238 Conn. 389, 429, 680 A.2d 147 (1996) (“The defendant, however, does not possess a constitutional right to a specifically formulated canvass. His constitutional right is not violated as long as the court’s canvass, whatever its form, is sufficient to establish that the defendant’s waiver was voluntary and knowing.”); State v. Gethers, 193 Conn. 526, 540, 480 A.2d 435 (1984)
“The right to counsel and the right to self-representation present mutually exclusive alternatives. A criminal defendant has a constitutionally protected interest in each, but since the two rights cannot be exercised simultaneously, a defendant must choose between them. When the right to have competent counsel ceases as the result of a sufficient waiver, the right of self-representation begins. . . . Put another way, a defendant properly exercises his right to self-representation by knowingly and intelligently waiving his right to representation by counsel. . . . State v. Day, 233 Conn. 813, 821, 661 A.2d 539 (1995).
“Practice Book § [44-3] was adopted in order to implement the right of a defendant in a criminal case to act as his own attorney .... State v. Gethers, [supra, 193 Conn. 532]. Before a trial court may accept a defendant’s waiver of counsel, it must conduct an inquiry in accordance with § [44-3], in order to satisfy itself that the defendant’s decision to waive counsel is knowingly and intelligently made. State v. Day, supra, 233 Conn. 822. Because the § [44-3] inquiry simultaneously triggers the constitutional right of a defendant to represent himself and enables the waiver of the constitutional right of a defendant to counsel, the provisions of§ [44-3] cannot be construed to require anything more than is constitutionally mandated. Id.; State v. Townsend, 211 Conn. 215, 220, 558 A.2d 669 (1989); [State v.] Gethers, supra, 534.
“[A] defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation .... Faretta v.
“None of these authorities, however, stands for the proposition that a defendant must be specifically informed of the particular elements of the crimes charged before being permitted to waive counsel and proceed pro se. In fact, the Court of Appeals for the Ninth Circuit has stated that perfect comprehension of each element of a criminal charge does not appear to be necessary to a finding of a knowing and intelligent waiver. United States v. Robinson, 913 F.2d 712, 715 (9th Cir. 1990) [cert. denied, 498 U.S. 1104, 111 S. Ct. 1006, 112 L. Ed. 2d 1089 (1991)]. A discussion of the elements of the charged crimes would be helpful, and may be one of the factors involved in the ultimate determination of whether the defendant understands the
“The multifactor analysis of § [44-3], therefore, is designed to assist the court in answering two fundamental questions: first, whether a criminal defendant is minimally competent to make the decision to waive counsel, and second, whether the defendant actually made that decision in a knowing, voluntary and intelligent fashion. ... As the United States Supreme Court recently recognized, these two questions are separate, with the former logically antecedent to the latter.” (Citation omitted.) State v. Day, supra, 233 Conn. 822-23. Inasmuch as the defendant’s competence is uncontested, we proceed to whether the trial court abused its discretion in concluding that the defendant made the waiver decision in a knowing, voluntary, and intelligent fashion.
Although the transcript of the February 27, 2002 canvass does not itself adhere strictly factor-by-factor to Practice Book § 44-3, we conclude that the record demonstrates that the defendant’s waiver of counsel was knowing and voluntary.
Ill
WHETHER THE DEFENDANT’S TWO INTERFERING WITH AN OFFICER CONVICTIONS ARE A DOUBLE JEOPARDY VIOLATION
The defendant’s final claim is that his two interfering with an officer convictions violate federal and state
“Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” (Internal quotation marks omitted.) State v. Chicano, supra, 216 Conn. 706. “It is well settled that [t]he proper double jeopardy inquiry when a defendant is convicted of multiple violations of
The defendant’s claim is controlled by the Appellate Court’s decision in State v. Jenkins, supra, 40 Conn. App. 602-603, wherein three police officers attempted to apprehend a defendant as the suspect in an attempted carjacking. “The defendant pushed two officers away and attempted to flee. All three officers pursued the defendant until [Officer R] tackled the defendant. The defendant struggled with the three officers and attempted to grab [Officer R’s] gun. During the struggle, [Officer R] sustained a painful cut on his elbow. At some point during the struggle, [Officer N] informed the defendant that he was under arrest. While being taken to a police vehicle, the defendant, by wrapping his legs around a signpost, further hindered [Officer N]. [Officer N] and [Officer R] forcibly removed the defendant from the post and placed him in the police vehicle. Once inside the vehicle, the defendant repeat
In the present case, the information charged and the defendant was convicted of two violations of § 53a-167a (a), that while arising from the same general series of events, indeed within minutes of each other, nevertheless were based on two distinct acts involving different officers: (1) refusing to surrender peacefully when he was told by telephone that the officers had an arrest warrant for him; and (2) refusing the order to walk away from the knife toward the officers and kicking
The judgments of the Appellate Court are reversed, and the cases are remanded to that court with direction to affirm the judgments of the trial court in case SC 17096 and case SC 17095.
In this opinion BORDEN, PALMER, VERTEFEUILLE and ZARELLA, Js., concurred.
In appeal Docket No. SC 17095, we granted the state’s petition for certification limited to the following issue: “Did the Appellate Court properly reverse the judgment of violation of probation and the ensuing imposition of sentence on the basis of plain error?" State v. D’Antonio, 266 Conn. 930, 837 A.2d 803 (2003).
In appeal Docket No. SC 17096, we granted the state’s petition for certification limited to the following issue: “Did the Appellate Court properly reverse the judgments of conviction on the basis of plain error?” State v. D’Antonio, 266 Conn. 930, 837 A.2d 803 (2003).
The appeals were briefed separately, but were argued together before this court. We have consolidated them for resolution because they raise the same legal issue and arise from a common factual and procedural background.
“On the same date, the defendant also pleaded nolo contendere to one count of disorderly conduct in violation of General Statutes § 53a-182 and was sentenced to sixty days imprisonment, running concurrently with the sentence for the motor vehicle offenses.” D’Antonio I, supra, 79 Conn. App. 685 n.2.
We set forth the contents of the plea discussion in their entirety:
“The Court: Who’s this now?
“[The Prosecutor]: This is Louis D’Antonio, Your Honor. This matter—I called it earlier. We had at least discussed it. I did check with probation. It is not consecutive. It was a concurrent sentence, so. I just wanted to be sure. He owes six months.
“The Court: You representing yourself, sir?
“[The Defendant]: Yes, sir, I am.
“The Court: It’s never a smart move. I’m the one who sentenced you originally, right? You’ve got [thirty] months, suspended after [twenty-four] months, correct? You’ve got two [violation of probations] which basically you owe six months on that. You’ve got a trespass one where you can get up to a year; interfering you can get up to a year. Your exposure is two and a half years. You understand that?
“[The Defendant]: Yes. I understand that.
“The Court: Is there any kind of offer from the state on these?
“[The Prosecutor]: Priortothe [violation of probation], one year execution suspended, six months on the criminal trespass.
“The Court: One year what? Suspended sentence?
“[The Prosecutor]: It was six months and—one year after six months. And then there was no offer on the interfering and the [violation of probations].
“The Court: But if it was known he was on probation, would the offer still be like a year after six months if he was interested in that? I don’t know if you are.
“The Court: You are really not eligible. Are you serving a sentence now?
“[The Defendant]: No, I’m not serving a sentence.
“The Court: You’re not eligible for a speedy trial until you’ve been incarcerated for eight months. Let me just say this, sir. I know you are representing yourself. You know, violation of probation, with all due respect, you don’t— they’re not that hard to prove. You do something on probation, they violate the terms of it, that’s six months right there.
“[The Defendant]: I’m entitled to a hearing, I’m sure of that.
“The Court: Listen. I’m trying to help you. Okay. What I’m trying to tell you, it’s not hard to prove those. You go to a hearing on that—you know, it’s not that difficult. You’re not even in front of a jury. It’s in front of a judge. If the judge finds you in violation, bingo, you’ve got six months. The offer is a year after six months.
“[The Defendant]: I got three months in right now, sir.
“The Court: That’s good.
“[The Defendant]: Well, at the time of the arrest the police removed $500 from my front pocket which would have been bond money for that particular—
“The Court: You’re not hearing me. You are going to hurt yourself. You’re not hearing me.
“[The Defendant]: I’m not giving up my right for a trial.
“The Court: Listen. You can have your right to a trial. I’m just trying to tell you to use some common sense. Okay. You’ve already got a lot of time. If you want to have your trial, you can end up doing two and a half years. You owe six months on the probation. The offer is six months in jail. You’ve got three months in.
“[The Defendant]: That was only on the [violation of probation] offer— files. Sir, that wasn’t on the criminal trespass.
“The Court: It’s on something right now, a year after six months. That’s a good offer.
“[The Defendant]: I’m not pleading guilty to it because—
“The Court: Listen. I could care less if you go to trial and get the maximum. I’m just trying to do this for you. If you want to have a trial, go ahead. I could care less.
“[The Defendant]: Well, Your Honor, it’s not nothing to me.
“The Court: I’m just trying to help you out, pal. I could care less. You don’t want to listen to me, go ahead we’ll put you down for trial.
“[The Defendant]: The warrant was signed because of a valid restraining order which was one year and eight months old. Restraining orders last for six months.
“The Court: You’re wrong, but that’s all right. I mean—
“[The Defendant]: You’re the guy who sentenced me and you ordered— you said that there’s no contact being ordered on the day of your sentencing.
“The Court: Fine. You know more than me. That is fine. You’re not going to be in front of me. I guess we should schedule it for a hearing. You represent yourself. And, listen, I did my best to try to help you out. If it doesn’t work out, it doesn’t work out. Nothing off me. I could care less.
“[The Defendant]: I know article [sixth] of the constitution you took an oath to make sure that you abide by the rules of the constitution.
“The Court: I’m out of this. I’m trying to help you work the case to your benefit. You want your trial, you get all your rights—all the rights you want and the judge can sentence you to whatever he or she wants.
“[The Defendant]: Yup.
“The Court: That’s what you’ve got to be careful of.
“[The Defendant]: Also being held right now on all cases, all files on bond.
“The Court: Excellent point. I don’t know what it means. Put this over for a hearing then.
“[The Prosecutor]: We can put the [violation of probation] down for a hearing. Start there. The other two cases—start there. If we lose that or win that, fine, move on to the trial. Start with the [violation of probation].
“The Court: When do you want to have a hearing?
“[The Defendant]: As soon as possible.
“The Court: All right. Let’s schedule—I will have to put it in front of another judge because I’m not going to handle it. Doesn’t matter to me. I’ve got to find a day that another judge is going to be available to hear- it. Why don’t I go two weeks from today? Can you tell—April 3rd. And tell case flow to put it down at 2 o’clock.
“[The Defendant]: 2 o’clock.
“The Court: All right. Thank you, sir.
“[The Defendant]: Excuse me. Next time I appear in court, could you order these sheriffs to unhandcuff me in the front so that—while I’m representing myself.
“The Court: If you’re representing yourself, don’t worry about that. We’ll take care of that. That is not a problem.
“[The Defendant]: Very good.
“[The Prosecutor]: One issue was raised by the probation intake person. I didn’t specifically ask for an [alternate incarceration program pursuant to General Statutes § 53a-39a], I don’t know if the court wants an [alternate incarceration program]. Obviously, you’re going—
“The Court: Put an [alternate incarceration program] on that, § 53a-39a.
“[The Prosecutor]: Yes, thank you, Your Honor.”
General Statutes § 51-39 (c) provides: “When any judge or family support magistrate is disqualified to act in any proceeding before him, he may act if the parties thereto consent in open court.”
Practice Book § 1-23 provides: “A motion to disqualify a judicial authority shall be in writing and shall be accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification and a certificate of the counsel of record that the motion is made in good faith. The motion shall be filed no less than ten days before the time the case is called for trial or hearing, unless good cause is shown for failure to file within such time.”
Canon 3 (c) of the Code of Judicial Conduct provides in relevant part: “(1) A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:
“(A) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding ... .
“(C) the judge knows that he or she, individually or as a fiduciary, or his or her spouse or minor child residing in the judge’s household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding . . . .”
Cf. State v. Santangelo, 205 Conn. 578, 601-603, 534 A.2d 1175 (1987) (reviewing claim that trial court should have recused itself from sentencing after it received letter from detective “containpng] unsubstantiated, inflammatory comments and accusations concerning the defendant,” despite defendant’s failure to comply with applicable rules of practice requiring written disqualification motion before trial court).
The state’s reliance on State v. Maluk, supra, 10 Conn. App. 422, is misplaced. In that case, the Appellate Court declined to review an unpreserved claim that the trial court should have recused itself from sentencing the defendant because it had participated in plea negotiations. Id., 424-25. Although the Appellate Court emphasized the defendant’s failure to move for recusal in accordance with applicable rules of practice, the court also stated that the “record and transcript in this case dramatically illustrate the rationale] behind Practice Book § 997 [now § 1-23]. The transcript does not indicate the degree, if any, to which [the judge] participated in any plea negotiations involving the defendant.” Id., 425-26. The court stated that this inadequate record rendered appellate review impossible because “we have no way of determining whether the Judicial Code has been violated.” Id., 426. The present case is distinguishable from Maluk because the record is adequate for review, as transcripts are available of all relevant proceedings.
In State v. Gradzik, supra, 193 Conn. 45, the defendant was convicted of burglary after a jury trial that had followed unsuccessful plea negotiations. The defendant claimed on appeal that the trial court improperly failed to grant the defendant’s motion for recusal after it had participated in plea negotiations. Id., 44-45. This court rejected the defendant’s claims, concluding that the trial court’s statements that: (1) it only would accept a plea agreement without a sentencing recommendation; and (2) stated the procedure for disposing of probation violation charges against the defendant in the event of a guilty plea on the burglary charges, did not amount to participation requiring disqualification. Id., 46-47. In addressing the defendant’s claims, the court also noted that “the sentence imposed was eminently fair and compassionate. Although the defendant had a lengthy criminal record, including five violations of probation, and had failed to avail himself of drug rehabilitation, the court suspended the sentence after one year with the condition that the defendant enter a drug rehabilitation program.” Id., 47-48.
We distinguished Revelo from Bordenkircher v. Hayes, 434 U.S. 357, 362, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978), “which sanctions the government’s practice of threatening increased charges during the course of plea negotiations and making good on the threat if the defendant refuses to enter a plea.” State v. Revelo, supra, 256 Conn. 514. We noted that this may be part of the “give-and-take” of plea bargaining between a prosecutor and a defendant, but “[s]uch is not the case when, as in this case, the court, itself, dictates the terms of a plea agreement that exacts a penalty on the defendant solely for asserting his right to challenge the constitutionality of the search and seizure that resulted in his arrest and prosecution.” (Internal quotation marks omitted.) Id, 515.
‘“Whatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of [the] criminal justice system.’ Blackledge v. Allison, 431 U.S. 63, 71, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977). Indeed, the United States Supreme Court has stated that ‘[t]he disposition of criminal charges by agreement between the prosecutor and the accused ... is an essential component
“ ‘Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned.’ Santobello v. New York, 404 U.S. 257, 260-61, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971).” State v. Revelo, supra, 256 Conn. 505-506.
These dangers include: “(1) the trial judge’s impartiality may tmly be compromised by his own perception of ‘a personal stake in the agreement,’ resulting in resentment of the defendant who rejects his suggested disposition, (2) the defendant may ‘make incriminating concessions during the course of plea negotiations,’ and (3) the trial judge may become or appear to become an advocate for his suggested resolution.” Safford v. Warden, supra, 223 Conn. 194 n.16.
The defendant contends that the harmless error approach taken by the federal court is inapposite because the federal rule is an absolute bar on judicial involvement in plea bargaining. The defendant argues similarly with respect to states that have adopted procedural rales governing judicial participation in plea negotiations that are different from Connecticut’s. These are, however, distinctions without a difference, because the risks attendant to judicial participation in plea negotiation are the same, regardless of the degree to which such participation is prohibited or permitted in a jurisdiction. Trial court adherence to the prophylactic rules governing participation in plea bargaining has the salutary effect of eliminating or minimizing those risks, as well as removing another arrow from the defendant’s appellate quiver. Adherence or departure does not, however, alter the key inquiry, namely, whether the record discloses the realization of those risks.
Rule 11 of the Federal Rules of Criminal Procedure governs pleas, and provides in relevant part: “(a) Entering a Plea.
“(1) In General. A defendant may plead not guilty, guilty, or (with the court’s consent) nolo contendere. . . .
“(c) Plea Agreement Procedure.
“(1) In General. An attorney for the government and the defendant’s attorney, or the defendant when proceeding pro se, may discuss and reach a plea agreement. ÍTie court must not participate in these discussions. If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may specify that an attorney for the government will:
“(A) not bring, or will move to dismiss, other charges;
“(B) recommend, or agree not to oppose the defendant’s request, that a particular sentence or sentencing range is appropriate or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request does not bind the court); or
“(C) agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing
“(2) Disclosing a Plea Agreement. The parties must disclose the plea agreement in open court when the plea is offered, unless the court for good cause allows the parties to disclose the plea agreement in camera.
“(3) Judicial Consideration of a Plea Agreement.
“(A) To the extent the plea agreement is of the type specified in Rule 11 (c) (1) (A) or (C), the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report.
“(B) To the extent the plea agreement is of the type specified in Rule 11 (c) (1) (B), the court must advise the defendant that the defendant has no right to withdraw the plea if the court does not follow the recommendation or request.
“(4) Accepting a Plea Agreement. If the court accepts the plea agreement, it must inform the defendant that to the extent the plea agreement is of the type specified in Rule 11 (c) (1) (A) or (C), the agreed disposition will be included in the judgment.
“(5) Rejecting a Plea Agreement. If the court rejects a plea agreement containing provisions of the type specified in Rule 11 (c) (1) (A) or (C), the court must do the following on the record and in open court (or, for good cause, in camera):
“(A) inform the parties that the court rejects the plea agreement;
“(B) advise the defendant personally that the court is not required to follow the plea agreement and give the defendant an opportunity to withdraw the plea; and
“(C) advise the defendant personally that if the plea is not withdrawn, the court may dispose of the case less favorably toward the defendant than the plea agreement contemplated. . . .
“(h) Harmless Error. A variance from the requirements of this rule is harmless error if it does not affect substantial rights.” (Emphasis added.)
Florida’s highest court permits trial judges to participate in plea negotiations subject to prophylactic limitations “necessary to minimize the potential coercive effect on the defendant, to retain the function of the judge as a neutral arbiter, and to preserve the public perception of the judge as an impartial dispenser of justice.” (Internal quotation marks omitted.) Wilson v. State, supra, 845 So. 2d 151. The restrictions require that the proceedings be on the record and that the trial court may not: (1) initiate the plea discussions; (2) “state nor imply alternative sentencing possibilities which hinge upon future procedural choices, such as the exercise of a defendant’s right to trial”; and (3) fail to permit the defendant to withdraw his guilty plea “if the judge later determines that a greater sentence must be imposed.” (Internal quotation marks omitted.) Id. Florida does not, however, require automatic recusal in the event that negotiations are unsuccessful; the same judge may later preside. Id.
In Wilson v. State, supra, 845 So. 2d 157-58, the court applied its totality of the circumstances test to the two consolidated cases before it, and concluded that resentencing was required where the trial court “urg[ed] [the defendant] to accept the plea offer of thirty years and statfed] that if [the defendant] chose to go to trial he ‘certainly’ would not get that low,” as well as the forty year disparity between the offer and the sentence imposed. In the other case, the trial court had offered the defendant a 128 month sentence in exchange for a guilty plea, which was withdrawn when the defendant asked for a hearing. Id., 158. After the hearing, the court sentenced the defendant to 150 months without explanation, and the record provided none. Id. The court concluded that these circumstances in both cases had raised a presumption of judicial vindictiveness that the state had failed to rebut because of the lack of explanation for the sentences. Id.
See also Fermo v. State, 370 So. 2d 930, 932-33 (Miss. 1979) (stating prohibition on judicial participation in plea negotiations, but concluding that reversal was not warranted because that participation had been induced by defendant’s attorney); Ryder v. State, 83 P.3d 856, 863 (Okla. Crim. App.) (not improper when trial court “merely advised . . . that the [state’s] offer was a good one and that he should consider the advice of counsel and accept the offer” and finding no prejudice when defendant rejected offer and proceeded to trial), cert. denied, U.S. , 125 S. Ct. 215, 160 L. Ed. 2d 146 (2004); Wright v. State, 776 S.W.2d 763, 767 (Tex. App. 1989) (concluding that it was improper for trial court sua sponte to initiate plea discussions, but that error was harmless because coercion concerns were not present because defendant declined offer, and jury was not aware of plea conference; no sentencing claim).
Moreover, we note that this approach is consistent with our decision in State v. Fitzgerald, supra, 257 Conn. 106. In Fitzgerald, the defendant was charged with driving while intoxicated in a two part information because, with two prior convictions for the same offense, “he was subject to the enhanced penalty provisions of [General Statutes] § 14-227a (h) (3).” Id., 108. “The defendant was charged in a two part information according to the provisions of Practice Book § 36-14, formerly § 619. Part A of the information charged the defendant with operating a motor vehicle while under the influence of intoxicating liquor. Part B of the information charged the defendant with two previous convictions of the same offense.” Id., 108-109. Prior to the commencement of a bench trial, the prosecutor improperly revealed to the trial court, the existence of the part B information in violation of Practice Book § 37-11. Id., 109-110. Thereafter, the defendant was convicted and the trial court denied the defendant’s motion for a new trial. Id., 109. The Appellate Court had concluded that “the prosecutor’s statement regarding the part, B information tainted the case and constituted plain error requiring a new trial. State v. Fitzgerald, 54 Conn. App. 258, 266, 737 A.2d 922 (1999).
This court granted the state’s petition for certification and reversed the judgment of the Appellate Court. State v. Fitzgerald, supra, 257 Conn. 110-11. We concluded that “[t]he improper disclosure by the prosecutor in this case did not amount to a mistake so manifest as to constitute plain error. Our review of the record reveals that any harm caused by the improper disclosure did not in any way undermine the validity of the guilty verdict. The trial court found that the evidence presented in the case sufficiently satisfied the state’s burden of proving guilt beyond a reasonable doubt. Our careful review of the evidence supports this conclusion. Also we cannot conclude, as a finding of plain error requires, that the prosecutor’s comment implicates the public confidence in our judiciary. Finally, we find nothing in the record that leads us to conclude that the trial court’s verdict was unreliable or that it constituted a manifest injustice to the defendant.” Id., 112.
In so concluding, we stated that “[t]he Appellate Court should have reviewed the record to determine whether the trial court abused its discretion in denying the defendant’s motion for a new trial”; id., 112; and we concluded that the trial court did not abuse its discretion in that respect. Id., 112-13. We noted that on the facts of the particular case, posttrial comments demonstrated that the trial judge had forgotten about the prosecutor’s comments, and that we could not conclude that, “in the total absence of illicit motivation or biased judicial behavior, the prosecutor’s comment here amounts to an error requiring a new trial.” Id., 113. We held that, “[o]n the facts of this case, the prosecutor’s comment before the court appears to be more of a technical violation of the rules of practice rather than a substantive deprivation of the defendant’s right to an impartial fact finder.” Id., 114-15.
We discuss briefly the defendant’s reliance on the Appellate Court’s decisions in State v. Falcon, supra, 68 Conn. App. 884, and State v. Washington, supra, 39 Conn. App. 175. We begin with Washington, a probation violation case, which we conclude is distinguishable on its facts because, in that case, the trial court had: (1) made its own offer to the defendant; State v. Washington, supra, 177; and (2) made comments during plea bargaining “indicating the judge’s prehearing belief that the defendant was probably engaged in illegal activities [that] along with the implicit notion of guilt associated with the offers, cast serious doubt on the court’s impartiality.” Id., 180; id., 179-80 (referring to “ ‘probably illegal’ ” reasons for defendant’s possession of a beeper). Moreover, in Washington, the trial court made intemperate remarks to the defendant prior to sentencing him after finding him in violation of probation. Id., 181 (in addition to longer sentence than was offered, trial court reneged on plea bargain offer to allow defendant to get his affairs in order before starting sentence, and stated that “ ‘[rjemember you had a chance to just get rid of everything and you did not, which was very foolish’ ”). Accordingly, we conclude that Washington is distinguishable from the present case on its facts, and was, as a paradigmatic example of the appearance of judicial vindictiveness that is contemplated by the Niblack rule, a proper candidate for plain error reversal.
The Appellate Court decision in State v. Falcon, supra, 68 Conn. App. 884, is vastly closer to the present case than is Washington. In Falcon, the Appellate Court followed Washington and concluded that it was plain error for the trial court to preside over the defendant’s trial after having participated in plea bargaining negotiations held more than two years earlier, a fact which none of the participants appeared to remember at the time of trial. Id., 889. The Appellate Court concluded that “actual prejudice is not required,” and that “the existence of impartiality might reasonably be questioned and the fairness and integrity of and public confidence in the judicial proceeding affected when a court presides over the trial and sentencing after participating actively in plea negotiations.” Id., 889. Beyond a posttrial sentence greater than was offered during plea bargaining, the Appellate Court did not cite any examples of apparently biased conduct by the trial court. Accordingly, to the extent that the Appellate Court decision in State v. Falcon, supra, 884, conflicts with principles set forth in our opinion herein, it is overruled.
The dissent expresses concern about the dangers of judicial participation in plea bargaining, and states that “we as a reviewing court can neither indulge a presumption of regularity nor necessarily evaluate the resulting harm” because, “[i]n orderto evaluate with any degree of confidence whether the concerns associated with active participation in plea bargaining by the judge responsible for the trial have indeed materialized, the proceedings in their entirety would have to be open for inspection.” The dissent then notes that, “only one side of the equation is open for inspection” because pretrial proceedings generally are not part of the record. We agree with the dissent’s concerns with respect to the inherent impossibility of properly reviewing unrecorded proceedings, but we conclude that they simply are not a factor in the present case because the trials and the plea bargaining session at issue are entirely on the record, which is adequate for appropriate appellate review.
We discuss briefly the defendant’s claim, as an alternate ground for affirming the judgment of the Appellate Court, that the trial court’s failure to follow the Niblack, rule is a due process violation reviewable pursuant to State v. Golding, supra, 213 Conn. 239-40. We reaffirm our prior conclusions that the Niblack rule is not, by itself, constitutional in nature. See, e.g., Safford v. Warden, supra, 223 Conn. 190-91. We acknowledge that the risks managed by the Niblack rule relate to the constitutional requirement that a defendant receive a trial before a court who, at the very least, appears free of bias. See, e.g., Tumey v. Ohio, 273 U.S. 510, 532, 47 S. Ct. 437, 71 L. Ed. 2d 749 (1927) (“[e]very procedure which would offer apossible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the [s]tate and the accused, denies the latter due process of law”); Cameron v. Cameron, supra, 187 Conn. 170-71 (“[t]he appearance as well as the actuality of impartiality on the part of the trier is an essential ingredient of a fair trial”). This interest, however, does not require per se reversal, but rather is protected by appellate review of the record for actual indications that the appearance of impartiality has been shattered.
After hearing arguments from the state and the defendant, the trial court informed the defendant that it was “commendable” that he was “concerned about how [he was] going to do [his] 200 hours of community service. But as far as deciding whether you violated the condition of probation, I know that the condition I put on you was substance abuse screening, evaluation and treatment as recommended by probation. That is clear from the exhibits that have been submitted. I don’t disagree that there’s nothing—I didn’t specifically put a condition of any anger management counseling, although I think probation has that inherent authority, especially when one of the conditions was [that] you do not assault, threaten or harass your mother.
“But I’m not concerned about that. I’m more concerned about the fact that you just refused to do the inpatient treatment. I think it’s a—you were convicted as a third [driving while intoxicated] offense. You received a very
“I feel if you differed with that, then maybe you could have filed a modification or come back before this court to attempt to modify your probation, but that’s not exactly what happened.
“So I do find based on the reliable and probative evidence that was supplied here, based on a fair preponderance of the evidence that you did violate that condition by not complying with the inpatient treatment that was inherent in my general order of probation of substance abuse evaluation, treatment and testing as deemed appropriate. So I do believe and I am finding that you did violate that probation.”
The trial court recited the defendant’s convictions since 1991 of interfering with an officer, failure to appear, trespass, breach of the peace, disorderly conduct, driving while intoxicated, and operating a vehicle with a suspended license.
The court explained to the defendant: “I don’t know if some of these things require testimony. They don’t sound like they’re proper for a motion to dismiss. You know, you’re charged with interfering or resisting arrest. Somebody could still interfere and resist arrest and yet the police may do something after that that is wrong, but it doesn’t mean you didn’t interfere. It’s really not appropriately handled by an oral motion to dismiss; so I really don’t see a basis for the motions to dismiss and I’m going to deny them at this time. Now, maybe some of the things you’re indicating are actual defenses to what you’re charged with and these things may come up at trial and a,jury certainly may end up finding you not guilty, but I don’t think they’re properly subject to a motion to dismiss in the way that it’s been presented to this court.”
“The Court: Do you have any, are you going to wear any other clothes in front of the jury? You don’t want to be in front of the jury with those.
“[The Defendant]: Well, the thing is all my clothes are in the house that I was charged for criminal trespass.
“The Court: Will you be able to get him some substitute clothing as standby counsel?
“[Standby Counsel]: I think I could do that.
“The Court: Don’t you have access to clothes or no, I don’t know.
“[Standby Counsel]: We can do something. We’ll try and do something.
“The Court: All right. If nobody else can get you clothes, they will try to get something else because you don’t want to appear in front of a jury like that.
“[The Defendant]: No, I would assume not.
“The Court: Because you don’t want the jury to know that you are incarcerated. What else, do you have any other questions . . . ?
“[The Defendant]: No. No, sir.”
We also note that, when the trial court recanvassed the defendant to ensure his competency to proceed pro se, the trial court explained to the defendant trial procedures and jury selection. Moreover, after explaining the importance of the rules of evidence, the trial court granted the defendant’s request to spend some time with standby counsel to learn the rules.
“[The Prosecutor]: One other issue. Your Honor was the one who signed the arrest warrant that doesn’t seem to present any problem to—from what I can see because—
“The Court: Well, I don’t think so, unless he was challenging the arrest warrant. I think it is a problem if I signed the search warrant, he is attacking the search—I don’t recall even signing the warrants, but I don’t see it as any problem. Do you see it as a problem?
“[The Defendant]: The warrants, the warrant that you signed?
“The Court: He says I am the one who signed the arrest warrants for your—
“[The Defendant]: Well, I had asked, I had asked the police to show [me] the warrant. They asked me to surrender and I said—
“[Standby Counsel]: Could I just have a moment with him?
“The Court: All right. I don’t know if that is quicker, but . ... Do you have a problem with me sitting on even—
“[The Defendant]: No objection.
“The Court: Okay. All right. Well, I will ask him some more questions tomorrow.” (Emphasis added.)
The trial court then denied the defendant’s motion to present the jury with pamphlets reprinting the constitution and the bill of rights, but explained to the defendant the procedure by which exhibits could be admitted and presented to the jury.
The defendant and his mother had an argument in September, 1999, that led to a physical altercation between the two in which he struck her in the face. She told him to leave the house and not return, and the two have not spoken since that time.
The defendant asked the officers on cross-examination whether they had struck him in the face during the altercation; they denied doing so.
The defendant also testified on his own behalf. He explained his troubled relationship with his mother, and stated that he only wished to see the officers’ arrest warrant dining the altercation. The defendant also testified that he never understood that he was to stay away from his mother’s house, because “everything I own is in that house.” He did admit that he did not have a key to the house and that in the past, he could retrieve his belongings only if he was escorted by another family member or a police officer.
We do note that the trial court mentioned the plea negotiations at this point, stating: “To have a family come in here and testify your mother, your brother, your sister-in-law, they took no pleasure in testifying against you. I mean, this was a case, I felt, that could have been worked out for a very, very reasonable disposition. You wanted a trial that, clearly, was your right to have a trial . . . but you not only put yourself through a trial you put your family through this, which was difficult. Publicity on it, things in the newspaper about your mother testifying, I mean, I thought that was extremely sad.” (Emphasis added.)
Indeed, we find most telling the defendant’s failure on appeal to argue any examples of legal error with respect to the conduct of the trial, or any other manifest ipjustice beyond the Niblack violation.
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 consequences 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
“[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” State v. Golding, supra, 213 Conn. 239-40.
At the pretrial proceedings before Gordon, J., the following colloquy occurred:
“The Defendant: I’d like to go pro se on the case for sure. There’s no way that we’re going to be [able to] handle this with [the public defender] representing me.
“The Court: Well, that may be true. But before I’m going to let you go pro se, since you’re facing time in jail, I’ve ordered that an examination be made of you to find out whether or not you’re competent to either represent yourself or work with a lawyer, so that I know what to do.
“The Defendant: Well, I’m being charged with two class A misdemeanors, which carry a maximum of two years.
“The Court: Right.
“The Defendant: And I’m willing to sit and take this to a trial and I’d like to—
“The Court: Well, I understand that. But you have to understand that whatever you’re willing to do, part of my job is to make sure that your constitutional rights are protected while you do it. And in order to do that, I need to know whether or not you are A, able to represent yourself or B, able to work with your lawyer. Okay? So I’m ordering that you be examined to make sure that you do that.
“Now, if it comes out that you are, then we’ll probably accede to your wishes. But I need to do that first.
“The Defendant: Okay. Well, in the meantime, ma’am, I would like to be on the speedy trial list, please, so that—
“The Court: I can’t do that orally. You’ll have to make an application for a speedy trial. But I think the proceedings are stayed while the other matter’s taking place, the examination’s taking place. Okay? So I need to do that first. But you can send in your form, you can talk to one of the counselors at the jail. They’ll help you in filling it out.”
The competency report reviewed the defendant’s medical and psychological history and social background. The clinical competency panel concluded that the defendant “was able to understand the proceedings against him and assist in his defense.” They noted that the defendant “had a solid understanding of the char ges pending against him, the underlying allegations, and the legal system in general,” and that the defendant “stated accurately” the exact charges, his plea options, and had “an advanced understanding of courtroom personnel and procedures.”
After finding the defendant competent, the trial court, Fischer, J., was apprised by the public defender that the defendant wished to renew his motion to discharge counsel and proceed pro se. The following colloquy then occurred:
“The Court: Is that what you want, sir?
“The Defendant: Yes, sir.
“The Court: You want to represent yourself?
“The Defendant: Yes, sir.
“The Court: Do you want to have your public defender withdraw from representing you?
“The Defendant: Well, I’d like to represent myself. If it would be in the court’s better interest to have him standing next to me while I represent myself, then that’d be fine with me.
“The Court: Well, sir, I think it’s in your best interest to have him represent you. He’s a—
“The Defendant: I prefer to represent myself, sir. I’m the guy sitting in the jail, and I’ll take care of that.
“The Court: And what’s your request? That he stand next to you?
“The Defendant: No. No. That’s—no. I said if that’s—if that would help— if that would make the court feel better, then ....
“The Court: What’s the next court date? What date are we using?
“[The Prosecutor]: It depends on what we’re going to do. We can go two weeks, Your Honor.
“[The Public Defender]: I think he wants to try and do some more research. Is that?
“The Defendant: Yeah. I’d like to spend a little time in a legal library. I might need some documentation to bring back to the jail with me because they won’t just let you go into the legal library without some documentation that I’ll be representing myself. I’ve already tried, and they wouldn’t allow me to.
“The Court: Have you ever represented yourself before?
“The Defendant: No, but I took a couple of legal classes in Manchester Community College, and I did complete high school, and, you know. Alls I know is my constitutional rights have been violated to a certain extent here, and I’m willing to go to trial to prove that.
“The Court: You have the absolute right to go to trial. My concern is that—and I know you’ve taken some legal courses, and you’re a graduate, a high school graduate. The gentleman to your right has been practicing law, does this for a living. He’s extremely competent, and I think you would be in much better hands and a much better position to have an attorney being your advocate on this case. I know I’m repeating myself, but I just want to make clear where you know where I’m coming from.
“The Defendant: No, I’ll take care of myself here, sir.
“The Court: Okay. I’m going to allow [the public defender] to withdraw. So you’re going to be representing yourself. You need to file a pro se
“The Defendant: A little research.
“The Court: All right.
“Defendant: I’ve been having a hard time getting paperwork there also. There was a female judge on the bench, and I mentioned that I wanted to file a request for a speedy trial, and she sent me back to the jail and told me to write to the counselor, which I did. They told me to write to records. I wrote to records. I haven't gotten anywhere with the paperwork.
“The Court: Is three weeks enough time for you to do your research?
“The Defendant: It should be. Yes.
“The Court: All right. So we’re going to see you back here on March 20th. That’s three weeks from today. Get as much research done as you can, and we’ll see you back on that day, and we’ll address your situation on that day. Okay?
“[The Public Defender]: For the record, Your Honor, I’ll provide him copies of the police reports and the § 54-56d report, copies of [the] letter he sent me, and also maybe our investigator will get a copy of the appearance that he files and help him file that.”
We note the defendant’s argument that that state already has conceded in the Appellate Court that the February 27, 2002 canvass satisfied neither the rules of practice nor the constitutional standards for waiver of the right to counsel. The state, however, contends in this court that the February 27, 2002 canvass satisfies constitutional standards, particularly when viewed in the context of the prior proceedings and the competency report. We will review the state’s arguments because the Appellate Court decisions did not reach the waiver of counsel issue. See State v. Chapman, 229 Conn. 529,
We discuss briefly the defendant’s claim that his choice was not a knowledgeable one because the trial court improperly failed to inquire at the February 27,2002 canvass as to whether the defendant wanted a different appointed attorney. We conclude that this claim lacks merit, as this defendant, who was not shy about asserting his rights while proceeding pro se, did not ask the trial court for substitute counsel at any time, instead emphasizing his desire to proceed pro se. Moreover, it is well settled that “a criminal defendant does not have the right to have the public defender of his choice.” State v. Oliphant, 47 Conn. App. 271, 278-79, 702 A.2d 1206 (1997) (“[a]s long as the defendant clearly and unequivocally indicates that he wants to proceed pro se instead of proceeding with the public defender appointed for him, his waiver of counsel is knowing and voluntary”), cert. denied, 244 Conn. 904, 714 A.2d 3 (1998); see also United States v. Iles, 906 F.2d 1122, 1130 (6th Cir. 1990) (“The right to counsel of choice, unlike the right to counsel, however, is not absolute. An indigent defendant has no right to have a particular attorney represent him and therefore must demonstrate ‘good cause’ to warrant substitution of counsel.” [Emphasis in original.]); People v. Burton, 48 Cal. 3d 843, 855, 771 P.2d 1270, 258 Cal. Rptr. 184 (1989) (“[T]here is no basis in the record for the view the court should have realized [the] defendant was making a motion, not to represent himself, but to substitute counsel. Although [the] defendant expressed dissatisfaction with his attorney, he made repeated, explicit requests to represent himself and gave reasons why he thought he would be more persuasive and effective than counsel. He never suggested he would like a different attorney. . . . Nor is it the rule that whenever a defendant makes a motion to represent himself on the basis of dissatisfaction with counsel, the court automatically should inquire whether he would Uke to make a motion for substitution of
“The fifth amendment to the United States constitution provides in relevant part: ‘No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb . . . .’The double jeopardy clause of the fifth amendment is made applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). ‘Although the Connecticut constitution has no specific double jeopardy provision, we have held that the due process guarantees of article first, § 9, include protection against double jeopardy.’ ’’State v. Colon, 272 Conn. 106, 293-94, 864 A.2d 666 (2004).
In State v. Flynn, 14 Conn. App. 10, 20, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988), which was cited by the defendant, the Appellate Court concluded that “the crimes of interference with an officer and assault on an officer constitute the same offense and because there is no expression of legislative intent that the crimes warrant separate punishment, the defendant’s conviction on both counts one and four [of the information] violated the constitutional and common law prohibitions against double jeopardy.” Although Flynn also involved multiple police officers, it is distinct from both the present case and Jenkins because, in that case “neither the information nor the court’s jury instructions specified what act was alleged to constitute a violation of which statute. The information states the exact same place and time in connection with all four crimes, and is silent with respect to any particular act which violates any particular statute. We must therefore conclude that, for the purpose of double jeopardy analysis, the crimes charged arose out of the same act or transaction.” Id., 17.